Wilson v Montemaggiori
[2010] WADC 55
•29 APRIL 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WILSON -v- MONTEMAGGIORI [2010] WADC 55
CORAM: STONE DCJ
HEARD: 3-6 JUNE, 14 & 15 DECEMBER 2009
DELIVERED : 29 APRIL 2010
FILE NO/S: CIV 1394 of 2007
BETWEEN: PATRICK MICHAEL WILSON
Plaintiff
AND
ELISA MONTEMAGGIORI
Defendant
Catchwords:
Damages - Personal injury - Motor vehicle accident - Liability admitted - Contributory negligence admitted - Loss of earning capacity
Legislation:
Income Tax Assessment Act 1997
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded
Representation:
Counsel:
Plaintiff: Mr K S Pratt
Defendant: Mr J P T Olivier
Solicitors:
Plaintiff: Trewin Norman & Co
Defendant: Talbot Olivier
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) Aust Torts Reports 81-043
Fontaine v Quality Platers (1994) 12 WAR 71
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Morris v Zanki (1997) 18 WAR 260
Pene v Murphy [2004] WASCA 103
Plenty v Argus [1975] WAR 155
Todorovic v Waller (1981) 150 CLR 402
STONE DCJ:
Introduction
On 4 May 2006 Mr Patrick Wilson fell off his bicycle at an intersection and broke his collarbone after colliding with a motor vehicle driven by Ms Elisa Montemaggiori. He was treated for a comminuted fracture of the left clavicle and put into a collar and cuff.
When the fracture did not appear to be healing Mr Wilson was referred by his family doctor to an orthopaedic surgeon. Mr Wilson underwent an open operation with internal fixation of a metal plate and screws to the left clavicle to stabilise the fracture and increase its chance of union. Subsequently the plate and screws were removed. Although the fracture was united Mr Wilson continued to suffer from pain and stiffness of the left shoulder, ongoing headaches and disturbed sleep. The orthopaedic surgeon suggested further shoulder surgery could alleviate his symptoms. However, Mr Wilson did not wish to undertake another surgical procedure.
At the time of the accident Mr Wilson was 38 years of age and married. His wife was pregnant with their first child and she was working as a senior sales director. He was a tree climber and a renovator of residential properties. He was in the process of renovating a residential property in Embleton that had been acquired for resale. He had not worked as a tree climber since taking a break from that occupation in late 2004. He claimed he intended to resume work as a tree climber when his wife ceased working to be a stay at home mother.
Mr Wilson claimed he had been unable to return to work since the accident. His wife had returned to work after the birth of each of their two children. He stayed at home and primarily cared for the children. He claimed that because of the accident the Embleton property had to be sold before qualifying for the discounted rate of capital gains tax.
Mr Wilson claimed damages for pain and suffering, loss of amenity, past and future loss of earnings, and past and future medical treatment expenses and travel expenses arising out of the accident.
Issues not in dispute
Liability for the accident had been agreed by Mr Wilson and Ms Montemaggiori at 75:25 in favour of Mr Wilson because of his contributory negligence. Any award of damages should be reduced by 25 per cent accordingly.
Issues in dispute
1.The nature and extent of Mr Wilson's physical injuries.
2.The extent of Mr Wilson's residual disability.
3.Whether Mr Wilson had been able to return to work and if so, his work capacity.
4.Whether there had been an unreasonable failure by Mr Wilson to mitigate his loss, in failing to return to gainful employment and/or failing to pursue recommended surgical treatment.
5.Mr Wilson's past loss of earning capacity as a tree climber and past loss of earnings from the sale of the Embleton property.
6.Mr Wilson's loss of future earning capacity.
7.Mr Wilson's past medical treatment expenses and travel expenses.
8.Mr Wilson's future medical treatment expenses.
9.General damages.
The nature and extent of Mr Wilson's physical injuries
The extent of Mr Wilson's residual disability
Mr Wilson
In the accident Mr Wilson landed on his left side in the road and broke his collarbone. He felt severe pain in his shoulder and could not move his neck. Following discharge from hospital he felt severe pain on the left side of his neck and shoulder, he had difficulty sleeping and he suffered from headaches every morning. He saw his family doctor, Dr Atlas who recommended analgesia for the pain. Although there was some improvement he continued to suffer from the same symptoms.
He had broken his right collarbone in 1999/2000 but that injury had healed in three to four months. When the left shoulder did not appear to be healing he was referred by Dr Atlas to an orthopaedic surgeon, Mr Hogan for review. On 10 August 2006 Mr Hogan performed, under general anaesthetic, an open reduction and internal fixation of a metal plate and screws to his left clavicle because the fracture had not united. Following the surgery he continued to suffer from broken sleep, headaches in the morning, soreness in the neck, pain and clicking in the shoulder and a general tingling in the arm. On 20 June 2007 Mr Hogan removed the plate and screws from his left clavicle under general anaesthetic.
Since the surgery to remove the plate he had pain and stiffness of the left shoulder, ongoing headaches and disturbed sleep. Although Mr Hogan suggested further surgery to alleviate his symptoms, he did not wish to undertake another surgical procedure because success could not be guaranteed.
