Frederick Hopkinson v Donald Mckay [1990] ACTSC 30 (10 August 1990)

SUPREME COURT OF THE ACT

FREDERICK HOPKINSON v. DONALD McKAY
S.C. No. 518 of 1986
Damages

COURT

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

CATCHWORDS

Damages - action for personal injuries - no new statement of principle.

HEARING

CANBERRA
10:8:1990

Counsel for the plaintiff : Mr. T.J. Higgins, QC with

Mr. R. Crowe

Solicitor for the plaintiff : Pamela Coward and Associates

Counsel for the defendant : Mr. L.M. Morris, QC with
Mr. J. Hartigan

Solicitor for the defendant : Abbott Tout Russell Kennedy

ORDER

There be judgment for the plaintiff in the sum of $349,967.00.

DECISION

This is an action for damages for personal injuries arising out of a motor vehicle collision which occurred at about 2 p.m. on 20 October 1984. Liability was admitted at the commencement of the hearing.

2. The action occurred when the plaintiff was driving a motor vehicle north in Yanda Street, Waramanga and was executing a left-hand turn into Algan Street, which forms a T-intersection. The defendant was driving in an easterly direction along Algan Street and was executing a right-hand turn into Yanda Street. The defendant cut across the path of the plaintiff's vehicle and there was a head-on collision with damage to the right-hand front section of both vehicles. The collision appears to have been of moderate severity. The defendant drove from the scene, but the plaintiff's car could not be driven because of the damage. Later that afternoon the plaintiff started to notice head stiffness and soreness in the neck and headaches. He also felt what he described as "a little tightness just above the hips and tightness down the backs of the legs". He said that these were "minor in relation to the headache" which was "really severe". He continued at work the next week with difficulty. He saw his local practitioner, Dr Gibson, on 23 October 1984. His complaints then were of severe pain in the neck radiating more to the right than the left shoulder, with painful limitation of all neck movements. He ceased work on the following Monday, nine days after the accident. He was at that stage a computer systems operator in the Department of Veterans' Affairs, classification CSO 2. Apart from some part-time work for a few hours from time to time, he did not resume work with the Department and on 23 September 1985 he was compulsorily retired from the Public Service because of his incapacity. He has not resumed employment at all, but in 1986 began to do some part-time work as a computer programming consultant and continues to do that sort of work from his home.

3. The case presents a number of difficulties with regard to an appropriate award of damages. The plaintiff's credibility was under attack, and it was suggested that he has greatly exaggerated his disabilities and symptoms. The extent to which he is unfit for the sort of work he was carrying out at the time of his injury and the sort of work he would have carried out but for the injury is difficult to determine, quite apart from credit. It is difficult to assess the monetary value of his earning capacity but for injury, and it is difficult to assess his earning capacity since the injury and into the future. Nevertheless an attempt has to be made to deal with all these questions.

4. The plaintiff presents as a somewhat complex individual. He was born on 21 June 1948. He married in 1970 and has a 13 year old daughter. He left school at the age of 15. He followed various relatively unskilled jobs of a clerical nature. He was working as a clerical assistant with the Department of Veterans Affairs when he matriculated in 1977. The following year he commenced a Bachelor of Arts degree in Computer Studies at the Canberra College of Advanced Education and he qualified as a computer programmer in the public service. He completed most of the computer units necessary for the degree by 1982 when he temporarily suspended his studies in order to allow his wife to finish a degree for which she was studying at that stage. He was extremely active in sporting and physical activities such as skiing, karate, sailing and diving. In 1983 and 1984 he had been attempting to get qualifications as a diving instructor and completed most of the course prior to his accident. He received some remuneration as a level 1 instructor, but the cost of training exceeded what he was paid. He had reached the brown belt level in karate and off and on since 1976 helped to run a karate school. At one stage he was attending karate classes three nights a week. At the time of his injury he owned an ocean-going boat moored at Pittwater in New South Wales and either then or previously owned two racing dinghies. He had plans to take extended leave and cruise around the world.

