Ross Mcarthur Ferrington v Lawrence Leong [1986] ACTSC 60 (4 July 1986)

SUPREME COURT OF THE ACT

ROSS McARTHUR FERRINGTON v. LAWRENCE LEONG
S.C. No. 1077 of 1984
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Damages - personal injuries - soft tissue injury to neck and shoulder - plaintiff susceptible to anxiety and depression contributed to by pre-existing alcoholism and marital troubles - persisting symptoms of anxiety when driving expensive cars - no question of principle.

HEARING

CANBERRA
4:7:1986

ORDER

There be judgment for the plaintiff in the sum of $18,530.

The defendant pay the plaintiff's costs.

DECISION

This was an action for damages for personal injuries. Liability was admitted during the course of the hearing. The plaintiff was injured on Saturday, 22 September 1984 at about 11.45 a.m. when he was driving his Jaguar coupe motor vehicle in Bunda Street, Civic in a northerly direction. After the plaintiff had entered the intersection with Akuna Street the defendant's vehicle drove into the plaintiff's vehicle from the plaintiff's left causing extensive damage to the plaintiff's vehicle. I conclude that the defendant was driving at a fast rate of speed. The plaintiff's vehicle was spun around and knocked a parking metre post out of the ground.

2. The plaintiff remained in the vicinity of the accident for about an hour and a half. He was eventually driven from the scene by a friend to the Royal Canberra Hospital where he remained for about a further hour and a half. He was then driven home. I gather that at that stage he lived alone. He was sore over the next day or two and on Monday, 24 September 1984 consulted his local practitioner, Dr Roantree. At that stage he was complaining of pain in the region of the neck radiating into the right arm and shoulder as well as a general feeling of nervousness, ringing in the ears, diarrhoea and what he described in evidence as "fits of sweats". He left the doctor to attend to his business activities, but returned later in the afternoon complaining of increased pain and anxiety. The diagnosis as to injury was of a cervical sprain. Dr Roantree prescribed anti-inflammatory and tranquillizing drugs. The plaintiff was then and remains in business as a service station proprietor in the Civic area. He does not allege that his injuries affected the prosperity of his business or reduced his income earning capacity. However, he said and I accept that over the two or three months following the injury he had some difficulty in lifting and handling heavy objects. He was able to obtain assistance from his employees in such matters as, for instance, carrying the change to and from the bank. He was still complaining of pain in the right shoulder after driving when he was reviewed by Dr Roantree on 26 October 1984 and indeed when he spoke to Mr. Strickland, a hypnotherapist, on 3 November 1984. I am satisfied that by the end of November 1984 the plaintiff was free from any ongoing pain or disability caused by injury to the neck or shoulder. The other symptoms have continued, but diminishing over time, depending on circumstances.

3. The real substance of the plaintiff's claim is the psychological reaction to his injury. He was, it was clear, a person who was predisposed to extreme reaction of a depressive nature. He was a widower at the time of his injury. His wife had been ill for many years before her death in October 1982. The plaintiff had, over the years before her death and more so in the immediate aftermath of her death, become heavily addicted to alcohol. In addition, consequent upon his wife's death, the plaintiff developed a nervous or depressive reaction which continued until July 1983. From the time of the death until then he had not been able to attend to his business activities. A friend, Mr. Patrick Allen, accompanied him on a short trip overseas and upon their return the plaintiff was sufficiently relaxed to be able to return to work. He continued to be addicted to alcohol, although less than previously.

4. The plaintiff had for many years been an avid collector of what were described as "exotic" cars. These vehicles were invariably expensive, and at least in some cases also extremely fast. The plaintiff, in fact, drove in drag races. He was not very explicit as to whether his activities as a racing car driver continued up until the time of the accident. I am not satisfied that he was able to indulge that interest during the time of the depression that followed his wife's death and further I am not satisfied that his continuing addiction to alcohol did not at least limit the extent to which he was able to take part in racing car driving. At the time of the accident the plaintiff owned a 1967 model Mustang vehicle which he intended to restore so that it could be used for drag racing. He still intends to restore the vehicle for that purpose but he has expressed doubts both in his evidence and to his friend, Mr. Allen, that he is not sure whether he has the confidence now to participate as a racing car driver and he may have to ask someone else to drive for him. The plaintiff's passion for motor vehicles has not diminished as a result of the accident, however, for he has in the mean time purchased a 1973 Mustang and a 1985 model Ferrari. It is the plaintiff's feeling for these expensive and somewhat rare vehicles that forms the major component in his claim for damages. He says and I accept that he cannot drive one of these vehicles out on the public street without developing a feeling of anxiety which sometimes results in diarrhoea. For that reason he drives the Ferrari very rarely. If he takes it to Sydney, for instance, he keeps it locked up in the motel or wherever he is staying until it is time to drive back to Canberra. The extent of the fear and anxiety, however, depends upon the value of the vehicle concerned. For instance, the plaintiff has no difficulties at all about driving around in a small Datsun 120Y vehicle or in a van which he uses for transporting goods. On a recent trip to Queensland he drove a Ford Fairlane without any problem until a vehicle cut in on him at one stage, causing him to sweat and eventually bringing on his diarrhoea. I would observe that within the range of the motor vehicles with which the plaintiff is familiar a Ford Fairlane could probably be described as a vehicle of moderate value, and the symptoms associated with driving that vehicle appear to be of moderate severity.

