Benjamin Anthony Gafa v William John Philp [1992] ACTSC 109 (30 October 1992)

SUPREME COURT OF THE ACT

BENJAMIN ANTHONY GAFA v. WILLIAM JOHN PHILP
No. SC 283 of 1988
Number of pages - 22
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Whiplash - Depression - Predisposing factors.

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

HEARING

CANBERRA
30:10:1992

Counsel for the Plaintiff: B. Salmon QC

B. Gillies

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: C. Whitelaw

Instructing Solicitors: Crossin Barker Gosling

ORDER

The Court orders that:

1. Judgment be entered for the plaintiff in the sum of $220,987.

DECISION

This is the assessment of damages in a claim for personal injuries arising out of a motor vehicle accident which occurred on 22 February 1986.

2. The plaintiff was born in Malta on 28 September 1949 and came to Australia with his family in 1950.

3. He was educated in Canberra, but left school when his father died when he was about 14, so that he did not obtain his School Certificate. After working in a service station, he joined the Territory's Electricity Authority as a labourer.

4. He attended a training course at technical college and progressed normally by various promotions with the Authority, becoming an 'A' grade linesman in 1972.

5. Both at school and after leaving it he was a keen sportsman and played representative rugby league in the Molonglo Shield Competition.

6. He married on 15 June 1974 and shortly afterwards started working at a second job as a barman, first at the Queanbeyan RSL Club and then with the Canberra Workers Club. After about a year he applied for a job at the Workers Club and was soon working about four or five nights a week.

7. In September 1975 he began to purchase his house. His first son was born the next year, and in 1977 he was promoted to leading hand. At one stage he took time off from the Electricity Authority and worked full time as a supervisor at the Adelaide Tavern. He later transferred to the Canberra Labour Club, and began to entertain thoughts that he might in time change his career to that of club management. However he was not neglecting his duties with the Authority, and in 1984 he was promoted to foreman. By 1985 he was regularly working as a supervisor at the Club on Friday and Saturday nights.

8. In February 1986 he was in relatively good health. In February 1984 he had injured his right shoulder, and in November 1985 he had injured his left knee at work, and he had broken one finger on his right hand in a sporting accident, but he was not suffering any residual disabilities as a result of any of those minor injuries.

9. On the early afternoon of 22 February 1986 he was driving home from work along Barry Drive when a car driven by the defendant made a right hand turn in front of him. There was a violent collision. He was shaken up but did not lose consciousness. His memory of the immediate aftermath of the accident is vague. His car was towed away but he was not sure how he got home. He was not able to work at the Club that evening, and went to bed early.

10. When he woke the next morning he was very stiff, especially in the neck. The neck was aching. He spent the day in bed.

11. On Monday 24 February 1986 he consulted Dr Guirguis, his general practitioner.

12. Dr Guirguis found that his neck movements were restricted and painful, with tenderness over the lower cervical vertebrae. He advised the plaintiff to have physiotherapy. He underwent five treatments from Mr Rumore, which gave him only temporary relief.

13. He went back to work but over the following few weeks his condition became worse. Dr Guirguis prescribed a non-steroid anti-inflammatory medication and another course of physiotherapy, which again failed to maintain prolonged relief. An X-ray did not reveal any boney abnormality. From time to time he obtained certificates from Dr Guirguis for time off work.

14. The plaintiff claims that his marriage was happy and successful before his accident. By June of 1986, however, he had begun to discuss with Dr Guirguis problems that he was having with his wife. By the middle of July he had left home and gone to live with a friend. The marriage was subsequently dissolved and his interest in the matrimonial home was transferred to his wife.

15. Dr Guirguis noted that as a result of his injury the plaintiff had great difficulty coping with the duties of his job. He was required to drive long distances each day. There were staff shortages and increasing work pressures. His family situation was deteriorating. In time the plaintiff developed a depressive illness.

16. The Electricity Authority sent him to see Dr Danta, neurologist, who examined him on 14 August 1986. The history that he gave to Dr Danta was very much the same as what he had told Dr Guirguis. He had intermittent pain in the neck and the back of his head, which was aggravated by prolonged driving. There were stresses and pressure at work and difficulties at home. Typically he would have little pain in the mornings but pain would gradually come on during the day and be worse in the late afternoons and the evenings. There were occasional days without any pain at all, but he usually had pain at least in the evenings. He felt that on the whole he was getting worse.

