Douglas Foster v David John Jordan [1992] ACTSC 10 (31 January 1992)

SUPREME COURT OF THE ACT

DOUGLAS FOSTER v. DAVID JOHN JORDAN
S.C. No. 1574 of 1979
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash Injury - Cloward's Procedure - No Issue of Principle.

Australian Capital Territory Supreme Court Act 1933

Statute Law (Miscellaneous Amendments) Act, 1981

HEARING

CANBERRA
31:1:1992

ORDER

Judgment be entered for the plaintiff in the sum of $223,172.28.

I order the defendant to pay the plaintiff's general costs of and incidental to the action.

I order the plaintiff to pay the defendant's costs of the day of 11th December 1990.

DECISION

This is an assessment of damages for personal injury received by the plaintiff in a motor car accident on 19 February 1979. The plaintiff was then 34 years of age. He is now 47.

2. During the 1960's the plaintiff qualified as a motor mechanic, with special qualifications for diesel engines.

3. In 1973 he came to Canberra and obtained employment doing motor mechanical work and selling vehicle spare parts at Canberra Spare Parts. With the permission of his employer, he also undertook occasional work as a tow truck operator for Athol Morris. For his tow truck work he was paid by the hour.

4. His medical history at about the time of the accident is a little complicated.

5. On 28 June 1978 a car engine fell sideways against the inside of his left knee, bruising it severely. The condition of the knee gradually got worse, and in August 1978 he noticed that it was locking occasionally.

6. Then on 4 September 1978 he fell from a shelf at work, twisting as he did so. He felt pain in his lower back, and consulted Dr Appleby on 11 September. In his evidence he said that he lost no time from work, but Dr Appleby recorded that he saw him again on 19 September, when he returned to work. I think it more probable that he had about two weeks off work as a result of this incident.

7. His leg continued to trouble him, and on 30 January 1979 he saw Dr Appleby about it. The doctor suspected an injury to the left medial meniscus, and referred him to Dr Stubbs, Orthopaedic surgeon.

8. Dr Stubbs arranged an appointment to operate on the knee on 8 March 1979, but before the operation the plaintiff was involved in the accident which is the subject of this action.

9. However, he claims that at the time of the accident, despite the discomfort in his knee, he was capable of, and was in fact, carrying out his normal duties at work, both for Canberra Parts and for Athol Morris. He expected to be off work for about six weeks after the operation, and intended to return then to both jobs.

10. On 19 February 1979 he was driving a motor vehicle and stopped at a set of lights. A car ran into the back of him. He was thrown firstly up against the windscreen and then back into the seat of the car. He immediately felt pain between the shoulder blades and felt numbness in his right hand. He had bruises to his knee and elsewhere and was taken to Woden Valley Hospital.

11. The only remaining hospital records indicate that the plaintiff was seen on that date for traumatic chondritis. X-ray of the chest was clear. X-ray of the cervical spine showed some degeneration at the C6/7 level, and of the thoracic spine some degenerative changes in the lower thoracic discs. After staying some time at the hospital for observation, the plaintiff went home.

12. The next day he consulted his general practitioner, Dr Appleby. He was complaining of pain in the neck, left ribs and in the right scapula and bruising to his already painful left knee. On examination Dr Appleby found stiffness in the neck, tenderness of the 8th and 9th left ribs and tenderness in the right inferior scapula area. He prescribed a soft collar and tablets for the pain. The plaintiff returned to see him on 23 February. While his neck was a little better, the back and ribs were still sore. Dr Appleby gave him a certificate to be absent from work for a further five days.

13. The evidence is not clear, but I think it more likely that he did not return to work before being admitted to hospital in early March, when Dr Stubbs successfully performed a menisectomy on his left knee.

14. He went back to work on 30 April 1979, but his knee hurt and his neck ached, so that he saw Dr Appleby the next day.

15. Dr Appleby did not think his knee had sufficiently recovered, and gave him a series of certificates for time off work until the beginning of 1979.

16. At about that time he saw Dr Stubbs again, and discussed with him not only his knee, but also the pain in his neck. He complained of pain between the shoulder blades, soreness at the back of the neck, and headaches, which were made worse by activity.

17. On examination, Dr Stubbs found no signs of neurological deficit, but considerable tenderness over the lower cervical vertebrae, which in his opinion was quite consistent with a whiplash injury and with the history he had been given.

18. He prescribed exercises and swimming for both neck and knee.

19. The plaintiff undertook the exercises and had some chiropractic manipulation which improved his symptoms considerably. He had returned to work before 10 October 1979, and did not consult Dr Stubbs again for treatment after 18 October 1979.

20. He tried to do light duties at his employment with Canberra Spare Parts, and found it difficult. He did no more towing work during the rest of 1979. Dr Appleby continued to see him, and gave him certificates for continued light duties on 26 October, 22 November, 3 December and 21 December 1979 and 31 January 1980.