5. Dr Andrea, a consultant physician, who saw the plaintiff on behalf of the defendant, expressed the view that the plaintiff would be wise to get rid of his Ferrari. However, I think that is very much a matter for the plaintiff and it resounds in damages either way. If he is to be regarded as required to minimise his damage by selling the vehicle then he would be deprived of the enjoyment that he gets from simply washing and polishing and sitting in it. If he wishes to continue to enjoy limited use of the vehicle then he has to put up with the fear and anxiety which still persist when he drives it in the street. However I am convinced that the level of anxiety associated with the use of the vehicles which can be seen to result from the accident is now minimal and is likely to disappear altogether. Even without the accident the plaintiff was likely to have felt concern at least and on occasions a degree of anxiety about using his expensive vehicles on the public roads. I accept that to date the plaintiff has been anxious about resuming racing car driving, but again I feel that the degree to which the accident contributed to that anxiety is by now minimal and I have to take into account that but for the accident there was always a possibility that something else might have happened to the plaintiff to at least contribute to that anxiety.

6. I also have to take into account the fact that amongst the general ups and downs in life that the plaintiff has had to face was an attempt at an unsuccessful remarriage. Dr Truman, a consultant psychiatrist, to whom the plaintiff was referred by his solicitors, noted in March 1985 that the plaintiff was exhibiting anxiety about his relationship with the lady whom the doctor understood to be the plaintiff's fiancee. However, according to the evidence of the plaintiff, and anxiety notwithstanding, they were married on 13 April 1985. The parties separated some twelve months later. The plaintiff said in his evidence that he formed the conclusion within three months of the marriage that it would not last and seemed to blame his wife's lack of intelligence. He made no mention whether his addiction to alcohol or passion for motor vehicles contributed to the breakdown. Dr Truman noted that the plaintiff was considering obtaining hypnotherapy and this course was, as I understand it, encouraged by the doctor. In fact the plaintiff had psychotherapy twice a week for four months and once a week for six months thereafter. I am convinced on the evidence that the prime cause of the plaintiff seeking hypnotherapy was to treat his alcohol problem, but at the same time he sought assistance as to his anxiety in relation to his motor cars. It may well have been that the plaintiff would not have sought hypnotherapy if the anxiety problem had not been added to that of the alcoholism, but I do not think that this entitles the plaintiff to cover the whole of the expenses for hypnotherapy. The plaintiff said that the treatment for the anxiety problem was differentiated from that relating to the alcohol problem. In the absence of anything more definite, I think it appropriate to award the plaintiff half of the cost of the hypnotherapy. That half is $870. Other out-of-pocket expenses are agreed at $190. There is no claim for loss of earning capacity.

7. Dr Truman reported that the plaintiff presented as an articulate and very jovial individual. This was not the picture he presented in the witness box. However, I accept the assessment of Dr Truman that the motor vehicle accident of 22 September 1984 produced a phobic anxiety reaction in the plaintiff manifesting as symptoms of anxiety whilst driving high performance cars. I take into account that the plaintiff's general physical and psychological condition has also been affected by his tendency towards alcoholism and the strains of a short-lived marriage. The defendant is not responsible, in my view, for any aggravation caused by these two latter factors. Further, the anxiety precipitated by the accident did not, in my view, on the evidence contribute to the alcoholism or the marital difficulties. The plaintiff is to be compensated for his physical and mental pain and suffering attributable to his injury as already described and for being deprived to a considerable extent of what was formerly a source of great satisfaction to him, namely the ability to drive and race expensive cars. Nevertheless, for the reasons I have already given, the extent to which he was able to indulge that interest was not unqualified, he is still able to indulge his interests to a considerable extent and I am convinced that by now the plaintiff is or very soon will be virtually back in the mental and physical condition in which he would have been even if he had not been injured in the car accident. Mr. Allen gave some evidence that the plaintiff is fearful of driving in a more general way and that he is fearful of driving at night. As the plaintiff himself made no such complaints, I do not take them to be of great significance in the award for general damages. For general damages I award $16,000, as to which I apportion $12,000 for the purpose of interest. Interest will be assessed at 14% per annum and the result reduced by one half, calculated at $1,470. That amount will be added to the damages of $17,060 and the plaintiff will have judgment for $18,530. The defendant is to pay the plaintiff's costs.