Paul Alexander Stewart v Jennifer Booth [1995] ACTSC 8 (17 February 1995)

SUPREME COURT OF THE ACT

PAUL ALEXANDER STEWART v. JENNIFER BOOTH
No. SC408 of 1989
Number of pages - 9
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Contributory Negligence - Motor Vehicle Accident - Give Way Intersection - Vehicle changing lanes - Indicating intention by signal - Not turning left at intersection - Mistake by driver of Give Way vehicle - No issue of principle.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft tissue cervical injury - Loss of income earning capacity - No issue of principle.

HEARING

CANBERRA, 1 November 1994
17:2:1995

Counsel for the Plaintiff: Mr G Stretton

Instructing Solicitors: Vandenberg Reid

Counsel for the Defendant: Mr C Branson QC with Mr M McDonogh

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

The Court orders that:

1. Judgment be entered for the plaintiff for $155,362.00

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 15 May 1989.

2. The plaintiff is a carpenter by occupation, born in England in 1944. He came to Australia in 1950, and after obtaining his Intermediate Certificate, completed an apprenticeship as a carpenter and joiner at the Naval Dockyard at Garden Island.

3. He then worked as a carpenter for wages for various employers in Sydney, and for a time in Perth.

4. He married in 1967. He has two living children, born in 1969 and 1973.

5. In November 1969 he learned the trade of carpet laying, and worked at it in Canberra until 1978. He then returned to carpentry, and began to take work as a subcontractor in Canberra in about 1984, for part of the time in partnership with a Mr Melzer.

6. In 1989 he was subcontracting as a carpenter, in partnership with his wife, though his work was the sole source of income for the partnership. He was in good health, and was able to undertake all aspects of carpentry work, whether heavy or light.

7. On 15 May 1989 at about 9.30 am he drove his car in Northbourne Avenue to the intersection with London Circuit at Civic, where he turned left, and continued around London Circuit, intending to turn left into Constitution Avenue. As he approached the intersection to his left with Nangari Street he was in the lane closer to the centre of London Circuit. About 50 to 60 metres before the intersection with Nangari Street he activated his left hand indicator and began to move into the left hand lane.

8. At that time the defendant had driven her car in Nangari Street to the intersection with London Circuit. She halted at the intersection in obedience to a give way sign, where she waited for a while for traffic to clear. She intended to turn right into London Circuit. She looked to her right and saw the plaintiff's car approaching, with its left indicator blinking. She thought it was then in the left, or kerbside, lane and travelling slowly. She assumed that it would make a left turn into Nangari Street. She drove off from the Give Way sign, and the front right hand side of her car collided with the front left side of the plaintiff's vehicle.

9. The plaintiff had seen the defendant drive off from the sign, and applied his brakes, but was not able to stop in time to avoid the collision. He estimated his speed at about 50 kilometres an hour when he applied his brakes. The plaintiff said that his speed was certainly under 60, maybe 30 or 40 or even less.

10. At the hearing, evidence was given of conversations between the parties and with a police officer, but I do not regard them or their somewhat vague terms as being significant.

11. I accept that the defendant may have had her vision obscured to some extent by the sun, but I do not regard that as important, either.

12. It is clear that the defendant, halted at a Give Way sign, saw the plaintiff's car approaching at a moderate to slow speed. She assumed that the left hand indicator was signalling the plaintiff's intention to turn left into Nangari Street.

13. He in fact intended it to show that he was changing lanes. He was, in the circumstances, obliged to give that signal.

14. The defendant alleged that the plaintiff allowed his signal to continue to operate after he had finished changing lanes. I am not persuaded that he did so, for any significant distance. Even had he done so, it would not have been unreasonable, as the intersection with Constitution Avenue, where he intended to turn left, was not very far away. There did not seem to me to be anything in the circumstances that should have made him consider the possibility that the defendant would misconstrue his signal. I do not see that he was in any way to blame for the fact that the defendant did misunderstand it. His speed was moderate, he was keeping a proper lookout. The defendant moved from a stationary position. Until she began to move there was nothing to indicate to him that she would do anything other than obey her obligation to stay there until he had passed. When she did begin to move he applied his brakes. It was not his fault that he was then so close that a collision was unavoidable.

15. It was not contended that the defendant did not fail to exercise reasonable care.

16. I am not persuaded that the plaintiff was in any way at fault. There will therefore be judgment for the plaintiff, without any reduction on account of contributory negligence.

17. The plaintiff was shaken up by the collision, but did not suffer any external injury or lose consciousness. He had been wearing a seat belt.