21. During February 1980 he continued to suffer pain in the upper back, and Dr Appleby gave him certificates for absence from work, until on 29 February 1980 he referred him to Dr Corry. Dr Corry first saw him on 7 March 1980. Dr Corry's opinion was that the injury to the lower back of 4 September 1978 had been minor, and played no part in his disability. The accident of 15 February 1979 had caused a significant whiplash injury to the cervical and dorsal regions. There was also some disc damage at C5/6 level with minor nerve root symptoms.

22. Physiotherapy did not help, so that Dr Corry referred him to the Woden Valley Rehabilitation unit for an intensive gym and exercise program, which resulted in progressive improvement. By 12 September 1980 he was much fitter, at least for lighter work not involving heavy lifting or fixed flexion. Dr Corry referred him to the government rehabilitation service, as a result of which he obtained a position to be trained as a boiler attendant.

23. Dr Andrews saw him for the defendant on 7 October 1980. He thought the disabilities were out of proportion, and that most of his problems were muscular and ligamentous and should be settling down.

24. However, in February 1981 Dr E.J. Cassar, Consultant Physician, examined him also for the defendant. Dr Cassar thought there had been injury to the cervical and dorsal spine, with ligamentous strain and disc degeneration at the C5/6 level, and an anterior wedge fracture of T9 vertebrae, with accompanying degeneration at the T9/10 disc. There was only minor restriction of neck movement as a result, but chronic pain and loss of strength in the dorsal area.

25. Dr Cassar thought he would never be able to resume heavy labouring duties, but could do lighter work. This seems to be consistent with Dr Corry's view, and with his action in sending him to the rehabilitation unit.

26. He obtained his certificate as a steam boiler attendant in April 1981, and began looking for work.

27. He did not return to his former job, and it is clear that it would not have been suitable for him. In September 1981 he got a job as a security guard, at which he worked until October 1982.

28. The work he was doing for most of the time was well within his physical capacity, but in October 1982, he was asked to do guard work, which involved checking individual buses at the Belconnen depot, as well as patrolling the grounds and perimeter on foot. That made his neck and shoulders ache, he declined the change in duties, and his employment terminated.

29. He began to look for work, initially without success, but he was concentrating on seeking a job where he could use his new technical qualifications.

30. In June 1983 Dr Corry referred him to Dr Newcombe, neurosurgeon. He performed a myelogram on 22 July 1983, which showed intervertebral disc protrusions into the spinal canal at all levels between C3/4 and C7/T1. After review in November 1983 Dr Newcombe made arrangements for disc excision and anterior interbody fusion at C5/6 and C6/7 on 27 February 1984. However, the plaintiff's condition improved for a time, and the operation did not go ahead on that date.

31. On 3 May 1984 he obtained a position as a steam boiler attendant at the Canberra College of Advanced Education.

32. Dr Andrews reviewed him in November 1984. He agreed that the plaintiff probably did have a cervical disc lesion, and that surgery might possibly be required.

33. However, it is clear that he was physically capable of doing the job that he had, and in March 1986, Dr Cassar thought surgical intervention was not needed.

34. On the other hand, in April 1986 Dr Andrews expected that surgery would be called for and hoped for a good result.

35. The plaintiff ultimately accepted Dr Newcombe's advice and on 5 December 1986, underwent a Cloward procedure at levels C5/6 and C6/7.

36. He returned to work as a boiler attendant after five weeks. Dr Newcombe reported his reaction to the operation as being "500% of what he was".

37. In evidence he recalled the pain and discomfort of the operation itself. The numbness in the fingers that he had beforehand had gone, but he still had aches in the shoulders and headaches. There was also discomfort, as usual, at the hip donor site.

38. Dr Keiller saw him for medico legal assessment in January 1988. He gave a history that was consistent with his complaints to the other doctors and with his evidence. Dr Keiller thought he had a good result from the operation. The neck still ached, but not as badly as before the fusion. Headaches were less frequent and less severe. His arm ached occasionally, but power and sensation were normal. His condition was stable. He would always be unfit for his motor trade work, but fit for his job as a boiler attendant.

39. Dr Andrea saw him for the defendant once, in May 1988. His opinion about his condition was much the same as Dr Keiller's, but he placed more importance on the radiological evidence of Scheuermann's disease with thoracic spine and degenerative changes in the cervical and thoracic spine. He thought his condition was due mainly, to degenerative change, but commented that it is not possible to know exactly how much it was due to degenerative processes and how much could be blamed on the accident.

40. On 21 September 1990 he was made redundant from his job at the Canberra College of Advanced Education. He has not returned to regular work since. He has, however, an interest in vintage cars, and does some mechanical work in restoring them. He exercises care when he does so, and avoids any heavy work. Even the lighter work takes him longer to do.

41. Dr Corry saw him in October 1990, and found his description of what he could do consistent with his condition and history. So too did Dr Newcombe, who saw him on 3 October 1990. He thought that on balance, it was unlikely that he would be able to regain remunerative employment. The position as a boiler attendant was within his capacity, but such jobs were hard to find. He has looked for work, but without success.