5. The plaintiff had been involved in several accidents prior to the accident which is the subject of this action. The first and apparently most serious was a whiplash type of injury in June 1972. It is not clear how much time was lost from work. The plaintiff says that it took him a year and a half to recover. Dr Robson performed a disc excision and fusion at the C5/6 disc level, and according to Dr Gibson, the plaintiff's local doctor, the plaintiff was "much better" after some months. It is significant, however, that the plaintiff said in his evidence he was frustrated because the surgery was not the miraculous cure he had hoped for. In March 1974 he was admitted to Canberra Hospital for depression. It appears, however, that it was soon after this and after discussion with his wife that the plaintiff became motivated towards improving his work performance and general fitness. He stated in his evidence that he was very physically active when he completed his matriculation in 1977. He settled his claim in respect of the 1972 accident for $12,000 including costs and expenses.

6. On 2 June 1978 the plaintiff fell from his motor cycle on his way to a computer tutorial but says that he recovered completely after a week or ten days. Similarly, in November 1983 he rolled a car on a dirt road and suffered sharp pain in the neck and headaches, which he says cleared up in one week. There is no reason to reject his evidence that he made physical recovery from these earlier injuries.

7. Following the subject injury on 20 October 1984 the plaintiff was seen on several occasions at intervals of a week or more by Dr Gibson. His condition did not improve despite physiotherapy and chiropractic treatment. Indeed his condition appeared to worsen, with pain radiating down both arms and pain in the neck extending into the occipital region. He was referred to Dr Robson on 10 December 1984. Dr Robson noted complaints of ache in the low back and mid-thoracic region, which were "less of a problem" and "much harder to pin down" than the neck. Dr Robson continued that the plaintiff had probably "stirred up one of the discs in his neck".

8. From then until the middle of June 1985, according to the plaintiff's evidence, the level of pain fluctuated, depending upon his activity. He continued to do domestic work, participated in a meals-on-wheels programme once a month and continued sailing with a crew on his ocean-going boat. The plaintiff went back to Dr Robson some time before the end of May 1985. X-rays taken at that time indicated some abnormality at the C4/5 level. Dr Robson was of the view that an operation would reduce the amount of pain. Dr Robson also recommended discograms, but only if the plaintiff agreed before hand to whatever surgery might be indicated by the discograms. In a report of 24 October 1988, after a further review of the plaintiff on that day, Dr Robson expressed another view that the 1984 x-rays showed a serious malalignment at L5/S1.

9. The plaintiff's lower back symptoms, however, did not, according to his evidence, greatly trouble him until an incident in June 1985 when he was pulling up the anchor on his boat. He said that on that occasion his back "basically locked" that it became quite sore and the pain radiated down the back into his legs. Prior to then his back had presented no more than a dull ache increasing to pain and restricting movement about once a month. In September 1985 the plaintiff further aggravated his back condition when using a blockbuster for splitting firewood.

10. The plaintiff was retired from the Public Service on 23 September 1985. Four days later he saw Dr Knox, a psychiatrist, for frustration and depression. He was prescribed anti-depressant drugs and instructed in relaxation techniques.

11. In October 1985 the plaintiff commenced a back care management programme under the supervision of Dr Corry.

12. The next twelve months to two years appear to have been the most difficult for the plaintiff. He continued on the powerful sedative Rohyphnol and analgesics, although he endeavoured to minimise his use of the drugs in order to avoid the side effects. He continued with regular physiotherapy and chiropractic treatment. According to his evidence and the reports of Dr Gibson he continued to do minor domestic chores, go sailing and drive a car, all of which, however, caused severe headaches, neck and arm pain. On 12 September 1985 Dr Gibson reported that lumbar spondylitis flared up "causing severe pain and limitation of movement". The symptoms in the back rather than the neck became more disabling.

13. On 25 February 1986 Dr Corry reported that the plaintiff had "gone into work on a part-time basis". It is not clear what this work was, although the plaintiff did do some part-time work in the AMP Society for three hours a day over a period of five days in the fortnight ending 15 July 1986 (Exhibit B). This appears to be work of a computer programming nature.

