Robert Hebditch v Slaven Motors Pty Ltd and Wayne Geoffrey Davey [1995] ACTSC 73 (17 July 1995)

SUPREME COURT OF THE ACT

ROBERT HEBDITCH v. SLAVEN MOTORS PTY LTD and WAYNE GEOFFREY DAVEY
No. SC707 of 1993
ROBERT HEBDITCH v. RUSSELL CHARLES SHEPPEARD
No. SC654 of 1992
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Flexion-extention spinal injury - Cervical fusion - Exacerbation by second accident - No issue of principle.

HEARING

CANBERRA, 29 May 1995
17:7:1995

Counsel for the Plaintiff: Mr G. Lunney

Instructing Solicitors: Sneddon Hall and Gallop

Counsel for the Defendant: Mr Deakin QC with Mr Hooke

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
In the matter of No. SC707 of 1993
Judgment be entered for the plaintiff for $148,448.00
In the matter of No. SC654 of 1992
Judgment be entered for the plaintiff for $6,700.00

DECISION

MASTER A HOGAN These two actions are brought by the one plaintiff. In them he seeks to recover damages for personal injury sustained in two separate motor vehicle accidents. The first action involves an accident on 28 November 1984, and the second one on 26 September 1986.

2. By consent the actions have been heard together, so that the evidence in each is accepted as being evidence in the other. Liability is not in issue in either case.

3. The plaintiff is a married man, born in Sydney on 18 November 1941. He left school at the age of 14, in second year. He worked as a labourer, and later qualified as a scaffolder, and as a driver of forklifts and hoists. For some time he was in partnership with his wife as a scaffolder and equipment driver. He also had a period delivering steel, until his truck broke down and his arrangement with the steel company was terminated.

4. He received unemployment benefits then for about two years, until in 1984 he entered into an arrangement with a florist to deliver flowers in a van that he was buying from the florist. He was engaged in that occupation at the time of the first accident.

5. On 28 November he was on a delivery, and stopped at a set of traffic lights. A vehicle collided with the back of his van, and pushed him into the car in front. The back of the seat snapped off as he was thrown backwards, and then, when he hit the car in front, he was thrown forwards and collided with the windscreen. The seat belt had slipped. He felt pain in his back, across the chest and in his left foot, which became caught in the pedals.

6. He went home, and tried to work the next day. He felt sore all over.

7. On 30 November 1984 he consulted Dr Roantree, his general practitioner. He found restricted neck movement, tenderness over the neck, a bruise on the right upper arm, tenderness of the right leg and swelling of the left foot. He ordered x-rays, which were normal.

8. On 3 December the neck pain was worse, and the thoracic spine was involved. Dr Roantree advised physiotherapy and a further week off work.

9. By 19 December the neck was improving, but the thoracic pain was deteriorating. The physiotherapy was extended, and Indocid prescribed. Neither helped him very much.

10. His wife tried to help with deliveries for the florist, but in December 1984 the arrangement was terminated.

11. The plaintiff had for some time been under treatment for gout, which flared up in January 1984 in his right foot. He was getting headaches and felt that his eyesight was affected. Dr Roantree sought an opinion from an ophthalmologist.

12. By 26 February 1985 his headaches were improving, and Dr Roantree noted an increased range of neck movement. His condition fluctuated over the next few months. He consulted Dr Roantree regularly. In May 1985 Dr Roantree advised him to consider a return to work on light duties.

13. He obtained some casual work, mainly gyprock fixing with a friend for whom he had previously worked, Mr Reid. He tried to stick to light duties, but in the building trade that was difficult, and the increased activity caused pain. He was not capable of doing a full day's work.

14. Dr Roantree noted his complaints of increased pain after exertion, and diagnosed him as suffering from depression as a result of his lack of mobility.

15. Between June and August he was able to obtain some more light casual work, scaffolding.

16. At the end of August 1985 he complained of low back pain, and a CT scan revealed disc bulging at L4/5. Dr Roantree referred him to Dr Chandran, neurosurgeon.