He still felt very tender across the collarbone and there was only a certain amount of weight he could bear before it became too painful. The ongoing pain had affected his ability to work as a tree climber and residential property developer, his intimacy with his wife and his ability to do all the household chores. He no longer rode a bicycle. He was unable to lift weights of substance when working out at the gym.
Covert surveillance footage
In mid–2008 Mr Wilson was covertly filmed by the statutory insurer for Ms Montemaggiori on two occasions. In the film footage Mr Wilson was seen exiting his car. He then lifted his small daughter from the rear passenger side of the car and carried her over his right shoulder. He was carrying a small bag in his left hand.
On two occasions in late 2008 Mr Wilson was covertly filmed. In the film footage he was seen carrying his daughter over his right arm and in the company of his wife and baby. He was also seen carrying his daughter primarily using his right arm.
Medical evidence
Dr Atlas
When Mr Wilson consulted his general practitioner, Dr Leonard Atlas after the accident he was tender over the left muscles of the thoracic spine, his left shoulder was sore and it had a decreased range of movement. He was prescribed analgesia. Following the surgery to fix the plate to the shoulder Dr Atlas noted Mr Wilson complained of disturbed sleep, headaches in the morning, thoracic spine discomfort, pain and stiffness to the neck, left shoulder and arm. He recommended physiotherapy, hydrotherapy, massage therapy and acupuncture to alleviate the symptoms. When he last treated Mr Wilson for accident related symptoms he prescribed analgesia in mid‑2006 and anti-inflammatory medication in early 2007. Mr Wilson reported no changes in his symptoms nor any improvement or deterioration in his condition when reviewed in 2008.
Mr Hogan
Mr Gregory Hogan, a specialist orthopaedic surgeon in trauma surgery and knee and shoulder surgery, was Mr Wilson's treating orthopaedic surgeon upon referral by Dr Atlas. He initially undertook a conservative management approach with Mr Wilson although non-union of the fracture persisted and surgery was required. When Mr Wilson underwent the open reduction internal fixation surgery, his left clavicle was very close to union although it had a fairly marked deformity. Subsequently, Mr Wilson asked for the plate to be removed because of pain in the lateral aspect of the shoulder.
Following surgery to remove the plate, Mr Wilson complained of acromio-clavicular joint pain. He tried to settle the pain with cortisone injections. He also explained to Mr Wilson in late 2007 that he could undergo surgery with arthroscopic/acromio-clavicular joint resection (a general anaesthetic procedure through a telescope to take out the last 10 millimetres of the distal clavicle to remove the pain generating from the joint and the damage to the bone) which, in his opinion, usually left patients with good long term function and strength, after a recovery period of between six weeks and three months.
The next time he saw Mr Wilson was in 2009. Mr Wilson had a full range of movement but he was mildly tender over the joint. At that time Mr Wilson had acromio‑clavicular joint arthropathy, which in his opinion, was accident related. He arranged repeat CT scans and advised Mr Wilson to return as soon as this was done. Mr Wilson did not return.
When he viewed the covert surveillance footage he noted Mr Wilson was right handed and most of the activity he conducted was with his right hand. He considered Mr Wilson had reasonably good function of his left acromio‑clavicular joint as he was seen giving his daughter a shoulder ride (over his right shoulder) which would be limited by significant acromio‑clavicular joint pathology. Mr Wilson was also seen reaching across his body which was an impingement test for the left acromio‑clavicular joint and appeared inconsistent with active marked acromio-clavicular joint arthropathy.
Mr Watson
When Mr Peter Watson, a neurosurgeon, saw Mr Wilson in 2006, he concluded Mr Wilson sustained a fractured left clavicle, soft tissue and ligamentous injuries to the cervical spine and referred headache and left arm symptoms. He could not see any evidence of neurological signs suggesting spinal cord or nerve root impingement. On examination in 2008, Mr Wilson continued to complain of neck pain and headaches. There had been only mild improvement in his symptoms. On examination in 2009, Mr Wilson continued to complain of the same symptoms apart from tingling in the left arm. He had ongoing pain in the cervical spine. The main symptom was pain along the distal third of the clavicle and into the shoulder. He concluded there was marked reduction in Mr Wilson's ability to abduct (extend) the shoulder joint and this remained his main disability both in terms of his function and in terms of his regaining employment.
Dr Ker
Dr John Ker, a consultant physician in rehabilitation medicine, saw Mr Wilson on a number of occasions in 2007, 2008 and 2009. Over that period Mr Wilson had modestly improved his range of left shoulder movements. However, despite his improved range of movement, he had substantive physical limitation with the use of his left arm in restive or lifting activities of substance. He considered that because of the passage of time since the accident and the persistence of Mr Wilson's symptoms there was little likelihood that they would, over further time, resolve spontaneously. The restrictions Mr Wilson experienced were more likely to remain with him on a long term basis. The activities undertaken by Mr Wilson in the covert surveillance footage did not alter his opinions.
