Phillip James Brennan Vian William Hamilton [1994] ACTSC 34 (14 April 1994)

SUPREME COURT OF THE ACT

PHILLIP JAMES BRENNAN v.IAN WILLIAM HAMILTON
No. SC787 OF 1988
Number of pages - 3
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Cervical Soft Tissue Injury - No Issue of Principle

HEARING

CANBERRA, 28 March 1994
14:4:1994

Counsel For The Plaintiff: B Hull

Instructing Solicitors: Wood Fusssell

Counsel For The Defendant: C Whitelaw

Instructing Solicitors: Crossin Barker Gosling

ORDER

The Court Orders that:
Judgment be entered for the plaintiff in the sum of $67,216.

DECISION

MASTER A HOGAN This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 29 November 1985.

2. The plaintiff was born in Mareeba, in Queensland, on 15 February 1959. He left school at the end of Year 10 and worked as a storeman. He returned to school for a while in 1976, but did not complete Year 11. In 1977 his father purchased a property on the Atherton Tablelands, where he went to live with his family. Between then and 1985 he worked as a labourer or pipelayer for enterprises such as the local council, waterboard, or Department of Transport.

3. He came to Canberra in March 1985 and obtained employment with the Electricity Authority.

4. On the night of Saturday 29 November 1985 he took a taxi to a party at a friend's house. As he was about to get out a car came over the crest of a hill and collided with the front of the taxi.

5. The plaintiff had taken off his seat belt, but had time to brace himself by putting his foot up against the dashboard. As the taxi was driven backwards his face collided with his knee. He was dazed, but did not lose consciousness.

6. He helped attend to the injured driver of the other car and then went to the party. He did not have a lot to drink, but had no recollection of going home.

7. The next day, Sunday, he had a headache and a black eye and his neck was sore.

8. On the Monday he went to work, where he felt stiff and sore. His explanation of his black eye was not accepted.

9. On 2 December 1985 he consulted Dr Lai, a general practitioner, who noted the bruising under his left eye, an abrasion in the left eyebrow and mild tenderness in the lower neck. Neck movements were full and there was no upper limb movement. Dr Lai considered that the injuries were mainly muscular and expected complete recovery.

10. He did not, however, return to work at ACTEW, and sought other employment.

11. About six months after the accident he obtained a job as a gyprock fixer with a Mr Cooper. That job involved overhead work, which aggravated his neck pain. However, shortly after that job came to an end he took on a position as a gyprock fixer at the Parliament House site.

12. There the job was heavier, because he was required to fix sheets of fibrous plaster, which are thicker and heavier than gyprock sheets. His headaches increased and he gave up that job in October 1986.

13. Shortly afterwards his father was diagnosed as suffering from cancer and he went to North Queensland to be with his family.

14. After his father died he worked sporadically, but the chronology and other details are most unclear. He did not keep records or lodge any tax returns.

15. In May 1988 he consulted Dr Anderson in Cairns. He had a healed and trouble-free scar which is covered by his left eyebrow. He complained of occasional headaches, an occasional "kinked neck", and burning at the nape of the neck when he did any awkward lifting. Dr Anderson noted a minor loss of rotation of the neck, which he considered to be of little or no significance. The plaintiff told Dr Anderson that his condition was only slightly different, as compared with before the accident.

16. In July 1988 he began to consult Dr Scotton at Cardwell about his health generally and other ailments. He mentioned occasionally that he suffered cervical spine pain.

17. In 1989 he fractured his femur in a work accident. Dr Scotton prescribed pain killers in the treatment of that injury, but they also relieved symptoms in his neck, when he experienced any. When he went back to work it was as a steel fixer and concreting form setter.

18. In March 1990 Dr Anderson manipulated his neck and gave him a prescription for anti-inflammatory tablets, when he complained that his neck ached when travelling in a car or boat.