17. On examination Dr Danta found that neck movements were full and there was no tenderness or any other abnormal neurological signs. In Dr Danta's opinion he had suffered a typical whiplash injury to the neck, which had so far not responded to conservative treatment. Dr Danta advised a different type of physiotherapy and suggested that he might benefit from wearing a collar whilst driving and whilst leaning over a desk. He underwent some further physiotherapy and in September 1986 returned to work.

18. Dr Corry examined him on 30 October 1986, also at the request of his employer. He had reports from Drs Danta and Guirguis. The plaintiff had been put off work by Dr Guirguis since 21 October, and since resting at home his symptoms had improved. He was becoming increasingly depressed about his continuing symptoms and the restriction in his physical activity. He was beginning to suffer pain in his shoulder at the site of the previous work injury.

19. Dr Corry found that the movements of his cervical spine were full, but there were complaints of discomfort at the extremes. There was some local tenderness in the posterior muscles at the back of the neck. Dr Corry agreed that the plaintiff had sustained a whiplash trauma to the cervical spine with major damage to the soft tissues in the neck in the accident on 22 February 1986. His anxieties and stresses may also have served to aggravate the muscle tension symptoms and the headaches.

20. Over the rest of 1986 and during 1987 he felt stressed and depressed. He had absences from work. In November 1987 he was involved in another motor vehicle collision which increased the stiffness in his neck for a short time.

21. Although he had indulged in some gambling before February 1986, during 1987 he found that he went to the Club to play the poker machines to try to relieve his stress, tension and depression. He began to lose considerable amounts of money. That did not improve his emotional state.

22. In August 1988 he was still complaining to Dr Guirguis of neck pain. There was slight limitation of neck mobility and tenderness of the neck muscles. All the doctors who had seen him advised a continuation of conservative treatment for his soft tissue injury. In a report dated 28 September 1988, Dr Guirguis summarised the position as follows:

"In my opinion Mr Gafa is still suffering the consequences of the
two motor vehicle accidents of February 1986 and November 1987.
He continues to require intermittent physiotherapy and non-steroid
anti-inflammatory medications. As it is now nearly 30 months since
the first accident and he is still symptomatic I don't feel too
optimistic about the prognosis. I certainly advise against heavy
manual work. During acute exacerbations of his neck pain, he would
require a few days off work."

23. Despite Dr Guirguis's reference to the 1987 accident, I do not think that its effects were other than temporary, nor is there any evidence that it was severe enough to have had the same consequences as the 1986 accident.

24. Early in 1989 he undertook a course in management and administration at the Woden TAFE to enable him to move away from physical work into administration with the Electricity Authority. During the previous year he had obtained a qualification as a supervisor. He found that the management course involved much more work and much more stress than the supervisor's course. He was able to complete only one semester of the course.

25. By this time his gambling habit had become compulsive. Dr Guirguis referred him to Mr Petroni, a clinical psychologist. The plaintiff attended on Mr Petroni for eight therapy sessions. Although the reference had been for the gambling, and not for the whiplash injury, Mr Petroni did include some pain management in his program. His subjective diagnosis at the time was that the marital and gambling problems pre-dated the accident, but the possibility that the accident aggravated both the marital situation and gambling habit could not be excluded. The plaintiff felt better for a short time after the consultations with Mr Petroni, but his increased, though short lived, confidence only led to an overall increase in his gambling.

26. Dr Danta examined the plaintiff again, at the request of his solicitors, on 7 September 1989. He still complained of pain in the neck, which was not continuous but recurrent. The neck movements were full. There was no particular tenderness. There were no abnormal neurological signs. In Dr Danta's opinion the neck pain and the headaches were a direct consequence of the whiplash injury to the neck. His depression and gambling were an indirect consequence of his suffering the chronic pain. He thought the prognosis was poor.

27. Despite occasional absences from work, he was able to perform satisfactorily at the Authority, and late in 1989 was promoted to superintendent.

28. On 21 November 1989 Dr Andrews, neurologist, examined him for the defendant. On physical examination neck movements were full and there were no abnormal neurological signs. Dr Andrews ordered a CT scan of the cervical spine, which was performed on 23 November, and which disclosed no abnormality. His solicitors sought psychiatric advice, and arranged for Dr Knox to examine him on 14 June 1990.