Dr Home
Dr Alan Home, an occupational physician, saw Mr Wilson in 2008 and 2009 and he viewed covert surveillance footage of Mr Wilson's activities. Mr Wilson presented with a history of persisting activity‑related left shoulder pain. The diagnosis based on clinical grounds was of a mild left rotator cuff tendonopathy. He did not detect features of acromio‑clavicular joint pathology despite a previous positive anaesthetic response to cortico‑steroid injection administered to the acromio‑clavicular joint. In his opinion Mr Wilson had not sustained any residual incapacity as a result of his left clavicle fracture. He concluded it was probable Mr Wilson had sustained a minor soft tissue injury to the shoulder that was causing him partial incapacity. The activities undertaken in the covert surveillance footage were reasonably consistent with his clinical presentation.
Mr Robinson
Mr Anthony Robinson, an orthopaedic surgeon who specialised in the knee, the ankle, the foot and the shoulder, saw Mr Wilson on 15 September 2009. There was satisfactory healing of Mr Wilson's left clavicle, impingement of the left shoulder and soft tissue inflammation of the cervical spine. After reviewing the results of the recent MRI of Mr Wilson's left shoulder, he noted wasting of the muscle in the supraspinous fossa (muscles occupying the shoulder blade) which was accident related; moderate arthritis of the acromio‑clavicular joint which was not accident related; mild bursitis of the sub acromial space which was accident related; some minor tears of the rotator cuff which were not accident related; and some non‑specific abnormal signal in the teres minor muscle which may reflect some auxiliary nerve dysfunction. He did not find any signs of motor dysfunction with regard to the auxiliary nerve.
Findings as to the nature and extent of Mr Wilson's physical injuries and the extent of his residual disability.
I am satisfied on the evidence of Mr Wilson and the medical evidence of Dr Atlas, Mr Hogan, Mr Watson, Dr Ker and Mr Robinson that as a result of the accident Mr Wilson suffered soft tissue strain injuries to his cervical spine and a relatively severe fracture to his left clavicle which required two surgical procedures under general anaesthetic. I am also satisfied by this evidence that Mr Wilson still had some restriction of movement in his left shoulder and he continued to feel tender across the collarbone. I accept there was only a certain amount of weight he could bear before he experienced pain. I also accept that Mr Wilson suffered related headaches and disturbed sleep. There had been some limited impact on his intimacy with his wife, ability to do household chores and sporting recreation.
Whether Mr Wilson had been able to return to work and if so, his work capacity.
Mr Wilson
He was born on 10 July 1967. He left school after the first term of year 11. He worked in a cabinet making business for 12 months before undertaking a panel beating apprenticeship for four years. He worked in the panel beating industry for a further five to six years. He then commenced a lawn mowing and landscaping business with one of his brothers. He and his brother were taught tree lopping by the brother's friend. He worked in partnership with his brother doing tree lopping and garden clean-up work for eight to nine years.
He had not worked as a tree climber since deciding to take a break from that occupation in December 2004. He intended to resume work as a tree climber by 1 August 2006 when his wife ceased work because of the pregnancy with their first child. Their plan was that she would be a stay at home mother and he would be the bread winner. At the time of the accident he was in the process of renovating a residential property in Embleton that had been acquired for resale.
Since the accident he had been unable to return to work as a tree climber because it involved a lot of overhead work. Tree pruning involved the cutting, grabbing and throwing of quite large branches with arms above the head which physically he could not do because of the injuries sustained in the accident. He had been unable to return to work as a property developer because both he and his wife would have to be working to afford the purchase and renovation of residential properties for resale. After the accident their plan had to change. Mrs Wilson returned to work after the birth of each of their two children. He stayed at home and cared for the children.
Dr Atlas
Dr Atlas considered Mr Wilson was unable to work as a tree lopper or do manual work whilst renovating houses but he could do clerical duties or non‑manual work such as driving, sales or reception type work.
Mr Hogan
Mr Hogan expressed the view that after a clavicle fracture he would keep the patient off work for two weeks. There would be a return to only light duties between two to six weeks post operatively. He would expect a patient to return to work on full duties at three to four months. If there was any pain this could be extended to four to six months if the job was extremely exertional such as tree lopping. After removal of the plate he would expect the patient to be doing normal duties including overhead duties by six weeks.
He was unable to say when Mr Wilson regained his capacity to work as he did not return to him for regular review. He considered Mr Wilson could undertake most but not all of the activities of a tree lopper at his last review. However, he expressed the view that whilst there was a large difference in the manual ability required for property developing and tree lopping, the expected outcome of an 80 per cent chance to return to work remained consistent with an even higher chance of getting Mr Wilson back to property developing. He acknowledged this would require a strong left arm for significant overhead function. He could not ascertain why Mr Wilson had been unable to return to work for three years after his injury and the subsequent surgery. He considered Mr Wilson could have worked as a driver, a salesman, a security guard and in most other manual and non-manual activities.
Mr Watson
Mr Watson expressed the opinion that because of the restrictions to the left shoulder joint and left clavicle injuries, he would be surprised if Mr Wilson was able to return to work as a tree lopper or effectively as a home renovator. On the basis of his cervical spine symptoms alone it would be unlikely that Mr Wilson could return to tree lopping. Mr Wilson required retraining into occupations that were more supervisory or sedentary in nature.