14. On 11 September 1986 the plaintiff commenced treatment at the pain clinic at Woden Valley run by Dr Lithgow. Dr Lithgow administered cortizone injections on occasions as well as instructing in "pain coping strategies" in conjunction with a psychologist, Ms. Patricia Williams. That treatment continued through until the end of 1988. Dr Lithgow noted that by 13 July 1987 the plaintiff was working a few hours part-time per week.

15. The plaintiff had in fact purchased a computer towards the end of 1986 which he installed in a back room of his house. The work at the Department of Veterans' Affairs had involved mainframe computers and it was necessary for him to learn new computer languages for the purposes of operating the micro computer at his home. He accomplished the task.

16. However, there was no substantial improvement in the plaintiff's condition. It is clear both from his own evidence and the medical reports that he was depressed, under medication and chiropractic treatment. On 13 June 1987 Dr Gibson reported muscle spasm in the thoracic spine sometimes causing a restriction of breathing with constant low back pain in the buttocks with occasional restricted flexion and inability to dress. In July-August 1988 he was in hospital for several days with pain caused by spasm in the lower back and anti-depressant medication was prescribed.

17. The plaintiff was seen by Dr Chandran, a neurosurgeon, at the end of August 1988. X-rays and scans done at that time revealed a bulge at C4/5, a normal disc at C5/6, a bulging disc at C6/7 and a protrusion at L5/S1. The plaintiff did not turn up for discograms that had been arranged, but Dr Chandran thought that subject to what the discograms might confirm, the plaintiff was likely to require fusion "at these two levels", by which he presumably meant C6/7 and L5/S1, bearing in mind that Dr Robson had performed a fusion at C5/6 in 1973. It was at about the same time, on 14 September 1988 that Dr Danta, a neurologist, who had seen the plaintiff on several occasions since 1985, expressed the view that there was little change in the plaintiff's condition except that he seemed to be getting worse with "no clear cut sciatica". Dr Danta thought that the symptoms were directly related to both the 1972 and 1984 injuries, the effects being accumulative. Dr Robson's review of 24 October 1988 brought him to the conclusion that the plaintiff's symptoms were consistent with disc degeneration, with pain in the low back assuming greater severity over the previous four years. These were, according to Dr Robson, of a "total mechanical nature" which he considered could be remedied by operation. Other doctors, however, took a different view. For instance, Dr Collins who saw the plaintiff once on 7 September 1987 when there was no mention of low back pain at all, thought the plaintiff's problems were derived from tension and muscle spasm in the soft tissue, although there was evidence of disc protrusion at C6/7 consistent with compression of cervical nerve. Dr Corry noted on 31 October 1988 that the plaintiff was contemplating surgery, although by 30 May 1989 the plaintiff had changed his mind. On that date Dr Corry noted that the plaintiff was the best he had been for a long time, with constant base pain not so severe. The plaintiff was still fearful of aggravating his condition and complained of occasional accute pain after exertion causing the need to rest for a few days thereafter.

18. I conclude on the balance of probabilities that the injury of 20 October 1984 aggravated an already degenerative spine giving rise to symptoms in the cervical and lumbar area and rendering the spine more vulnerable to further injury through wear-and-tear processes and incidents such as those of June 1985 and September 1985. Those incidents were within the range of foreseeable consequences of the subject injury and, in my view, did not break the chain of causation.