17. He obtained more work late in 1985 delivering groceries for Woolworths, which continued into 1986.

18. Dr Chandran saw him first on 18 October 1985. He found no neurological deficits. He noted the CT scan evidence of a small disc bulge at L5/S1, and a CT scan of the cervical spine showed degenerative changes at C6/7. He prescribed hydrotherapy, and advised further investigation by myelogram to determine the extent of the lumbar damage.

19. His solicitors sought advice from Dr Danta, neurologist, who examined him on 28 October 1985. In his opinion the plaintiff had some degenerative disc disease in the lumbar and cervical spines, which were aggravated and rendered symptomatic by the accident. He thought treatment should continue on conservative lines.

20. Dr Andrews, neurologist, examined him for the defendant on 14 November 1985. His ongoing symptoms were neck pain, and mild continuing low back pain. Dr Andrews reviewed the CT scans. He thought the disc degeneration existed before the accident, but was aggravated and made symptomatic by it. He considered the plaintiff fit for light duties only, and likely to remain that way unless surgery were performed. The symptoms were not sufficiently severe, however, to warrant surgery.

21. In March 1986 the found it necessary to attend Woden Valley Hospital Casualty for a pain relieving injection.

22. In April 1986 Dr Chandran saw him again. The back pain was a constant dull ache, and the plaintiff's main concern was the neck pain and headaches. If there were further deterioration Dr Chandran thought that an anterior fusion in the cervical spine would be called for.

23. At about that time the plaintiff was working as a doorman at a football club.

24. On 26 September 1986 the plaintiff was a passenger in a car being driven by his wife. They had stopped to turn right into a driveway. A van collided with the rear of their car. The plaintiff was shaken up, and the pain in his neck and back increased.

25. Dr Roantree's comment in December 1986 was:

"The involvement in a motor vehicle accident as a passenger in
September, had no direct effect on his condition, but resulted in an
increased frequency of his acute spasms of pain in the ensuing period,
requiring intra-muscular pethidine on 8th October, 1986. This appears
to have again settled to only occasional exacerbations of pain.
In summary, his back condition is such that it is totally unreliable
for physical activity being so susceptible to exacerbation by heavy
lifting or jarring. As his occupation is of a physical nature this
has resulted in a total incapacity from work.
His current treatment is Brufen and Codral Forte and he has been
advised to regularly attend for manipulative physiotherapy. This,
however, appears unavailable due to his poor financial situation."

26. The plaintiff's impression, given in evidence, was that after that aggravation it slowly got worse until he had the operation, which was to happen in June 1992.

27. In late 1986 and early 1987 he continued to see Dr Roantree at about monthly intervals for back pain and exacerbation of his gout. At the end of May 1987 Dr Roantree diagnosed him as suffering from a depressive neurosis. He referred the plaintiff to Dr Howes, rehabilitation specialist, who saw him in July 1987. He found the plaintiff obviously overweight, and thought his back problems were mainly related to the facet joints. He changed his medication for the gout, which eventually settled.

28. In October 1987 he was admitted to hospital with bleeding duodenitis, which Dr Howes thought was related to his medications. Dr Howes could find little he could do, and referred him back to his general practitioner.

29. During 1988 and 1989 he began looking again for any work he could get. What was available was not very suitable, and he had to see Dr Roantree about increased neck and back pain from time to time.

30. Dr Keiller examined him for the defendant on 27 January 1989. The impression he had of the second accident was that it was minor, caused no new injury and no aggravation of previous complaints. He agreed broadly with Dr Andrews' comment. Dr Andrews noted little different in April 1989.

31. A further CT scan was performed on 30 October 1989. There was a small central disc lesion at C5/6, and central disc prolapse at L4/5, but Dr Andrews found no abnormal neurological signs when he reviewed the plaintiff on 14 December 1989. He seemed to favour an operation, a view which was certainly not shared by Dr Keiller, who examined him on 1 November 1989. He regarded the plaintiff as genuine, but requiring conservative treatment.