Dr Ker
Dr Ker considered Mr Wilson would return to the work force but in activities less physical than tree lopping. He also did not consider Mr Wilson fit in the foreseeable future to undertake physically demanding work which involved the continuous use of his left arm at or above shoulder level, repeated heavy lifting and general labouring duties where he used both upper limbs in resistive tasks; such as digging, shovelling, carrying or moving objects of substance.
Dr Home
Dr Home noted Mr Wilson was able to undertake gym exercise lifting and bench pressing up to 20‑30 kilogram weights despite his symptoms and retained excellent muscle tone in the upper limbs across the chest and upper body. This reflected capacity for bench height manual work. However, Mr Wilson had sustained a partial incapacity and to that extent it was reasonable to exclude him from very heavy manual handling, lifting objects in excess of 20 kilograms in weight on a repetitive basis and performing heavy lifting from above shoulder height. Mr Wilson’s partial incapacity for work was likely to be permanent. Mr Wilson retained a capacity for full‑time employment as a vocational driver, a process worker undertaking bench height process work in wood or metal fabrication, a furniture polisher, a sales representative, a sales assistant, a storeman, a transport clerk, a yardman, a surveyor's assistant, a security guard and a handyman.
Mr Robinson
Mr Robinson considered Mr Wilson would be unable to return to his job as a tree lopper because he would have trouble using his left arm when climbing trees as well as heavy lifting. He recommended Mr Wilson undergo a rehabilitation programme and re-education to re-enter the workforce.
Findings as to whether Mr Wilson had been able to return to work and if so, his work capacity.
I am satisfied on the evidence of Mr Wilson and the medical evidence that as a result of the accident Mr Wilson had a permanent incapacity to return to work as a tree climber. In his oral closing submissions Ms Montemaggiori's counsel conceded Mr Wilson was unable to return to work as a tree lopper after the accident and after the plate was removed.
I am also satisfied by the medical evidence that despite Mr Wilson's physical disability he had retained a capacity for full‑time employment in activities less physical than tree climbing, such as those mentioned by Dr Atlas, Mr Hogan and Dr Home, and which do not involve very heavy manual work or the continuous use of his left arm at or above shoulder level. In his oral and written closing submissions Mr Wilson's counsel conceded Mr Wilson had a retained capacity for work other than as a tree climber.
I accept that because of the change in his financial circumstances Mr Wilson had not resumed work as a property developer.
Whether there had been an unreasonable failure by Mr Wilson to mitigate his loss, in failing to return to gainful employment and/or failing to pursue recommended surgical treatment.
Mr Wilson
Mr Wilson said his child care role prevented him from looking for alternative work in lighter occupations. He accepted he had not made any efforts to return to the workforce since the accident. He held the hope that his shoulder would get better and he would make a full recovery. He had not looked for work because of his situation and his wife had to return to work to earn the sort of money to keep them going. He acknowledged he would have to go out and do something eventually. He had no clerical or computer skills.
He agreed he failed to pursue specialist review and treatment. He claimed Mr Hogan recommended another operation but he could not guarantee it was going to make much of a difference. He also claimed Mr Hogan said he could not guarantee an 80 per cent improvement.
"And why didn't you have that operation---I've already been through two and I just frankly without a guarantee this time did not want to go back under the knife again for a third time."
He said he discussed the option of another operation with Dr Atlas, Mr Watson, Dr Ker and Mr Robinson. He did not want to undergo another operation.
"(Neither) of those doctors were there to treat you, were they---They weren't treating me. They were examining me, seeing what my problems---
For medico-legal purposes, to produce reports for his Honour to read during this case---No, more for my benefit to see, you know, sort of what could be done. I mean if I could have had another surgery and it would have been a great chance of getting it better, I would have probably gone there. But under the advice of the professionals that I saw, I'm taking their professional advice.
I see---And having to go through the painful stuff I've already had to go through with the two surgeries, I wasn't prepared to go a third time."
He stated he did not have regular physiotherapy treatment because it gave only slight relief and he could not afford it. He found swimming too painful.
Mr Hogan
Mr Hogan considered that if Mr Wilson was in sufficient pain and having difficulty in not being able to work, his situation would very likely be improved by an acromio‑clavicular resection and sub acromial decompression (a procedure which treats impingement). If Mr Wilson underwent surgery he would have had an 80 per cent plus chance of a very good result with improved function of his left arm, although no surgical outcomes are guaranteed. Some of the good outcomes have significantly less pain, not interfering with lifestyle, but some ongoing pain. The best outcomes have no pain.
When he last reviewed Mr Wilson he had not at that stage recommended he undergo a further operation. The review was to see how Mr Wilson settled down non-operatively in the first instance. He accepted that it is always ultimately a patient's decision whether to undergo surgery. A decision not to undergo surgery would not be unreasonable medically.
Mr Watson
Mr Watson stated it would be wrong for him to try and second guess Mr Hogan if he recommended an acromio-clavicular resection.
Dr Ker
Dr Ker thought Mr Wilson's reluctance to have further surgical treatment was entirely justified. He doubted whether procedural treatment by local injection into the shoulder region or any form of surgery would further influence Mr Wilson's pain or further improve his function. He accepted Mr Wilson had made little or no improvement in strategies to return to work.