19. The plaintiff has never been completely unable to carry out work on a computer or to carry out a certain range of physical activities. In the many accounts given to the doctors, he has generally said that he has continued to engage in part-time work. In his evidence he said that between the time of injury and the time of his retirement he went back to work on several occasions to attempt part-time work, but could not sit and look at the computer terminal or written material for long enough to be of any benefit. He said that he could only work for one and a half hours at a time at his keyboard following the accident, and would then have to rest for several hours. He said that he purchased a computer in December 1986 with a view to part-time work on a consultancy contract basis and he has received certain amounts for that sort of work since then. On the other hand, he has claimed in his tax returns that the outgoings and expenses of setting himself up in business and continuing to conduct the business have exceeded his income. According to a witness, Mr. Allan Bradbury, another computer consultant, the plaintiff has two computers in his house, one in a back room and one in his bedroom. What happened was that in March 1989 the plaintiff's father built a work station for him which is something like a hospital trolley. The visual display unit is placed on the trolley. The plaintiff lies prone in bed with his head fixed in position with pillows and operates the computer keyboard which rests on his stomach. In that way the plaintiff, according to his own evidence, has been able to increase his workspan from one and a half hours at a time to up to four hours without discomfort. However, he often becomes engrossed in his work and continues longer than he should and finds he has to recuperate thereafter because of increased pain and headaches. It is not necessarily in the plaintiff's financial interests to earn any actual income since any profits he receives reduce his superannuation payments. He has received some cash payments for some of his computer consultancy work which have not been declared for tax purposes and which have been used for ordinary household expenses.

20. According to Mr. Bradbury, there is an agreement between Mr. Bradbury's company, Comproft International Pty. Ltd., and Centa, a partnership between the plaintiff and his wife, whereby the partnership receives fifty percent of profits derived from the development of a software programme called SKIPA, which is concerned with skills management systems. The plaintiff was primarily responsible for the development of SKIPA. One copy of this system has been sold to the Australian Bureau of Statistics, other departmental organizations and a bank are interested in acquiring it. It has been displayed at a computer exhibition where the plaintiff worked on a display stand for a short time on one day. The system is also advertised in a training journal of which his wife is the editor. The plaintiff received $4,000 out of the total $8,000 sales price from the Australian Bureau of Statistics, but he said that he had to pay another person $1,200 to finish off his part of the work. Mr. Bradbury anticipated a net profit of $10,000 over the next twelve months from further sales of SKIPA. Mr. Bradbury anticipated that the plaintiff worked some two hundred hours developing this system and that if his work had been costed out it would have been at a rate of $50 per hour, although if the plaintiff had obtained the work through Mr. Bradbury's company (which appears to be in business partly as a broker) then some commission would be lost and the plaintiff would end up with $45 an hour.

21. The plaintiff's tax returns from 1986 to 1989 disclose the following income received from his computer work and expenses incurred.

Year Income Expenses
86/87 $570.00 $3,855.00
87/88 $2,500.00 $5,955.00
88/89 $650.00 $8,038.00

22. The income tax returns reveal that the most substantial expenses are for depreciation, presumably on his computer equipment, which in the tax year ended 30 June 1989 amounted to $4,218. In addition to that the plaintiff claims interest on a loan, motor vehicle costs, office costs, electricity, mortgage interest, telephone and other similar expenses. It is not necessary for me to draw any conclusion as to the validity of these expenses for tax purposes, but it must be observed that many of them would have been expended by the plaintiff in any event either in pursuing his computer interests as a hobby, or in his ordinary domestic life or in developing a computer consultancy which he intended to do even if he had not been injured.

23. In relation to his personal and recreational life the plaintiff presents something of a paradox. He drives himself to continue as many of his pre-injury activities as possible, even though these seem to lead to pain. Of course if he were not so motivated it is likely that he would become more depressed through inactivity. In any event he continues to do some of the chopping of the firewood which involves the use of a heavy blockbuster. He also assists in loading up the trailer, although he no longer uses the chainsaw. He gave up racing his sailing-boats, but continued to sail the ocean-going boat with a crew until it was sold in February 1987. He completed a navigation course at a TAFE college. Nevertheless he has had to abandon plans to sail around the world (plans which conflicted to some extent with his other plans to go into business as a computer consultant after completing his degree in computer studies). He still sails occasionally with his daughter in her dinghy. He sometimes helps her to rig the boat and he at least assists in getting the boat in and out of the water. He has built bookcases around the house and assisted in the building of a brick garage in early 1986. Close observation of the plaintiff when he gave evidence together with a consideration of the many medical reports and the evidence of the other witnesses, does not allow of any easy or confident conclusions. Overall, I think that the most accurate summary of the plaintiff's personality appears in the report of Ms. Patricia Williams, a psychologist, dated 20 October 1988, in which she states that:

".... prior to his accident Mr. Hopkinson has
typically dealt with much of his internal and
external pressures by high levels of physical
activity, especially vigorous sporting activities
and a high level of involvement and achievement in
his work. This is now denied to him and, as a
result, his resources for dealing with distressing
emotions are considerably reduced.
In summary, Mr. Hopkinson experiences high levels of pain
and suffering due to an interaction between the results
of his accident and predisposing personality factors."

24. Overall, I think that the plaintiff has to be accepted as basically a truthful witness who is not concerned to mislead the Court or exaggerate deliberately. On the other hand, it is quite clear that he strove at all times to give the answers which best suited his case. I am not convinced that it is likely that the plaintiff's condition will markedly deteriorate, nor that he is likely to get much better. However, the plaintiff is likely to be able to continue to use his skills in computer programming and, subject to the market, to develop his income earning capacity in that area.

25. In respect of past loss of earning capacity, a firm of chartered accountants, Messrs DellaVedova Hollands Beard and Co., prepared a draft report (Exhibit N) based on figures apparently agreed between the parties. In what they called "Scenario 1", the accountants calculated the anticipated earnings from 1 July 1984 to 3 November 1989 of a public servant at Grade CSO 2, promoted to CSO 3 on 1 January 1986 and remaining at top level of CSO 3 to the end of the period. The net salary earned by such a person in that period was $124,988.48. Scenario 2 was similar, except that it assumed that the officer was promoted to CSO 4 on 1 July 1989. The earnings on that hypothesis were $125,261.54.

26. Scenario 3 was similar to Scenario 1 except that it assumed that on 3 June 1988 the officer left the Public Service employment to undertake private consultancy work and in fact earned gross consultancy fees to the end of the period of $80,000 and incurred expenses of $11,320. This third method yielded a total income of $144,768.89. However, in my view, the last method has to be rejected to the extent that it claims any mathematical accuracy, because the assumptions upon which it was based are simply not realistic on the evidence. On the other hand, the plaintiff has to be compensated for the loss of the chance that he might have left the Public Service employment some time during the period and before the hearing in order to take up more lucrative private consultancy work. I think it fair to allow $132,000 as the likely net earnings of the plaintiff but for injury from 1 July 1984 to 3 November 1989. It should also be observed that the accountants' figures commenced on 1 July 1984 whereas the plaintiff's injury did not occur until 20 October 1984, and the parties are agreed that $5,660 has to be deducted for that reason.

27. The amounts paid to the plaintiff set out in a letter from the Department of Veterans' Affairs dated 5 October 1989 show that gross payments from the date of injury until the plaintiff's retirement on 25 September 1985 include sick pay, eight weeks payment shown to be for recreation leave and long service leave pay. In my view, the evaluation of the value of past loss of earning capacity should take into account the fact that the plaintiff received sick pay. In certain situations a plaintiff may not have to suffer the disadvantage of having sick pay taken into account to reduce the value of loss of earning capacity, where for instance the sick pay has to be repaid to the employer out of any damages. There is no evidence that that is the situation in this case. However, in relation to the eight weeks recreation leave, I see no reason why the defendant should be entitled to credit where the plaintiff might have taken such leave in any event and independent of any injury. Similarly, in relation to holiday pay and long-service leave pay which the plaintiff received after his retirement, these are clearly entitlements which the plaintiff would have received at some stage whenever it was that he retired from the Public Service. The gross amounts paid by way of sick pay were, to the best of my calculation, $7,604.25 which reduced for taxation leaves about $5,000 net. In addition there needs to be offset something to represent the plaintiff's actual limited capacity to earn income since the latter half of 1985. To use the figures on his tax returns, which disclose not income but a loss, would not accurately reflect that capacity. In this situation it is difficult to fix a figure other than intuitively after taking these factors into account. I fix the award for past loss of earning capacity at $85,000.00

