John Small v Tracey Wisemann [1991] ACTSC 24 (19 March 1991)

SUPREME COURT OF THE ACT

JOHN SMALL v. TRACEY WISEMANN
S.C. No. 1154 of 1988
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Damages - Personal Injury - Assessment - Series of Accidents - Pre-existing disabilities - Subsequent Accidents - Neck and Wrist Injuries - Loss of Business - No Issue of Principle

HEARING

CANBERRA
19:3:1991

Counsel for the Plaintiff: Mr B.M. Toomey, QC and Mr G. Lunney

Solicitors for the Plaintiff: Messrs Barker and Barker

Counsel for the Defendant: Mr Carr

Solicitors for the Defendant: Messrs Crossin Power and Haslem

ORDER

Judgment be entered for the plaintiff in the sum of $73,488.00.

DECISION

This is the assessment of damages for personal injuries suffered by the plaintiff in a motor car accident on 19 February 1988.

2. The unfortunate plaintiff has been involved in a series of accidents, and when the hearing began there were four actions listed to be heard concurrently, of which this is one. The other three have since been settled on terms which are not here relevant, although it will be necessary to make a judgment about the extent to which his damage flows from the accident the subject of this action, as distinct from the accidents the subject of the other actions.

3. The plaintiff was born in Western Australia in 1938. He had left school at the age of thirteen, but after a number of years in a variety of occupations he matriculated at technical college. After some experience as a nursing aide he began a course of theological studies with a view to becoming a Minister of the Anglican religion, in which he was ordained in 1968. He did not continue in the ministry, it seems because his views and those of his bishop did not coincide about the sort of work that he was to do.

4. After some time as a public servant he undertook training as a chiropractor, which he began to practise full time in 1973, in Canberra.

5. He practised in Canberra until 1977, then in Inverell, later at Miranda and Guildford.

6. In 1979, while in practice at Miranda and Guildford, he had a motor cycle accident when a truck clipped him while turning a corner. He fell, and his motor cycle fell onto his leg. His left wrist was strained, his left knee was bruised, and his lumbar spine was strained. He was significantly affected by those injuries for about a month, though he did find it necessary to make some adjustment to his chiropractic technique, because of intermittent soreness in his left wrist. He was however soon able to resume full time practice.

7. In 1981 he returned to Canberra. During 1981 and 1982 part of his practice was in Guildford and part in Canberra. In 1983 he undertook a course in acupuncture, and then concentrated on building up his Canberra practice. In January 1986 he was in good health, and his practice was becoming quite lucrative.

8. On 13 January 1986 he was riding his motor cycle when a car collided with him. He had a closed fracture of the right clavicle, abrasions to one knee and shin, and marked soft tissue injuries to the neck, right shoulder and lower back. He was unconscious for some hours. X-ray films showed degenerative changes in the cervical and lumbar spine.

9. In July 1987 he had not recovered from those injuries, his main problem being pain and stiffness in the cervical spine, compounded by an injury to the acromio clavicular joint. He was upset and depressed about his continuing failure to get better, and his inability to carry out fully his caring profession. Dr Keiller hoped that there might be improvement over the next year, though slow and intermittent. He proposed at that time to delay a firmer prognosis for about a year.

10. However, on 3 August 1987 he was involved in another accident. He was driving a van, when another vehicle drove into his path at an intersection. He was thrown about violently in the collision, and his existing injuries were exacerbated. There was a fresh injury to his right wrist, which was painful and swollen, there was an increase in his headaches, and his neck injuries were exacerbated. He had soreness in his arms and there was bruising at his abdomen, chest and both knees.

11. As the result of the combined effects of those two last accidents the plaintiff had, by late 1987, become reconciled to the fact that he would not be able to continue in practice as a chiropractor.

12. He began to look for some other way to make a living. Early in 1988 he decided to buy a business which manufactured waterbeds from prefabricated materials for sale to a retailer. His involvement was to be managerial and supervisory. The physical work was to be done by employed labour.

13. On 19 February 1988 he signed a contract to purchase the business, for which he paid $35,000.00. That evening, as he was driving home in a Honda Civic Sedan, he stopped at an intersection. The lights turned to green. The car ahead of him did not move. The car behind him did. As it hit the rear of the car in which he was sitting, the plaintiff's head was turned to the left. The impact forced the plaintiff's car forward about two metres before the application of the brake brought it to a stop. As rear end collisions go it was not a particularly violent collision, but immediately upon the impact the plaintiff felt a very sharp pain in the neck, down the left arm and in the left wrist.