Dr Home
In Dr Home's opinion further operative intervention did not appear to be indicated based on the diagnostic imaging findings. He considered Mr Wilson retained the physical capacity to perform all forms of sedentary employment.
Mr Robinson
In Mr Robinson's opinion further operative intervention, which he did not rate as high as 80 per cent plus in success, was not indicated on the basis of the history, the examination and the recent MRI. Mr Wilson had a good range of movement, he was not significantly tender over the acromio‑clavicular joint, the procedure would not necessarily allow him to get back to his previous job and there are complications of surgery. If the MRI had indicated a significant radial cuff tear, a significant spur or sub cranial space bursar he would recommend that Mr Wilson be reassessed for surgery by the original shoulder surgeon. He had not read Mr Hogan's most recent report or the reports of Dr Ker and Mr Watson. He explained he gave an orthopaedic viewpoint after he saw Mr Wilson in a fixed period of time and he was relying upon him for the history.
Finding as to whether there had been an unreasonable failure by Mr Wilson to mitigate his loss, in failing to pursue recommended surgical treatment.
On the basis of Mr Hogan's evidence counsel for Ms Montemaggiori submitted that if Mr Wilson had the arthroscopic resection surgery he would have been fit to return to his pre-accident occupation after a recovery period of between six weeks and three months. Further, if the further surgery was not as successful as anticipated there should be a small component for damages otherwise there should be no allowance for damages for future economic loss.
In Mr Hogan's opinion there was an 80 per cent plus chance of improvement with further surgery although no surgical outcomes are guaranteed. At the last review Mr Hogan discussed this further surgery with Mr Wilson but he had not recommended it at that stage. Mr Robinson, on the other hand, did not rate the success of further surgery as high as 80 per cent plus and he did not consider the further operative intervention was necessary on the basis of the history, the examination and the recent MRI. It is unnecessary to resolve the difference in opinion between the orthopaedic surgeons for the reasons that follow: Fontaine v Quality Platers (1994) 12 WAR 71.
I understand and accept the reluctance of Mr Wilson to undergo the further surgical procedure without a guarantee of improvement. He made that decision after undergoing two surgical procedures under general anaesthetic and having sought the opinion of other medical practitioners. In the circumstances, I am not persuaded Mr Wilson acted unreasonably in refusing to undergo further surgery by arthroscopic resection: Plenty v Argus [1975] WAR 155.
Finding as to whether there had been an unreasonable failure by Mr Wilson to mitigate his loss, in failing to return to gainful employment.
I am satisfied by the evidence of Mr Wilson who acknowledged he had not looked for some other work and the medical evidence as to the type of activities he could undertake following the accident that there had been an unreasonable failure by Mr Wilson to mitigate his loss, in failing to return to some form of gainful employment in a lighter occupation.
Mr Wilson's past loss of earning capacity as a tree climber and past loss of earnings from the sale of the Embleton property.
Mr Wilson's loss of future earning capacity.
Mr Wilson
Mr Wilson testified that in 2004 he and his wife planned for him to take a break from tree lopping and then return to contract tree climbing from August 2006 when she commenced maternity leave. He would work as a contract tree climber until retirement, at the earliest 60 years of age. He gave no evidence about the gross or net weekly earnings he expected to earn as a contract tree climber when he returned to work or at any other time in the future. He intended relying upon tree firms advertising for a contract tree climber for his employment. He accepted there would be no superannuation. When working in partnership with his brother as a tree lopper he quoted jobs at a cost of $50 an hour for each of them. He accepted that an analysis of his income tax returns revealed that his earnings from tree lopping were $27,273 for 2000/2001; $37,372 for 2001/2002; $31,337 for 2002/2003; $26,512 for 2003/2004; and $5,416 for 2004/2005. He ceased working as a tree lopper in December 2004.
During 2004 and 2005 he renovated residential properties that had been acquired for resale after a period of 12 months ownership in order to qualify for the discounted rate of capital gains tax ("CGT"). In January 2006 he and his wife purchased the property in Embleton with the intention of renovating it and selling it after a period of 12 months ownership in order to qualify for the discounted rate of CGT. Following the accident the Embleton property was sold immediately when he and his wife panicked because of the heavy mortgage on the property, his wife's pregnancy, the severe problem with his shoulder, the stress of the accident, his inability to finish the renovation work and he did not know what they were going to do for an income.
In his Individual Income Tax Returns for 2003/2004 he declared capital gains of $37, 572 and a net capital gain of $18,786 (after applying the general CGT discount of 50 per cent on capital gains) for the purchase and sale of a property in Rivervale; for 2004/2005 he declared capital gains of $829 and a net capital gain of $414 (after applying the general CGT discount of 50 per cent on capital gains) for the purchase and sale of a property in Bedford; for 2005/2006 he declared capital gains of $56,956 and a net capital gain of $28,478 (after applying the general CGT discount of 50 per cent on capital gains) for the purchase and sale of another property in Bedford; for 2006/2007 he declared capital gains of $89,631 and a net capital gain of $44,815 (after applying the general CGT discount of 50 per cent on capital gains) for the purchase and sale of the Embleton property.