32. His solicitors sent him back to Dr Chandran in December 1989. The lower back was the main area of complaint. He agreed that in his overweight state the plaintiff was not a proper candidate for surgery. Even if he had surgery, it would be to the lower back, and would not make him fit for heavy work.

33. Dr Roantree commented that throughout 1990 his problems continued, with back pain exacerbated by short periods of casual work or sporting activities, with remissions and relapses.

34. Dr Corry, rehabilitation specialist, saw him on 3 September 1990. He agreed that the continuing symptoms moderately restricted the plaintiff's capacity for heavy work.

35. Dr Roantree noted that in February 1991 the plaintiff suffered sudden low back pain while bending over a car, and pain continued through March and April, prompting an MRI scan in June 1991, which revealed disc bulging at C3/4, C5/6 and C6/7. Nerve root involvement at C6/7 was indicated.

36. In June 1991 he attended the back rehabilitation programme at Woden Valley Hospital. He undertook a computer course, and, although he coped reasonably well physically, he found it difficult. Dr Keiller found him a mixture of motivation to get back to work with a mixture of anxiety, if not depression.

37. Dr Howe reported that he worked extremely well in the back programme, which increased his endurance though it did not change the clinical picture.

38. The Commonwealth Rehabilitation Service was also engaged to assess and stabilise his condition. In addition to the back programme he underwent disability counselling and training in hobby skills. They were of little practical benefit, in the situation in which he found himself. He completed the programme by December 1991.

39. In April 1992 he complained to Dr Chandran that his neck pain was extending into his arm, with pins and needles in the right hand. Nerve conduction study showed a C6 root disturbance. He agreed to an operation, and on 25 June 1993 Dr Chandran performed disc excision, decompression and fusion at C5/6 and 6/7. He spent ten days in hospital.

40. His evidence was that he came out a lot better than when he went in. His neck was better, the headaches had gone, and the numbness on his fingers disappeared.

41. On review in March 1993 Dr Chandran found solid fusion, and further improvement in symptoms. He still advised against any heavy physical work, or work involving repeated bending or lifting.

42. Dr Keiller also noted the improvement in the neck, when he saw the plaintiff in November 1993. The low back was, however, still troubling him. He agreed that his work capacity was still restricted.

43. Early in 1994 he obtained a job coaching softball and basebll in Sweden, which Dr Roantree remarked indicated an improved self confidence about his general health. He also managed to shed about 3 stone in weight, which must have helped his general condition.

44. On his most recent review, in May 1995, Dr Chandran commented:

"OPINION
Your client has reached a stable state as far as the neck is concerned
with minimal symptoms and minor restriction of activities. His main
complaint now is in the lower back.
I feel that he should lose weight, exercise regularly and keep this
under control, avoiding heavy lifting.
I see no indication to look at any surgical treatment for his lower
back and it is unlikely to be needed in the future as well.
I feel that with loss of weight and rehabilitation of his back with
exercises, he should be able to control his symptoms and look at some
form of semi-sedentary type of work."

45. There has been, therefore, no real area of disagreement between the doctors, and none of them were required for cross examination.

46. In summary the plaintiff probably had a degenerative condition of the spine before the first accident. It was not causing any symptoms. He also had suffered from gout for some years, which was controlled by medication.

47. The first accident made the condition of his cervical and lumbar spines symptomatic, and caused an exacerbation of the condition.

48. The second accident caused no further injury, but exacerbated the symptoms for a period of about three to six months.

49. The neck condition, as a result of the accident, deteriorated to the stage where the plaintiff underwent surgery to mitigate the pain. The surgery was successful in that moderate objective. The back still troubles him. There is no indication for further surgery.

50. Before the accident the plaintiff was physically active, and had no real skills other than those associated with fairly strenuous activity. As a result of the accident he has not been able to return to the sort of job that he could do before. He became frustrated and depressed. He separated from his wife and family, although he remains on good terms with them. He has constantly tried to work at whatever jobs were available, which were only intermittent and sometimes beyond his capacity, in that activity caused exacerbation of his pain. He is considering undertaking a course in photography, at which he has some experience.

