Michael Leslie Roberts v Daryl James Brown [1995] ACTSC 57 (22 June 1995)

SUPREME COURT OF THE ACT

MICHAEL LESLIE ROBERTS v DARYL JAMES BROWN
No. SC220 of 1992
Number of pages - 6
Damages

COURT

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

CATCHWORDS

Damage - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash cervical injury - Economic loss - No issue of principle.

HEARING

CANBERRA, 1 and 2 March 1995
22:6:1995

Counsel for the Plaintiff: Mr F.G. Parker

Instructing Solicitors: Gary Robb and Associates

Counsel for the Defendant: Mr M. McDonogh

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $62,749.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 8 July 1991. Liability is admitted.

2. The plaintiff is a single man, born on 7 April 1970. He left school at the age of 15 and began to work as a truck offsider. After a number of other jobs he began to work as a delivery truck driver in 1987. He was put off in June 1988, as his job had been only temporary. He began to take casual work in landscaping, doing labouring work and driving machinery. Employment was not constant. During 1990 he attended a course at the TAFE College, where he obtained certificates of competency in operating backhoes, forklifts and front end loaders. Early in 1991 he served a short term of imprisonment for drink driving offences, and was looking for work after his release.

3. On 8 July 1991 he was a passenger in a motor car, seated in the front passenger's side and wearing a seat belt, when another vehicle collided with the rear of that car. He immediately felt pain in the shoulder area. He needed help to get out of the car. He was taken by ambulance to Woden Valley Hospital, where X-Rays were taken. He was given a soft collar and medication and allowed to leave after observation.

4. The pain in his neck persisted, and he returned to the hospital 3 days later. Physiotherapy was prescribed, and he attended the physiotherapy department at Woden Valley Hospital on a number of occasions after 18 July 1991.

5. On 7 August 1991 he consulted Dr. Stevens, a general practitioner, complaining that the pain had not improved at all in the neck, upper arm and elbow, and there was tingling in his fingers. He did not want to take medication. He was given a certificate for two weeks off work, and a referral for further physiotherapy.

6. There was no improvement, so Dr. Stevens referred him to Dr. Kitchin, orthopaedic surgeon, who saw him on 11 November 1991. X-Rays were still normal, and Dr. Kitchin ordered CT scans of the cervical spine, which were also normal. He advised a manipulation of the neck under general anaesthetic, which he carried out at John James Hospital on 3 December 1991. On review on " December 1991 there was still persistent pain, which suggested a disc lesion, so Dr. Kitchin referred him to Dr. Robson, neurosurgeon.

7. Dr. Robson reported to Dr. Kitchin on 2 March 1992 that in his opinion a cervical disc was torn, although pathology was not demonstrated by the scan. He suggested surgery to the plaintiff, who decided against the suggestion. It is not suggested that his decision was unreasonable.

8. In October 1992 he was examined for the defendant by Dr. Andrews, neurologist. By this time his neck had improved. His complaints were of occasional mild cervical pain and some tingling in fingers of the right hand. He appeared fit to Dr. Andrews who thought he was capable of returning to work driving a back hoe.

9. The plaintiff has not had full time work since the accident. He claimed that he had attempted part time work, hoping that it would lead to something better, but that he was unable to perform his duties because he got pain in the neck after exertion.

10. His solicitors referred him to Dr. White, neurologist, in March 1993. He stated to Dr. White that he had made no substantial improvement since the neck manipulation by Dr. Kitchin. He said that he had intermittent periods of pain free time, but had continuing complaints most of the time. On examination Dr. White found marked tenderness over C4/5 with intermittent muscle spasm on flexion. There was also muscle spasm of the right rhomboid muscle. Neurological examination was entirely normal. Dr. White also thought it most likely that there had been intrinsic damage to one of the cervical discs, and recommended a conservative course of action. He thought it unlikely that the plaintiff would ever be able to return to heavy work in the future.

11. Dr. Andrews reviewed his condition on 3 March 1994. He noted a complaint of very mild neck pain with very occasional right occipital headaches. On examination there was a good range of neck movement and no neurological signs. The plaintiff told him that he was looking for work, but finding it difficult to obtain employment. Dr. Andrews thought that he was quite fit for physical work.

12. His solicitors referred him to Dr. Scott, an occupational physician, who saw him on 21 June 1994. On examination he found only some tenderness over the neck muscles. His diagnosis was that the plaintiff had a soft tissue injury, but that since the symptoms had persisted for 3 years it was not likely that he would ever have a pain free neck.

13. Dr. White reviewed him on 15 February 1995. He was told that there had been gradual diminution in symptoms, such that the plaintiff only had minor cervical pain which was present most of the time. He was able to cope with most activities other than heavy lifting. On examination there was no evidence of anything other than minor cervical discomfort. There was a full range of movement and no neurological abnormality. Dr. White did not believe that the plaintiff would have permanent disability, but felt that he would always have to be careful with heavy work. He was not convinced that his working capacity was impaired. His overall prognosis was good for what Dr. White considered to have been primary disc injury.

14. None of the doctors were required to attend for cross-examination.

15. Early in 1992 the plaintiff began to live in a relationship with a lady who has borne him two children. There are four children in the family unit.

16. The plaintiff was cross-examined about a number of other accidents in which he had been involved, but I do not think that any of the injuries that he might have suffered in them are relevant to this action. He may well have suffered some temporary aggravation of his discomfort, but I am not persuaded by the absence of any record of complaint to the physiotherapist that he was deliberately suppressing information about them. It is more likely that, given his description of the incidents, either the physiotherapist, or, more likely, he himself, did not think them relevant.