He testified his 2006/2007 Individual Income Tax Return was lodged in error because the Embleton property had been sold before it qualified for the discounted rate of CGT and an Amended Individual Income Tax Return for 2006/2007 was lodged. In the meantime, a Notice of Assessment for 2006/2007 issued from the Australian Taxation Office showing his liability for tax of $8,862.30 on taxable income after allowance for the CGT concession on the Embleton property. The Amended Individual Income Tax Return for 2006/2007 required Mr Wilson to declare as assessable income $89,631 that he had previously declared as capital gains on the Embleton property. An Amended Notice of Assessment for 2006/2007 issued showing his liability for tax of $23,792.80. He claimed that because of the accident the Embleton property had to be sold before he was entitled to the CGT concession and which would have relieved him of liability to pay the additional $14,930.50 in income tax (being the difference in taxable income between the Notice of Assessment for 2006/2007 and the Amended Notice of Assessment for 2006/2007).
Mrs Wilson
Mrs Gabriella Wilson was born in 1968. She had been married to Mr Wilson for 16 years. She had always worked full‑time. She worked in banking and then in a senior management level within the Telstra group of companies where she was earning a salary of more than $130,000 plus substantial fringe benefits. She resigned from that position in 2009 and she was now employed by another company as a senior sales manager with similar remuneration. She explained she always wanted to be a mother but because of a pregnancy termination she had undergone 15 years earlier she was unable to cope mentally with the prospect of having another child so she threw herself into her work. Around 2004 she felt mentally ready to start a family. She and Mr Wilson planned that he would take a two years break from tree climbing but he would return to work as a contract tree climber when she was pregnant and she gave up work. By that stage they should be financially secure and no longer reliant upon her income.
Following the accident and after the birth of their first child in September 2006 she did not resign as planned but returned to work in August 2007 after taking 12 months maternity leave. When she stopped working prior to the birth she went on sick leave followed by three month's paid maternity leave until October 2006 and then accrued annual leave of a couple of weeks. After that she and Mr Wilson lived off their overdraft and funds from the sale of the Embleton property. Although she wanted to stay at home with the baby she returned to work because they were financially stretched and Mr Wilson was unable to return to work as a tree climber because of the accident injury symptoms. In January 2008 she gave birth to their second child and she returned to work after taking 12 months maternity leave. She testified that if the accident had not happened she would not be working but a stay at home mother for their children.
Mr Sublet
Mr Robert Sublet was the proprietor of a tree lopping, tree surgery and stump grinding business which he had operated for 27 years. The objection to his expertise to give evidence about the tree lopping industry has been withdrawn by Ms Montemaggiori's counsel.
Mr Sublet employed one full‑time tree climber who worked between 40 and 45 hours per week. In July 2008 the tree climber was being paid $30 to $31 (gross) per hour. The tree climber was supplied with all necessary equipment, a company vehicle and the normal employment benefits. He had worked for Mr Sublet for about 23 years.
There did not appear to be a norm or standard for the earnings of tree loppers in Australia. The injury rate for tree loppers/tree climbers was high. The working capacity of a tree climber was not usually more than 15 years because of injury. However, a person working for himself/herself could pick and choose the jobs that he/she was then physically capable of doing.
Mr O'Dea
Mr Daniel O'Dea was the proprietor of a tree lopping business which he had operated for 20 years. The objection to his expertise to give evidence about the tree lopping industry has been withdrawn by Ms Montemaggiori's counsel.
Mr O'Dea currently employed two full time tree climbers who worked 8 to 10 hours per day for a gross rate of $30 per hour. The tree climbers were supplied with all necessary equipment.
Professor Mulvey
Professor Charles Mulvey had been a labour market economist for 45 years. His research into the labour market for the specific occupation of a tree lopper/climber did not reveal that the occupation came under any award of the Western Australia Industrial Relations Commission. If the occupation tree lopper/climber came under the award for gardeners the likely earnings revealed a minimum rate of pay of approximately $620 to $628 gross per week. A search for tree lopper advertisements in May 2009 revealed an advertisement offering $25 (gross) per hour. In his opinion a tree lopper working 40 hours per week would earn $1,000 (gross).
Mr Wilson's credibility
There were inconsistencies between Mr Wilson's evidence and the medical practitioners on such issues as whether he described himself to Mr Hogan as a property developer; whether he told Dr Home he could lift 50 to 60 kilograms on a bench press, he could scrub vanity basins, he could lift moderate weights below shoulder height, he did not experience left shoulder pain, he was a property developer and he did not require the use of analgesic medication; whether he told Dr Atlas he had not resumed physiotherapy due to the birth of the baby; whether he told Mr Watson he intended to return to work as a tree lopper for 12 months while his wife had maternity leave and the plan was for him to then take time off work as a tree lopper again and look after the child whilst his wife returned to work.
In my opinion Mr Wilson presented as an honest and reliable witness who was doing his best to explain his situation. He readily conceded he had not consulted a general practitioner or any other medical practitioner for treatment for his shoulder for two years, he failed to pursue specialist review and he did not seek employment in lighter occupations. I have not attached much weight to the inconsistencies between the testimony of Mr Wilson and what the medical practitioners recorded him as saying during consultation because on the material issues his testimony was supported by the evidence of the medical practitioners, his wife, the tree loppers and his annual tax returns.