51. The plaintiff was cross examined about incidents referred to in the clinical notes of Dr Roantree before the accident, such as shoulder pain in September and October 1978, November 1979 and February 1980. Dr Roantree was not asked any questions about them, and they are not sufficiently specific to cause me to doubt the medical evidence that the condition of his spine was asymptomatic before the accident. The incident in October 1978 definitely appears to be focussed on the shoulder joint, and to have nothing to do with the cervical spine. The plaintiff's work and sporting activity was such as to make it likely that he would get muscle strain from time to time in any event.

52. On the other hand, although none of the doctors advert to it, it would be general knowledge that, in its degenerative condition, some other trauma might have made his back symptomatic, even had the accident not happened. It is not possible to estimate the degree of probability, however, and it is also possible that had the accident not happened he might never have suffered significant back problems.

53. The plaintiff is now aged 53.

54. The second accident played little part in his pain or disability. For the exacerbation that it caused I award $5,000. Interest on that should be awarded at 4% from, say, the end of 1986, amounting to $1,700.

55. In Action SC 654 of 1992, Hebditch v Sheppeard, I direct the entry of judgment for the plaintiff for $6,700.

56. Unless counsel wish to be heard to the contrary, I would order the defendant to pay the plaintiff's costs of that action.

57. Costs were obviously to be saved by having that action heard together with the major claim, so that I think it is appropriate that such costs as were incurred in conducting that action should be on the Supreme Court scale.

58. In the main action, I assess damages for pain and suffering at $35,000, of which $5,000 relates to the future. Interest on the past component on the conventional basis is $6,400.

59. The out of pocket expenses are agreed at $18,936. I grant liberty to the defendant to apply in respect of credit for any part of that sum which it has already paid.

60. The principal area of contention in the case relates to the economic loss, both past and future.

61. The plaintiff's taxation records show that before the accident he had intermittent periods of unemployment, and that the earnings from the business that he carried on were not extensive. Those partnership earnings were derived from his exertions, however, and I do not think it is necessary to halve them. On a strict accounting, some deductions should also be added back, but it is not necessary to do that arithmetic for present purposes.

62. Nevertheless, the pattern is illustrated by the figures extracted by counsel for the defendant, set out in the following table:

Tax Year Partnership Earnings DSS Benefit
81/82 $2,232 $5,006
82/83 232 7,576
83/84 3,274 5,598
84/85 6,653 4,107

63. In the light of that history I do not think it is useful to make calculations on the basis of an assumption that the plaintiff would have been employed full time as a driver of a 15 tonne lorry under the Transport Workers' Award. The conclusions about economic loss contained in the accountant's reports, Exhibit A, are not a safe basis for judgment, except for their summary of the plaintiff's actual earnings, which were of the order of $35,740 to 29 May 1995.

64. The period in question in the past extends over ten years. The activity in which he had been engaged was subject to fluctuation, in line with the building economy in Canberra, as well as risks of breakdown. There might well have been times when things could have gone well for the plaintiff. The position delivering flowers might have lasted for some considerable time.

65. I think that a discretionary amount of the order of $35,000 over those ten years is fair as between the parties. Interest on half that amount in accordance with the practice direction is $28,112.

66. It is obvious, again, that his future income earning capacity is impaired, physically. But the extent to which that is productive of economic loss to him is very much a matter for judgment rather than calculation. The pattern of his earnings before the accident is relevant. The chance that some other trauma might have disabled him is also relevant. He may well find some lighter form of occupation within his capacity. The period for which he might have expected to work is about 10 years.

67. I think that an award of $25,000 is fair as between the parties.

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

Pain and suffering $35,000
Interest 6,400
Out of Pocket expenses 18,936
Loss of income 35,000
Interest 28,112
Loss of income earning capacity 25,000
$148,448

69. In action SC 707/93 Hebditch v Slaven Motors Pty Ltd and anor I direct the entry of judgment for the plaintiff for $148,448.