28. For the future, beyond the date of hearing, I would take the current rate applicable to the CSO 4 level, namely just on $43,000 per year gross, and add to it something to compensate the plaintiff for the loss of the chance of moving out into more lucrative consultancy work, a gross figure of $45,000 per year or about $600 per week net. Against that is to be offset the plaintiff's present income earning capacity. I think that he is capable of at least fifteen hours computer work per week, but he may not be able to obtain paying work to keep him busy consistently for that length of time. He has also his expenses to be taken into consideration. Many of these I conclude are expenses that he would have incurred in any event. Bearing in mind the rate of $45 per hour which could be commanded if he obtained his work through Mr. Bradbury and doing the best I can on the figures available, I would assess the plaintiff's present earning capacity at $300 net per week, leaving a continuing loss of earning capacity into the future of $300 per week. On the 3 percent discount tables and allowing for the plaintiff's likely retirement at age 65 (using a multiplier of $880) gives a figure of $264,000.00. I would reduce this by at least 20 percent for the usual contingencies together with the real contingency that in the light of the plaintiff's deteriorating back condition he was subject to a repetition of the sorts of injuries that he had sustained over a period of time and possible incapacity through degeneration in any event, leaving an end figure for loss of future earning capacity which I would round out to $200,000.00.

29. There is a claim for loss of income earning capacity as a diving instructor. It has not been established on the probabilities that the plaintiff would ever have made any profit from this activity over and above his expenses. Nevertheless he has to be compensated for loss of a chance and a component for that aspect will be included in the award for loss of enjoyment of life.

30. For pain and suffering and loss of enjoyment of life I award $35,000.00. For the purpose of interest I apportion $20,000.00 for the past.

31. Out-of-pocket expenses to the date of hearing are agreed at $10,633.91. Of these the plaintiff has paid the sum of $4,870.88 and interest is to be awarded on that sum. It is also to be noted that the defendant has paid $1,616.43 and credit is to be given for that amount against the sum for which judgment will be given.

32. The plaintiff continues to incur expenses for chiropractic treatment and medication. He paid $840.00 for chiropractic treatment in the year prior to the hearing and $165.00 for medication. I am not convinced that the plaintiff will reasonably require chiropractic treatment to this extent for the rest of his life, but some allowance should be made for it. I note that on the 3 percent tables $10 a week for thirty years yields a figure of about $10,000. I award $7,500.00 for future chiropractic and medical expenses.

33. Interest is claimed under s.53A of the ACT Supreme Court Act 1933, and is awarded on the past component for pain and suffering and loss of enjoyment of life, calculated at the rates provided for in the practice direction, reduced by half and allowed at $9,833.00. Although it is possible that the award for past loss of earning capacity exceeds what the plaintiff has in fact received by way of superannuation, I am not able on the material before me to fix a figure upon which interest should be awarded on that component. In the exercise of discretion I decline to award interest on that aspect. The plaintiff has himself paid $4,870.88 of his out-of-pocket expenses. Interest on that component from the date of injury is $4,790.00. However, as I do not know when the plaintiff made the payments, I award, in the exercise of discretion and in lieu of interest, a sum of $2,000.00.

34. The total damages are in summary as follows:

Pain and suffering and loss of
enjoyment of life $35,000.00
Past loss of earning capacity $85,000.00
Future loss of earning capacity $200,000.00
Past out-of-pocket expenses $10,634.00
Future out-of-pocket expenses $7,500.00
Total: $338,134.00

35. Globally that appears to be an appropriate award in the circumstances. Under s.53A of the ACT Supreme Court Act 1933 $11,833.00 is added and the plaintiff is to have judgment for $349,967.00. Unless the parties wish to be heard I propose to order that the defendant pay the plaintiff's costs.