29. Dr Knox observed that the accident, and the disturbance to the plaintiff's health which followed it, appeared to have triggered a very marked decompensation in his psychological and social stability. His physical condition seemed to have settled relatively satisfactorily apart from the ongoing headaches. While the headaches might in part have been due to the whiplash injury, Dr Knox thought they were also likely to be the result of his poor emotional health in more recent years. Dr Knox advised the plaintiff to seek professional assistance from experts experienced in compulsive gambling and to follow Dr Guirguis's advice about the use of anti-depressant medication, which he had previously refused. He concluded:

"While there are underlying vulnerabilities in this man which have
contributed quite significantly to his present condition, and which
are not directly related to the 1986 accident, nonetheless prior to
1986 Mr Gafa appears to have conducted his work and personal life
relatively competently, and it would appear that the accident and
its sequelae have acted as a powerful catalyst in destabilising his
life."

30. Early in 1992 the plaintiff felt more than usually depressed and Dr Guirguis made an urgent appointment for him to see Dr Knox, who provided some therapy for him over about four or five visits.

31. The defendant's solicitors sought an opinion from Dr Gupta, consultant psychiatrist, who examined the plaintiff briefly in August 1991, and then more fully in March 1992. His principal complaints to Dr Gupta were of headaches and depression, both dating back to the accident in 1986.

32. When he probed more deeply, Dr Gupta gained the impression that the plaintiff had enjoyed his ability to work at two jobs, and the freedom and company involved in the night time work at the Club. The accident had affected his capacity to work at the second job. Dr Gupta claimed that:

"However, he freely acknowledged that the break up of his marriage
was due to the loss of his night life. In earlier years, the extra
marital enjoyment kept the marriage together."

He expressed his opinion as follows:

"Given that the break up of the relationship with his wife,
as stated earlier, was not an outcome of the pain or accident
but rather due to the loss of his night life, I find it
inconsistent that the pain and depression have affected him
to the extent that he is incapacitated to work in his second
job or to make friends or be as clinically depressed as he
claims but he remained unaffected for his day full time
employment. It is clear from Mr Gafa's history that his
marriage break up, current financial problems and loneliness,
are not accident or pain related issues.
A natural sequelae of chronic pain is irritability, sleeplessness,
exhaustion and depression. If Mr Gafa's pain was to cause all
this, I would have expected that these would have affected him in
his main employment causing him to lose efficiency and functional
ability.
Therefore, my impression is that there are certain aspects of his
history which are inconsistent, and the disability claimed is out
of proportion to the nature of the injury."

33. Dr Andrews, on reading the reports available in May 1992, at first acknowledged the accuracy of Dr Knox's statement that the accident had acted as a powerful catalyst in destabilising the plaintiff's life. He commented:

"In general, this fellow's physical injuries are of a trivial and
minor nature. The major problem is his psychiatric condition and
the disintegration of his social life and impulsive gambling and
thus his secondary financial difficulties."

34. He at first apportioned the disruption as being 80 percent pre-existing, and 20 percent due to the triggering factor, the motor vehicle accident.

35. In August 1992 he reviewed the further reports, including that of Dr Gupta, and revised his apportionment to 90 percent pre-existing and 10 percent triggering factors.

36. Dr Andrews is an eminent consultant neurologist. He is not a psychiatrist, and he is not a lawyer. I have had the benefit, as he has not, of hearing the plaintiff give evidence and be cross-examined, and of hearing Drs Guirguis, Knox and Gupta and Mr Petroni undergo the same process. I find myself unable to attach much, if any, weight to Dr Andrews's apportionment, even if I were satisfied that he was applying the correct legal test to the problem.

37. Although it is obvious that the plaintiff's physical injuries were to soft tissues only, I do not think it is accurate to describe them as trivial and minor. Dr Corry, a rehabilitation specialist, in his report of 5 November 1986, described a whiplash trauma to his cervical spine "with major damage to the soft tissues in the neck". As Dr Guirguis noted in September 1988, the injury led to chronic neck pain necessitating the use of non-steroid anti-inflammatory medication and physiotherapy. Different types of physiotherapy failed to give real relief. He was still symptomatic after 30 months, and the prognosis then was not good.