17. I am, however, concerned about the evidence relating to the plaintiff's work history since the accident.

18. In his evidence in chief the plaintiff said that he had not been employed since the accident, other than in casual work as a roof tiler for about a month at the beginning of 1994.

19. In an answer to interrogatories sworn to on 20 March 1993 he swore that he had not worked in any occupation since the accident, and that his only source of income had been the Department of Social Security.

20. The defendant called as a witness Ms Strange, the physiotherapist who had attended him at Woden Valley Hospital on 18 July 1991, ten days after the accident, and tendered in evidence her clinical notes. She had no independent recollection of having seen the plaintiff, but her notes of the initial history she received from him on 18 July 1991 included the entry, "Now truck driving with collar on 8 hrs a day", and another entry, "needs to work".

21. On 9 August she recorded his complaints as "Reasonable. Just drove back from Melbourne (all night). 2 hrs sleep. Neck stiff and tense and sore. (No collar)."

22. On 11 August there is a notation that an appointment was cancelled, "Still travelling (to and from) Melbourne."

23. On 6 September 1991 her entry was, "Has been travelling ++ since last (appointment). (Mostly driving (?) trucks.)"

24. Her summary on that date reads, "Michael is a long distance truck driver. Has been driving ++ since neck injury (leading to) Headaches and pain." and
"(1) Blocked (rotation to right)

(2) poor posture
(3) headaches aggravated by posture
(4) poor truck seats
(5) physiot. not frequent enough."

25. In cross-examination the plaintiff denied that he had done any work driving trucks to and from Melbourne. He pointed out that he could not drive a truck without a truck driver's licence, and he did not hold one.

26. I think it is most unlikely that any truck owner would allow a person such as the plaintiff to drive his vehicle without the necessary licence, and there was no evidence that the plaintiff held, or ever had held, such a licence. Having shortly before been released from prison on a drink driving offence it is most unlikely that he could obtain one.

27. The plaintiff also denied telling the physiotherapist that he had been driving a truck. There could be no doubting the honesty and truthfulness of Ms Strange. This is not a case where I am asked to infer from the absence of a record that nothing was said about a particular matter. It is certain that on each of four occasions she understood the plaintiff to be giving her information to the effect that he was travelling to and from Melbourne, and that the driving was affecting his neck.

28. The plaintiff's father also gave evidence. At the time of the accident the plaintiff was living at home with him and his wife. As far as he was aware the plaintiff was not working during the period of 3 or 4 months after the accident. He himself was working, between 7 a.m. and 5 p.m. The length of time involved in driving to Melbourne and back is such that there is no way that he could be mistaken. There was nothing in his demeanour or his evidence to raise any doubt at all about his veracity.

29. I also note from the physiotherapist's clinical notes that on 30 July 1991, about 2 weeks after the accident, there is an entry in the handwriting of another physiotherapist, "Pt has ceased wearing collar - off work for 2/52."

30. The following entry, in Ms Strange's writing, for 1 August 1991, reads, "Still off work for another week."

31. There is also the undoubted painful state of his neck to be taken into account.

32. On the whole of the evidence, I think that it is most improbable that this plaintiff was driving to and from Melbourne within a month after the accident. How Ms Strange came to the honest misunderstanding that she did I will never know, but it seems to me that the probability that she did misunderstand is far greater than any chance that the plaintiff was driving trucks to and from Melbourne at that time.

33. In summary the plaintiff sustained in the accident a moderately severe flexion extension injury to the cervical spine. He underwent physiotherapy, and manipulation of the neck under general anaesthetic. In addition to soft tissue injury, it is probably that some damage was done to one of the cervical discs, although there is no radiological evidence of it, and the plaintiff is wise in deciding to have only conservative treatment for it.

34. The pain has gradually diminished so that there is only minor pain most of the time, but, since it has persisted for so long, it is unlikely that he will ever be completely free of pain. I agree with Dr White's assessment that he is not significantly disabled, but will always need to be careful with heavy work.

35. For his pain and suffering I award $20,000, of which about $5,000 relates to the future. Interest on the past component is $1,200.

36. The out of pocket expenses have been agreed at $2,849.

37. Over the five years before the accident the plaintiff's work history had been intermittent. He had been out of work between May 1986 and May 1987. He was a delivery truck driver from May to August 1987, out of work till February 1988, truck driving till June 1988, and from then until the accident doing casual landscape gardening. There is no evidence of his earnings in that occupation, but the parties are agreed that since 1988 the plaintiff has been continuously receiving social security benefits in one form or another.

38. There has been a diminution in his capacity to earn income, particularly over a period of about two years after the accident. Valuing the extent to which that diminution has caused economic loss to him is a matter for discretionary judgment rather than calculation. In the light of his employment history I do not think that a large sum is called for, despite the four years that have passed since the accident.

39. I award $15,000 for past economic loss.

40. Interest on half that amount, calculated in accordance with the practice direction, is $3,700.

41. For similar reasons I think that only a modest award for the future is called for, to take account of the fact that heavier types of labouring work, which he has done in the past, are not suitable, and he may find it more difficult to get jobs in the light of his medical history. He has acquired family responsibilities, and might be expected to be more assiduous in seeking work than he was before the accident. He is only 25 years of age.

42. I award $20,000 for future economic loss.

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

Pain and suffering $20,000
Interest 1,200
Out of pocket expenses 2,849
Past economic loss 15,000
Interest 3,700
Future economic loss 20,000
$62,749

44. I direct the entry of judgment for the plaintiff in the sum of $62,749.00.