19. On or about 16 November 1990 Dr Andrews, neurologist, examined him for the defendant. Dr Andrews noted his complaints that since the accident the plaintiff had had some mild, intermittent, neck pain, particularly after long drives or if he had been travelling on a bus, or if his neck was jolted about in a boat. He was aware of some crepitus in the neck. When he had significant neck pain, which was felt at the base of the neck, there might be some occipital, retro orbital headaches.

20. There was no nerve root symptomatology and plain x-rays taken in October 1990 disclosed no abnormality. There was a full range of movement of the neck. Dr Andrews described the injury as minor.

21. The plaintiff returned to North Queensland, where he worked in various labouring jobs. He consulted Dr Scotton from time to time, but usually about matters other then his neck. In February 1993 he did mention the neck problem and the 1985 accident. Dr Scotton arranged plain x-rays, which were unremarkable.

22. Dr Scotton commented:-

"At present his cervical spine symptoms would interfere with Philip
performing heavy manual work involving carrying weight on his shoulders,
or work involving excessive neck flexion and rotation. For example
ploughing a field where it would require constant looking over his
shoulder.
His prognosis providing he stayed fit and away from such aggravating
situations should be good."

23. Dr Andrews reviewed him on 15 September 1993. He found no physical abnormality on examination. He repeated his diagnosis of soft tissue injury, causing mild symptoms aggravated by physical activity. The only restriction would be persistent heavy physical work.

24. His solicitors sought a report from Dr Reimers, neurologist, of Townsville, who saw him on 9 November 1993. The neck pain was described as continuous discomfort, made worse by any form of physical activity. The headaches followed severe neck pain, at a frequency of about every six weeks. He occasionally missed work because of the symptoms. Physical examination was normal, except for slight impairment of sensation over the right ulnar nerve. Dr Reimers thought his condition was stable. He would need to tailor his employment to his symptomatology.

25. In summary, the plaintiff suffered a blow to the head and soft tissue injury to the neck. There is an insignificant scar to the eyebrow. The neck injury was relatively mild, but has been long-lasting, and may be expected to continue indefinitely. His working experience since the accident demonstrates that he is not really prevented from doing any of the sort of work that he might expect to get, except perhaps for the most strenuous and continuous, such as banana harvesting or hand ploughing. But his abilities and his history show that he may be expected always to engage in physical work, even relatively strenuous work. He will be able to perform it, but it will cause him discomfort and occasional severe headaches.

26. For pain and suffering I award $18,000, of which only $3,000 would relate to the future. Interest on the past component amounts to $2,500.

27. The only out-of-pocket expense claimed is $16, which is not contested.

28. It is true that he was not required to resign from his job with the Electricity Authority and that his decision not to return to work there related partly to the way he was treated by his supervisor. But that was connected with the black eye and the unjustified accusation of fighting. On balance I am persuaded that he acted reasonably in looking for other employment. He did so actively. When he got work he was fairly consistently in employment until 1990. Since then he has sometimes left a particular place of employment because of pain in his neck and had some difficulty in finding another job. I agree with counsel that even for the past the assessment of impairment of income-earning capacity in this case is a matter for judgment rather than calculation.

29. I think that an average of ten to fifteen hours a week probably overstates the loss.

30. As a matter of discretionary judgment I award $10,000 for past economic loss. Interest on that component amounts to $6,700.

31. For the future, I note that the present value of $1 a week for 30 years at three per cent is $1,038. I think again that it overstates his loss to suggest that it will average $50 a week over the rest of his working life. I think he probably will tailor his employment to fit his disability. Again, as a matter of discretionary judgment, I would assess the diminution in his future income-earning capacity at $30,000.

32. The total award is therefore made up as follows:-

Pain and Suffering $18,000
Interest $ 2,500
Out of Pocket Expenses $ 16
Past Economic Loss $10,000
Interest $ 6,700
Future Economic Loss $30,000
TOTAL $67,216

33. I direct the entry of judgment for the plaintiff for $67,216.