Conclusion as to Mr Wilson's past loss of earning capacity as a contract tree climber.
In his closing submissions Mr Wilson's counsel conceded Mr Wilson had a retained earning capacity since 1 August 2006. Mr Wilson intended to return to work as a contract tree climber in August 2006 according to the evidence of Mr Wilson and Mrs Wilson, which I accept. In his closing submissions Ms Montemaggiori's counsel submitted Mr Wilson would have been able to return to some form of work other than that which might have involved repetitive movements with his left arm above his shoulder six to eight weeks after the accident and six to eight weeks after he had the plate removed. I find for these reasons Mr Wilson had a retained earning capacity since 1 August 2006.
I am satisfied on the evidence of Mr Wilson, Mr Sublet, Mr O'Dea and Professor Mulvey that upon his return to work on 1 August 2006 Mr Wilson could have earned at least $800 net per week as a contract tree climber, if he had not sustained the accident injuries.
For the reasons mentioned earlier I concluded that Mr Wilson was fit to engage in work involving lighter duties in a range of occupations ‑ a vocational driver, a process worker undertaking bench height process work in wood or metal fabrication, a furniture polisher, a sales representative, a sales assistant, a storeman, a transport clerk, a yardman, a surveyor's assistant, a security guard and a handyman – but he did not make any reasonable attempt to regain employment.
In the absence of evidence of the earnings Mr Wilson could have derived from the light duty occupations I will assess his retained earning capacity at a percentage of his earning capacity as a contract tree climber as at 1 August 2008 save for the accident: Bowen v Tutte (1990) Aust Torts Reports 81-043; Pene v Murphy [2004] WASCA 103. However, there are a number of factors that would have made Mr Wilson's entry into the job market difficult: his age, his level of education, his communication skills, his lack of experience in the occupations mentioned, his late entry into the employment market, the fact that he would be competing for employment with much younger persons and his disability.
Having regard to my finding as to the extent of Mr Wilson's ability to work in lighter occupations, the factors that disadvantage his entry into the job market and his failure to make any reasonable attempt to regain employment and using the Western Australian Government Department of Consumer and Employment Protection's Minimum Conditions of Employment Act Summary as a guide, I find that with effect from 1 August 2006 the amount of Mr Wilson's earning capacity should be reduced by 50 per cent.
Accordingly, with a retained 50 per cent earning capacity, between 1 August 2006 and judgment, being a period of 194.86 weeks, Mr Wilson would have earned $400 net per week or a total of $77,944 from his employment as a contract tree climber. As there was generally a high rate of injury in contract tree climbing a deduction of 3 per cent for contingencies would be appropriate to cover the chances of something untoward happening to Mr Wilson during the period covered in the past loss of earnings calculation making a total of $75,605.68: Morris v Zanki (1997) 18 WAR 260.
The interest at the rate of 3 per cent on Mr Wilson's past loss of earnings as a contract tree climber was calculated at $2,268.17.
Conclusion as to past loss of earnings from the sale of the Embleton property.
I accept the evidence of Mr Wilson and his wife that after the accident they panicked and sold the Embleton property as soon as possible. He had a severe problem with his shoulder, he was unable to work, she was pregnant with their first child and the property was heavily mortgaged. In the circumstances the accident was a contributing cause of the early sale of the Embleton property: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
I am satisfied that as a consequence of the accident the Embleton property had to be sold before Mr Wilson was entitled to the CGT concession and which would have relieved him of liability to pay $14,930.50 in additional income tax.
Subdivisions 115-A and 115-B of the Income Tax Assessment Act 1997 set out the tax liability law for discount capital gains and the discount percentage. A discount capital gain was a capital gain that met the requirements of s 115-10, s 115-15, s 115-20 and s 115-25: s 115-5. An individual could make a discount capital gain after 21 September 1999 that had been calculated without reference to indexation, on capital gain that resulted from a CGT event that happened to a CGT asset acquired at least 12 months before: s 115-10, s 115-15, s 115-20 and s 115-25. If the gain was made by an individual the discount percentage for a discount capital gain was 50 per cent: s 115-100(a)(i).
As an individual, Mr Wilson was entitled to claim a discount capital gain of 50 per cent on the capital gain resulting from the sale of the Embleton property if it was sold more than 12 months after it was acquired. The Australian Taxation Office accepted this was the position when it issued the Notice of Assessment for 2006/2007 with respect to the 2006/2007 Individual Income Tax Return that was lodged in error. The Australian Taxation Office previously accepted this was the position with respect to Mr Wilson's claims in 2003/2004 for CGT discount of 50 per cent on capital gains for the purchase and sale of the Rivervale property; 2004/2005 for CGT discount of 50 per cent on capital gains for the purchase and sale of the first Bedford property; and 2005/2006 for CGT discount of 50 per cent on capital gains for the purchase and sale of the second Bedford property.
The interest at the rate of 3 per cent on Mr Wilson's past loss of earnings due to being disentitled to the CGT discount was calculated at $447.92.