14. He drove home after about twenty minutes. He reported the accident to the police the next day. He did not seek immediate medical assistance.

15. On about 24 February he consulted his general practitioner, Dr Elizabeth Harris.

16. The pain and discomfort prevented him from going to work for about three weeks. Then he attended each day but was not very effective. Although he received some assistance from the vendor, he was not able to manage the business effectively and it became unprofitable. He made some efforts to keep the business alive in order to resell it, but it effectively closed down, so far as his interest in it was concerned, in July 1988, when the vendor took possession of the equipment under a bill of sale.

17. His efforts to do some of the physical work while trying to save the business, and the pain that those efforts caused, brought home to him his limitations for physical effort. The loss of the business, and of the opportunity he had hoped it would afford him for useful employment, upset him. He became more depressed. His general practitioner referred him to Dr Lubbe, a psychiatrist, in August 1988. She did not think he was suffering from a depressive syndrome, and he declined to use anti depressant medication, but he continued to see Dr Lubbe regularly for supportive psychotherapy until some time during 1990. He then began to receive counselling from a clinical psychologist, Adrienne Huber.

18. His history of accidents had not finished, however.

19. In September 1988 a box of washers fell on his head in a hardware shop, knocking him out. The incident exacerbated his neck symptoms for some weeks.

20. In June 1989 he was involved in a motor vehicle accident in which he again hurt his neck and left wrist. He was very shaken by the accident, but the physical effects faded after about a month. He received compensation for the injuries.

21. Then in March 1990 a car collided with the rear of the van that he was driving while he was stopped at traffic lights. There was a marked increase in his pain in the neck, spine and arms, and headaches.

22. It is obvious that it is impossible to separate out with any degree of accuracy the effects of the 1988 accident from those of the other accidents. The plaintiff's own assessment attributes his present physical disabilities 75 percent to the 1986 accident, 10 percent to the 1987 accident, 5 percent to the 1988 accident and 10 percent to the 1990 accident.

23. Of course that assessment does not have any mathematical effect upon his damages, but it is an estimate which is roughly consistent with the view I take of the medical evidence.

24. Dr Newcombe had seen him shortly before the relevant accident, on 25 January 1988. He saw him again on 14 June 1988.

25. In 1986 x-rays had demonstrated intervertebral disc degeneration at C5/6, with osteophyte formation involving the intervertebral foramina and narrowing of the disc space. The previous accidents had by January 1988 left him with neck pain, headaches, pain in the left forearm and wrist, right elbow and wrist, pain over the sternum and occasional low back pain. He was already depressed, with insomnia and loss of energy as a consequence. Lateral flexion of the neck was restricted to 30 degrees on each side, and there was sensory loss on both sides in the C6 nerve root distribution.

26. On examination after the relevant accident in June 1988, Dr Newcombe noted that he held his neck very stiffly. Only a few degrees of movement actively could be obtained, and no movement passively because of voluntary muscle contraction. The sensory loss within the C6 nerve root distribution had become more extensive in non anatomical distribution. By September there was more neck movement.

27. Dr Newcombe did not see the plaintiff again until March 1990, by which time the other later accidents had happened, but he agreed in cross-examination that he would have expected the physical results of the 1988 accident to have lasted about 8 or 9 months.

28. Dr Cassar examined him for one of the other defendants on 3 June 1988, but his attention was really being directed to the effects of the 1987 accident, and I do not find his report very useful for the purposes of this action.

29. Dr Cairns saw him in July 1988, also for the defendant in respect of the 1987 accident. He believed most of his disabilities had been present before that accident and did not then pursue details of the 1988 incident. When he reviewed him in March 1990 he thought the effects of the 1988 accident were almost certainly of a transient nature, likely to have produced aggravation for some 3 to 4 months.

30. Professor Jones, a rehabilitation specialist, saw him on 30 November 1988, also for the defendant in respect of the 1987 accident. He thought that the pre-existing degenerative condition was the predominant cause of the continuing symptoms, and, in response to a question about the relevant accident, commented that both the 1987 and the 1988 accidents would not significantly have altered the situation which had existed before both those incidents.