18. After the police investigation he was able to drive his car away. He went first to his wife's hairdressing salon at Deakin, then to Fyshwick, and then to his home at Wanniassa. By then he was feeling sore in the forearms, and discomfort in the chest area. He did not sleep well, and began to notice altered sensation in his hands, especially the right.

19. Although he consulted his general practitioner, Dr Goldrick, about other matters during the two weeks after the accident, he did not mention it to her until 29 May 1989. She recorded his main complaint as being very anxious about driving, and sleeplessness. He was anxious and tearful, and complained of pain in the neck and across his shoulders, and a tight sensation in his knuckles.

20. On examination she found no limitation of movement, and X-rays which she arranged showed minor degenerative changes at C5/6 and C6/7, but no fractures or dislocation. She prescribed physiotherapy and Sinequan, an antidepressant.

21. He underwent nine sessions of physiotherapy, which he told Dr Goldrick on 22 June 1989 was helpful, but he was still very apprehensive about driving. He repeated the same complaint to her on 12 July, so she referred him to Dr Knox, psychiatrist. Dr Goldrick took no further part in his treatment. Dr Knox first saw the plaintiff on 28 September 1989. The plaintiff expressed to him a reluctance to attend doctors and dentists. He had ceased taking the Sinequan. Dr Knox provided supportive counselling and taught him relaxation techniques, in which the plaintiff appeared to co-operate enthusiastically. In March 1990 he thought that the plaintiff might need one or two further consultations, but doubted that regular future treatment would be needed, given the gradual resolution of his psychiatric difficulties. He expected the plaintiff would continue to have some anxiety while driving, though it would resolve to the point of minor inconvenience if there were no further mishap. The plaintiff did not seek further psychiatric help.

22. Mr Keiller, consultant surgeon, examined him for the defendant on 17 January 1990. The pins and needles in the hands had ceased after the physiotherapy. The neck remained sore. He had missed only two days from work. On examination Mr Keiller thought that he was still mildly depressed. There was minor, local tenderness in the paravertebral muscles of the neck, and a slight tightness of rotation to both sides. There was slight restriction of movement at the extreme of extension.

23. Mr Keiller diagnosed a soft tissue injury to the neck and soft tissue injuries to the hands and forearms resulting from the accident. He suggested that the plaintiff should continue with the exercises, and possibly occasional use of a non steroid anti inflammatory drug. He expected symptoms to improve over the next six months to one year.

24. Shortly afterwards, on 8 February 1990 Dr Andrea, surgeon, also examined him for the defendant. The plaintiff gave him much the same history as he had to Dr Keiller. Dr Andrea thought the movements of his neck seemed quite full and painless, and that he had suffered a mild soft tissue injury to the neck which should recover in the relatively near future. He described his emotional reaction as being unusually severe, but expected him to make a complete recovery from the psychiatric upset as well.

25. Those opinions appear to have been a little sanguine. The plaintiff continued to experience pain in the neck. His solicitors had referred him to Dr Robson, neurosurgeon, for an opinion. Dr Robson saw him first on 2 April 1990. He also found no abnormality on physical examination, but to him the X-rays demonstrated obvious disc trouble at C4/5, and less obvious trouble at C5/6. As he described it, "It is as though he has a small puncture in an otherwise good tyre, but inevitably it is rather uncomfortable to drive upon". He thought that the likelihood that, after the length of time since the accident, the pain would spontaneously go away or respond to conservative treatment, was practically nil. He advised further investigations, with a view to surgery. The plaintiff was unwilling to take that course.

26. None of the doctors who examined the plaintiff gave evidence or were cross examined. Dr Robson's report does not give the date of the X-rays that he referred to. Mr Keiller and Dr Andrea both referred to X-rays of May 1989 as showing no significant abnormality. Dr Goldrick had described them as showing minor degenerative changes at C5/6 and C6/7. I simply do not know whether Dr Robson was referring to the same or later X-rays. He did say that there was, at the time he saw the plaintiff, no supervening degenerative change attributable to the injury, which was at an early stage.

27. Later that month, on 24 April 1990, he consulted Dr Sanderson as his general practitioner. His pain was continuing and making him depressed and anxious. Pain was radiating from his neck to his right hand, and disturbing his sleep.

28. Dr Sanderson referred him for a CT scan, which Dr O'Neill performed the same day. He reported that at C5/6 there was a small central disc bulge at C5/6, indenting the thecal sac anteriorly, and at C6/7 osteophytes were causing a little narrowing of the left foramen and indenting the thecal sac. These findings appear to support the view of Dr Robson rather than the opinions of Mr Keiller and Dr Andrea. Dr Sanderson referred the plaintiff to Dr Chandran, neurosurgeon, who saw him on 6 July 1990. On examination there was moderate stiffness in the neck, and some disturbance of sensation at the area of C6 and C7 nerve root distribution. He suggested further studies, but the plaintiff preferred to continue with conservative treatment.