Conclusion as to Mr Wilson's loss of future earning capacity.
The assessment of damages for loss of future earning capacity does not have to involve a mathematical calculation and it cannot be arrived at with the benefit of precision as to what might have happened: Todorovic v Waller (1981) 150 CLR 402.
I am satisfied on the evidence of Mr Wilson, Mr Sublet, Mr O'Dea and Professor Mulvey that if Mr Wilson had not sustained the accident injuries and he continued to work as a contract tree climber until retirement he would have earned a net weekly income of at least $1,000.
I have already considered Mr Wilson's retained earning capacity and there is no evidence to indicate that will change from 50 per cent in the future. Mr Wilson will turn 43 years of age in July.
The discount for contingencies in respect of the normal vicissitudes of life and the likelihood of retirement earlier than 65 years of age given Mr Wilson's evidence that he intended to work until 60 years of age and Mr Sublet's evidence of the strenuous nature of the contract tree climber occupation and the high rate of injury. I have made a higher deduction for the risk of injury for future loss of earning capacity than for past loss of earning capacity because of the longer period of time: Morris v Zanki (supra). In my view a deduction of 15 per cent for contingencies would be appropriate.
Accordingly, with a retained 50 per cent earning capacity, Mr Wilson's future loss of earning capacity would be $500 net per week multiplied by 647.0 (6 per cent multiplier for 22 years to age 65 years), discounted by 15 per cent for contingencies or a total of $274,975.
Mr Wilson's past medical treatment expenses and travel expenses.
Mr Wilson's future medical treatment expenses.
Mr Wilson accepted that he had not consulted a general practitioner or other medical practitioner for treatment for his shoulder since mid-2007. He had taken analgesics and Nurofen daily since the accident. He purchased analgesics for $15 and a packet of Nurofen every week and a half for $10 or $11. Mr Watson considered Mr Wilson would require conservative treatment for his cervical spine; exercises, strengthening and swimming. He would not require any surgical treatment on the cervical spine or any pain management injections or blocks.
Conclusion as to Mr Wilson's past medical treatment expenses and travel expenses.
Mr Wilson's counsel conceded Mr Wilson's treatment costs which have been mainly for medications are very modest. I accept Mr Wilson had been required to travel to medical appointments. In the circumstances Mr Wilson was entitled to a global award of $500 for past medical treatment expenses and travel expenses.
Conclusion as to Mr Wilson's future medical treatment expenses.
Mr Wilson's counsel conceded Mr Wilson was unlikely to undergo further surgery and so there was no need to make any allowance for it. Further, a nominal amount should be awarded for the need for analgesics and Nurofen. In the circumstances Mr Wilson was entitled to a global award of $2,000 for his future needs for pain relief medications and the occasional attendance upon his medical practitioner.
General damages
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provided limits to the amounts that can be awarded for non-pecuniary loss. The present limit was $327,000. Pursuant to s 3C(1) a court may award general damages for non‑pecuniary loss such as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. A court must undertake an assessment based upon the right proportion between a most extreme case and the case being assessed.
In closing submissions Ms Montemaggiori's counsel submitted Mr Wilson's damages for non-pecuniary loss would place him in the region of 12 per cent to 14 per cent of a most extreme case because he had undergone only one substantive surgical procedure, he had otherwise pursued a relatively conservative treatment regime, he had not sought medical advice for treatment purposes for at least two years and the covert surveillance footage showed he was capable of undertaking his normal daily activities without obvious restriction or pain.
As I previously stated, the evidence established that as a result of the accident Mr Wilson suffered a relatively severe fracture to his left clavicle which required two surgical procedures under general anaesthetic and soft tissue strain injuries to his cervical spine. He had some restriction of movement in his left shoulder. He continued to feel tender across the collarbone. He could bear only a certain amount of weight before he experienced pain. He continued to suffer related headaches and disturbed sleep. There had also been some limited impact on his intimacy with his wife, ability to do household chores and sporting recreation.
I award damages for non-pecuniary loss pursuant to s 3C(2) – that is, a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount to be awarded. I assessed the proportion at 17 per cent which equated to $55,590. Section 3C(6) provided that if the amount of non‑pecuniary loss was assessed to be more than Amount C but less than the sum of Amounts B and C, the amount of damages to be awarded was the excess of that amount so assessed over. The prescribed amount for Amount B was $16,500 and the prescribed amount for Amount C was $49,500. Thus the amount of non-pecuniary loss was calculated at $45,180 ($55,590 less $16,500 less [$55,590 less $49,500]).
Damages assessment
Past loss of earning capacity as a tree climber $ 75,605.68
Interest on past loss of earning capacity as a tree climber $ 2,268.17
Past economic loss from extra taxation paid
on sale of Embleton property $ 14,930.50
Interest on past economic loss from extra taxation
on sale of Embleton property $ 447.92
Future loss of earning capacity $274,975.00
Past medical treatment expenses and travel expenses $ 500.00
Future medical treatment expenses $ 2,000.00
Non-pecuniary loss $ 45,180.00
Total $415,907.27
Less 25 per cent for contributory negligence
I would therefore award damages in the sum of $311,930.45
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