31. Dr Keiller had seen the plaintiff in July 1987. He saw him again on 10 March 1989. He thought it probable that the 1988 incident caused at least some temporary aggravation, although it was unlikely that it would have caused severe further injury. His continuing complaints stemmed, in his view, from the original 1986 incident.

32. All the doctors comment on the emotional content of the plaintiff's disabilities. Dr Lubbe did not feel able to comment on the individual accidents. She saw him first after the 1988 accident, but from a psychological point of view his condition was unchanged after the 1989 accident.

33. But both Dr Keiller and Dr Newcombe had noted complaints of impaired memory and concentration, depression, anxiety, insomnia and loss of energy before the 1988 accident.

34. The plaintiff himself frankly expressed the view that the breakdown in his marriage is also a big factor in his present loss of confidence and need for continuing psychological counselling.

35. I accept the plaintiff as a witness whose attitude to accuracy in giving evidence is, literally, meticulous. The difficulties in assessment in this case are caused by the number and type of incidents, not by any need to discount what he says.

36. I find that the subject accident did cause a significant exacerbation of his pre-existing physical and emotional problems. The physical effects were almost certainly spent by the end of 1988. The emotional effects probably lasted longer. I think that the failure of the business which followed this accident would also have affected his confidence. But I think also that it would be wrong to require this defendant to compensate him for the emotional consequences beyond the happening of the March 1990 accident. If anything, that assessment may be generous to him.

37. For his pain and suffering and general damages I award the sum of $20,000.00. I award the sum of $2,448.00 interest on that component, at the rate of 4%.

38. The out-of-pocket expenses claimed relate only to fees charged by Dr Lubbe, amounting to $1,276.00, and Ms Huber, amounting to $1,423.00. A claim is also made for future consultations, but in the light of my findings I do not propose to allow anything for the future as resulting from the accident. Consultations with Ms Huber did not begin until August 1990, and I do not think they are attributable to this accident.

39. There are no details in evidence about the dates of consultations with Dr Lubbe. I assume that they were as detailed in the Statement of Particulars. The first was on 5 August 1988, the last on 31 January 1990. Some part also would be fairly attributable to the previous accidents. I allow the sum of $1,000.00 for that item.

40. I accept the plaintiff's claim that the accident effectively destroyed the plaintiff's ability to carry on the business which he had that day purchased. He does not claim that his ability to carry on that sort of business was permanently destroyed. His income earning capacity was a severely restricted one at the time of the accident by reason of his degenerative disease and the effects of the previous accidents upon it.

41. Such business records as were kept are in evidence, but the circumstances in which the business was being operated and the short period of time for which it lasted make it impossible to arrive at any sound estimate of the plaintiff's income earning capacity in carrying it on.

42. I think it fair to take into account the comments made by the defendant's counsel, that many small businesses fail in any event for all sorts of reasons and that this plaintiff was peculiarly at risk of being disabled by some other incident, such as actually happened in March 1990.

43. There is no evidence of value of the business itself, other than the price of $35,000.00 that the plaintiff paid for it, presumably in a transaction at arms length. I am not told how much was attributed to good will, how much to plant and equipment, stock or work in progress. When the business failed the vendor took possession of the equipment under a bill of sale. I do not know what debt was secured by that bill, or how much was outstanding.

44. What precisely has the plaintiff lost? The income that he might have earned from the business over the next two years would have been the combined results of his efforts and the return on his investment. It is impossible to place precise figures on those elements, or even on the total profit. By a rough extrapolation of trends inferred from such records as exist counsel arrived at a gross profit of about $22,300.00 a year. But not all of that would be the result of the plaintiff's physical or managerial effort.

45. Doing the best I can with the material available, I would award the sum of $40,000.00 for loss of the business and income earning capacity over the period attributable to the subject accident.

46. In lieu of interest on that item I allow a lump sum of $10,000.00.

47. The total award is therefore made up as follows:
General Damages $20,000.00

Interest on general damages $ 2,448.00
out-of-pocket expenses $ 1,000.00
Economic loss $40,000.00
Interest on economic loss $10,000.00
Total $73,448.00

I direct the entry of judgment for the plaintiff in the sum of $73,448.00.