29. His solicitors referred him to Dr Colin Andrews, consultant neurologist, for a medico legal opinion. On 15 June 1990 Dr Andrews noted some restriction of movement at C5/6, mild muscle weakness in the right triceps, and diminished sensation of the right middle finger. He agreed with Dr Robson's diagnosis of a prolapsed disc at C5/6. Further investigations would be needed before surgery could be advised. Dr Chandran saw him again on 6 July 1990, at the request of Dr Sanderson. His opinion was unchanged.

30. Between November 1990 and July 1991 the plaintiff travelled with his wife in Europe and North America. His symptoms were unchanged. On his return he saw Dr Sanderson, who ordered an MRI scan, which was performed on 26 July 1991 by Dr Ho. He reported that all the cervical discs showed evidence of dehydration and possible early degeneration. There was also a mild wedging involving the body of C5. This he thought was the result of a compression injury. There was a slight disc protrusion at C5/6. Dr Sanderson, who saw the plaintiff again on 1 August 1991, expressed the opinion that the crush fracture of C5 and the disc protrusion at C5/6 were the result of the accident, and were causing the symptoms of which the plaintiff was complaining.

31. Dr Andrews performed electrical studies in August 1991, which were normal. He thought that the tests did not demonstrate a cervical disc problem. He thought that the cause was more probably facet joint strain. Need for an operation had not been demonstrated. Nevertheless, he was satisfied that the plaintiff's restrictions were reasonable.

32. The plaintiff had returned to work as a carpenter, but did only selected work, which did not involve overhead work or heavy lifting.

33. On 17 October 1991, Dr Andrea re-examined him for the defendant. He thought the plaintiff was "introspective, morose and depressed". Physical examination failed to reveal anything significant. He did not think that the changes seen on X-ray, which he described as "minor degenerative changes" were caused by the accident or were causing muscular pain in the neck. However, he did not then have the benefit of the report on the MRI scan of July 1990.

34. Mr Keiller re-examined him on 27 November 1991. He appeared much happier to Mr Keiller. Mr Keiller's opinion was that he still had genuine symptoms and some limitation of neck movement, probably due to some damage to the disc at C5/6 and possibly a compression injury to the 5th vertebra. This seems to me to confirm Dr Sanderson's view, and I prefer it to the opinion of Dr Andrea.

35. His solicitors asked Dr Robson to review him. On 1 April 1992 he reported that the plaintiff had learned to live with his discomfort. He remained firm in his opinion that the clinical picture clearly showed injury to one or more cervical discs.

36. On 28 April 1992 Dr Andrews also reviewed him, and expressed his opinion about facet joint strain.

37. Dr Andrea reviewed the plaintiff for the defendant on 18 February 1993. He was not impressed by the MRI scan report. He continued to think that there was a very strong psychological overlay in the plaintiff's symptoms.

38. Mr Keiller saw him the following day, and described him as "slightly anxious, but not grossly depressed". In his opinion the plaintiff still had genuine symptoms, which made life uncomfortable for him, but he was well motivated and continuing to work hard. In fact, his activities seemed if anything, rather more than one would expect.

39. On 25 May 1994 Dr Andrea and Mr Keiller re-examined him.

40. Dr Andrea did not agree with the reports on the CT scan of April 1990 and the MRI scan of July 1991, and did not agree that they showed a bulge of the 5/6 disc or a wedging of C5.

41. Mr Keiller's opinion remained unchanged.

42. The plaintiff's evidence that he worked quite hard, though at a restricted range of activities, and that he suffered pain, was not really challenged. Dr Andrea even commented that, doing the work he described, it was no wonder a man of his age had some discomfort] I find that fact significant, and I agree with Mr Keiller's assessment, rather than that of Dr Andrea.

43. The final medical report was that of Dr Sanderson, who saw him specifically for that purpose on 5 October 1994. His complaints were broadly consistent with his evidence, namely that, more than five years after the accident, he is still moderately inconvenienced by neck pain and loss of sensation in the right hand. He has curtailed his carpentry business to avoid heavier and overhead work as far as possible. When he does work involving flexion or extension of the neck he gets pain, either immediately or soon afterwards. He is irritable and mildly depressed when in pain. In Dr Sanderson's opinion he has a stable but unsatisfactory result from over five years of rehabilitation. He will not improve, but will be prone to early and accelerated degeneration of the cervical spine.