42. The plaintiff's credit was attacked by counsel for the defendant for a number of reasons. He began work at CCAE on 3 May 1984, yet on 17 May 1984 he swore in answer to an interrogatory, that he was totally unable to earn income. His income tax records were difficult to reconcile with his evidence about his income from Athol Morris. A claim was initially made, but not persisted in, for income that was not declared at all. There were changes to the Statement of Particulars and the circumstances surrounding some overpayments of Workers' Compensation were not explained to complete satisfaction. There is some force in those submissions, and I have been deliberately cautious in my approach to his evidence. However, I am satisfied that in his answers in Court he did not make any deliberate attempt to be deceitful.

43. It is also clear that he had some problems with his lower back, which were not connected with the accident, and which would probably have caused him discomfort and absence from work from time to time in any event.

44. But while I do not think that it would have been a substantial disability till the present time, it might well have caused him increasing problems as he got older.

45. I also think it would be unjust to the defendant to assess his claim on the basis that he will never again be able to earn income. I think that with his skills, his knowledge of the vintage car business, and the equipment that he has, he may well be able to carry on some income earning activity, difficult to quantify, but significantly less than what he could have earned had he not been injured. I think the only way I can deal with these considerations is to make a substantial discount when quantifying his future loss of income.

46. He had a significant whiplash injury, which eventually required operative treatment. That treatment was successful, but has not completely eradicated his discomfort. His ability to engage in his chosen leisure activities such as pistol shooting has been significantly reduced. I assess damages for pain and suffering and loss of amenities at $35,000.

47. Section 53A of the Australian Capital Territory Supreme Court Act 1933 did not come into effect until 30 December 1981, and s17(2) of the Statute Law (Miscellaneous Amendments) Act, 1981, which inserted it, provided that it would not apply to proceedings instituted before the commencement of the section. There will therefore be no award of interest.

48. The out-of-pocket expenses were agreed at $7,328.75.

49. The plaintiff was cross examined about the reason for his leaving employment with the security firm. I do not think it matters much that he was aware that his employer was in financial difficulties. Whether he left for that reason or because he could not do the changed work because of pain, the reason he could not then get other employment until May 1984 was his incapacity. There is agreement on the arithmetical calculation of the loss at $45,942.14 which I allow in full.

50. He received Workers' Compensation payments in respect of which he paid tax, but the gross amount of which must be repaid. The Fox v Wood component has been agreed at $4,901.39.

51. Mr Athol Morris gave evidence. The records relating to the plaintiff's employment with him were scanty in the extreme. His recollection is that the plaintiff had ceased employment with him before the accident. I bear in mind the caution with which I must approach the plaintiff's evidence, and his quite frank inability to remember dates, and the length of time since the accident. On the whole of the evidence I am not satisfied that the plaintiff has proved any loss in respect of his employment by Athol Morris.

52. His redundancy on 21 September 1990 was not the result of his injury. His inability to obtain work since may have been, to some extent. But I agree with the submission of counsel for the defendant that he can do a lot more than he has done, according to his evidence.

53. His average gross earnings as a boiler attendant were $588 a week. There is no evidence of the net amount, but at 1991 rates of tax it would be of the order of $455 a week. That would yield a total of about $61,500 to date if it were accepted that he has not had any income earning capacity at all over the whole of that period, and that the lack of capacity has been entirely the result of disabilities caused by the subject accident.

54. The Amended Statement of Particulars was filed on 26 October 1990, more than a month after the plaintiff was put off. No claim was made for continuing wage loss from 3 May 1984 to that date.

55. However, it was stated that the ability of the plaintiff to gain further employment was at risk, having regard to his age and continuing incapacity, and that any further employment he did obtain would be at a lower rate of pay.

56. In one sense, his actual experience since September 1990 could be seen as a practical measure of the risk that he could not find work within his capacity, but I am not satisfied that it has been a true measure of that risk in the past, and I am confident that it is not a true indication of what the experience will be in the future.

57. Both those elements involve the exercise of judgment rather than calculation.

58. I would award $30,000 for loss of income since his redundancy.

59. I think that on the medical evidence, particularly relating to his lower back, it is quite on the cards that he would have stopped working well before the age of 65, that he might well have had substantial periods off work before then, and that he will in fact earn not insignificant amounts between now and then.

60. The present value of $455 a week at 3% for 13 years, that is to age 60, is $256,183. I think it proper to reduce that by more than half. For loss of future income earning capacity I would award him $100,000.

61. The total award is therefore made up as follows:
Pain and Suffering $35,000.00

Loss of income to May 1984 $45,942.14
Loss of income since
September 1990 $30,000.00
Loss of future income $100,000.00
out-of-pocket expenses $7,328.75
Fox v Wood $4,901.39
TOTAL $223,172.28

62. I direct the entry of judgment for the plaintiff in the sum of $223,172.28.

63. I order the defendant to pay the plaintiff's general costs of the action.

64. The action was listed for hearing on 11 December 1990, but was adjourned on that day on the application of the defendant because of a change in particulars notified on 6 December 1990. Costs were reserved. I order the plaintiff to pay the defendant's costs of the day of the 11th December 1990.