38. In cross-examination Dr Gupta did not venture to disagree substantially with Dr Knox's opinion, though he would not himself have described the accident as having been a "powerful catalyst".

39. Dr Knox saw the plaintiff initially for medico legal purposes. Dr Guirguis later referred the plaintiff to him for treatment. Dr Knox gave evidence and was cross examined. Of course the extra information that he obtained in the course of treating the plaintiff gave him a deeper insight into the plaintiff's condition. To the extent that Dr Gupta's views differ from his, I prefer Dr Knox's opinion.

40. In his evidence Dr Knox agreed with the proposition that the plaintiff had factors in his background which made him susceptible to depression. On the surface he was able to function normally before the accident despite the stresses to which he might have been subjected. The accident had been the trigger, the catalyst, which made the difference between the way he was functioning before the accident and the way he was able to function afterwards. Dr Knox felt that:

"Probably he was pretty stretched at that point, and I think that's
partly why the accident did sort of knock him for six in the way
that it did, more than purely the simple physical consequences of
the accident, which in themselves were bad enough, but there were
other factors that made him so vulnerable at that time."

41. He described his depression as being reactive to the losses and stresses in his life since the accident.

42. If the accident had not happened, the vulnerability was there, and some other stress could possibly have come along to provoke a depressive illness into being.

43. Dr Knox was not optimistic about the future. The plaintiff seemed entrenched in a chronic depression, and unable to act decisively to make his life a happier and more fulfilling one. Treatment should be directed, in Dr Knox's view as I understood it, at that ability to act decisively. But his expectation was only of a modest improvement in his overall condition, even after many years of treatment.

44. The solicitors for the defendant referred the plaintiff to Dr Athanasou, a consultant psychologist, who specialises in vocational guidance. The purpose of the referral was to assess the effects on the plaintiff's income earning capacity of the injuries he sustained in the accident. The personality tests indicated a high degree of neuroticism, but the results were otherwise within normal limits.

45. Dr Athanasou arrived at the conclusion that the plaintiff has the capacity to continue working at his present job. That is not really very remarkable, since he has not claimed that he is incapable of doing so. He suffers considerable stress at work, but it is clear from the evidence of the plaintiff and others who work with him that he is able to perform his duties at a level which is satisfactory to his employer, though he does not get on with people now as well as he did before the accident.

46. One may entertain a suspicion that the plaintiff's marriage must have been a very fragile one if the pain and discomfort of a whiplash injury to the neck could result in its termination within such a short time.

47. In the nature of things it must be difficult for a defendant's advisers to obtain evidence about such an aspect of a plaintiff's case. But the case can be decided only on the evidence, and the only evidence in this case is that to all outward appearances the plaintiff was enjoying a contented and successful married life. I did not understand what he may have told Dr Gupta to imply any infidelity on his part. Certainly I am not satisfied on the evidence in this case that, without the accident, the state of his marriage, or indeed the stresses that he was being subjected to at work, would have brought on any depression such as he undoubtedly suffered after the accident happened.

48. This is not, as I see it, a case which really depends for its resolution upon questions of burden or onus of proof, either in the legal or evidentiary sense, such as were discussed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

49. But, to paraphrase the dictum of Windeyer J. at 171-172 in Purkess v Crittenden (supra), the plaintiff's psychological makeup before the accident may have made its consequences more serious for him than they would have been for a person of more normally robust disposition. But that does not reduce the damages for which the defendant is liable. Nor is this a case, like Watts v Rake (supra), where the plaintiff, before the accident, was already suffering from a condition which would have disabled him within a period of time. On the evidence in this case this plaintiff, had the accident not happened, might well never have suffered from any form of depression. It is possible, but no more than possible, that some other incident might have triggered a similar condition. That other incident might or might not have given rise to a right in him to be compensated for its consequences. But in assessing damages in this case I am not required to do more than acknowledge that possibility, and take it into account.

50. I am not required, and I think it would be contrary to legal principle, to attempt to apportion his condition as between the pre-existing susceptibility and the triggering accident, in the manner attempted by Dr Andrews. If that were a correct approach in the circumstances of this case, and it were suggested that his disabilities could "be disentangled and one or more traced to causes in which the injuries he sustained through the accident played no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause".