44. On that evidence, in summary, I find that in the accident the plaintiff sustained principally an injury to his neck. Although at first it appeared to be soft tissue injury only, and such as might be expected to largely resolve within a few years, in fact injury was done to the cervical spine, which results in continuing pain and restriction. The plaintiff, quite reasonably, has decided against an operation, and has limited the type of work that he does in order to minimise his discomfort.

45. The pain led to emotional upset, which, however, did not amount to clinical depression. He still gets irritable and sad when pain occurs. His original anxiety about driving has improved, but he no longer enjoys it as he once did. There is no real likelihood that his condition will improve, and it is probable that the degenerative processes in his cervical spine will accelerate, so that he will experience increased discomfort in later life. He is now 49 years old.

46. For his pain and suffering and loss of amenity I award $40,000.00, of which $10,000.00 relates to the future.

47. For interest on the past component on the conventional basis I award $3,500.00.

48. The out of pocket expenses are agreed at $1,862.15. There is no claim for interest on that part of the award.

49. The plaintiff's claim for loss of earnings was strongly contested. His income tax returns were in evidence. They show the following pattern:

Tax year ending Gross takings Net business Net after tax
30 June income
1988 75,158.00 60,864.00 47,800.00 (est)
1989 51,178.00 38,747.00 30,411.00
1990 27,600.00 18,409.00 16,277.00
1991 29,649.00 21,752.00 19,417.00
1992 52,572.00 40,120.00 33,557.00
1993 68,017.00 59,108.00 45,187.00

50. The accident happened in mid-May of 1988. He did not stop working, but lost time either from pain or to obtain treatment or attend doctors for assessment. He seems to have told a number of doctors that during the month or so after the accident he only took off one or two days. His return for the 1988 year is therefore a fair indication of his income earning capacity at that time.

51. The plaintiff kept diaries in which he recorded the times that he was not able to work, needed to attend on doctors, or was restricted in his ability to work. The 1988 diary shows that before the accident the plaintiff did not work as often on weekends as he claimed, in a general way, in his evidence in chief. But there is no reason to think that the diaries themselves are in any way inaccurate.

52. The year ended 30 June 1991 does not give a proper indication of loss, as he went on an overseas trip for 7 months.

53. The pattern of worktimes lost is as follows:

Year ended 30 June
1989 19.5
1990 132
1991 43
1992 96
1993 43

54. A tax return for the year ended 30 June 1994 has not yet been prepared, but the plaintiff's evidence is that his earnings were very much the same as in the previous year.

55. The pattern of reduction in net income and of claimed time lost over the years is as follows, in round figures:

Year ended 30 June Time lost Diminution in net income
1988 2 -
1989 19 17,400.00
1990 132 31,500.00
1991 43 not relevant
1992 96 14,200.00
1993 43 2,600.00
TOTAL $65,702.00

56. The loss claimed in the particulars is restricted to an amount derived by calculating a daily net income based on the earnings in each year, and multiplying that amount by the number of lost days. I note that 55 days loss is claimed for 1993, though my reading of Exhibit B indicates only 43. However, to the end of the 1993 tax year the total amount claimed is $48,938.00. That sum seems reasonably conservative, in the light of the plaintiff's tax records, up to that date.

57. However, the trend disclosed by those same figures tends to indicate a lessening loss since mid-1992, which is consistent with the medical history. I think that the addition of about $10,000.00 to bring the loss up to date would be fair to both parties, giving a loss for the past of $60,000.00, in round figures. The loss has not been incurred evenly through the period, and there was a substantial break in 1991. I allow $20,000.00 in lieu of interest on past economic loss.

58. I do not think that a claim for future economic loss based upon the average weekly loss since the accident could possibly be justified.

59. The plaintiff is skilled at his trade, and able to concentrate on the lighter, but more critical, tasks. That is something he might well have chosen to do in any event. The demonstrated continuing loss is not great. He will be at risk of having to reduce the work he does as he gets older, if the condition of his neck continues to deteriorate.

60. As a matter of judgment I award $30,000.00 for the diminution in his future income earning capacity. The total award is made up as follows:

General Damages 40,000.00
Interest 3,500.00
Out of Pocket Expenses 1,862.00
Past Economic Loss 60,000.00
Interest 20,000.00
Future Economic Loss 30,000.00
155,362.00

61. There is substantial room for at least differences in judgment in most elements of that award. In view of the time since the accident, the plaintiff's age, and his likely future, the sum seems to me appropriate as a global figure. I direct the entry of judgment for the plaintiff for $155,362.00.