51. See per Dixon C.J. in Watts v Rake (supra) at 160. The defendant has not so disentangled the disabilities or the causes of them.

52. In summary, I am satisfied that as a result of the collision for which the defendant is responsible, the plaintiff suffered a moderately severe soft tissue injury to the neck. The pain and restriction of movement in the neck and the headaches which resulted from that injury did not subside quickly. The plaintiffs psychological health was adversely affected, he abandoned his marriage and became a compulsive gambler. The physical consequences have still not subsided completely, though there is now no longer any significant restriction of movement, and the pain and headaches are intermittent.

53. The changes in his life have had the result that his depression continues. It is alleviated to some extent by medication, which he does not take regularly. I expect that he will undergo therapy for it, which will probably bring about some improvement, rather than effect a cure.

54. He is not prevented from being able to carry out his full-time job with the Electricity Authority, but he is no longer able to enjoy the extra work that he used to do at the Club, and he has had to abandon any plans that he might have had to change his career to one of club management. That last aspect is relevant more to the loss of amenity of his life, rather than to future economic loss. I do not think that there has been proved any economic loss following from the loss of that particular prospect.

55. There is mention in some of the reports to pain in the right shoulder. I regard that as being a temporary exacerbation of a pre-existing injury, and it does not play a very significant part in the overall picture of his injury resulting from the accident.

56. I would assess compensation for his pain and suffering and loss of amenity of life at $50,000, of which I would attribute $20,000 to the future.

57. For interest on the past component on the conventional basis I award $3,700.

58. On the basis that all the treatment was made necessary by the subject accident, out-of-pocket expenses totalling $2,639 are not contested. The bulk of them were paid by Comcare, so that there is no award of interest called for on them.

59. The Fox v Wood component on the same hypothesis is agreed at $9,976, in round figures.

60. There is a claim for the cost of treatment in the future. I am not satisfied that there will be any future physiotherapy, because the neck symptoms are no longer major, and physiotherapy has not helped in the past. Dr Knox forecast a series of therapy sessions that would cost about $1,000. The plaintiff did not give evidence that he intended to undergo them. I would award $500.00 on account of the likelihood that he will do so.

61. There is no real contest, again on the basis of what I have decided, but that the plaintiff lost income from work at the Electricity Authority totalling $31,922.

62. The claim for loss of overtime is contested. The plaintiff's claim is based on figures supplied by the Authority for earnings of a comparable employee in 1989/1990. They do not allow an accurate estimate of the tax to be deducted. If 30 percent is the correct tax rate (and I am not sure that it should not be more) the amount claimed is $5,664.

63. The defendant tendered a document, also from the Authority, which supplied figures based on the plaintiff's own overtime earnings during the six months before the accident. I think that would be a more sure guide. But those figures also are gross. An approximation suggested by counsel during argument yielded a result of $1,794. I do not think injustice would be done to either party by my allowing $2,500 for the loss of overtime. That would have been incurred in the years to 1989. In lieu of interest on that item of loss, I award a discretionary lump sum of $750.00.

64. The next item is the loss of the earnings he otherwise would have received from his work at the Club. A projection based on two nights a week and making allowance for award increases, less tax at the rate of 39 percent, which I think is the most appropriate, gives a result of about $38,000 in round figures to the date of this judgment. I think that some considerable discount should be made on account of the possibility that the work may not always have been available, and award $30,000 for loss of income for his secondary employment. Interest on that amount at 7 percent is $14,000.

65. Future economic loss is claimed, based only on the loss of the secondary employment. The net weekly amount involved in between $164.00 and $178.00 a week. But I think it would be quite wrong to make calculations based on an assumption that the plaintiff would have continued to work at that job until he was 65, or even 60. The present value of $170.00 a week for 10 years at 3 percent is $76,773. I think that $75,000 is a proper award for loss of future income earning capacity.

66. The total award is therefore made up as follows:

Pain and suffering $50,000
Interest 3,700
Out-of-pocket expenses 2,639
Fox v Wood 9,976
Future treatment 500
Past loss of basic income 31,922
Past loss of overtime 2,500
Interest 750
Past loss of secondary income 30,000
Interest 14,000
Loss of future income 75,000
TOTAL $220,987

67. I direct the entry of judgment for the plaintiff in the sum of $220,987.