Henry Andrew Evans v Vacc Insurance Company [1996] ACTSC 14 (28 March 1996)

SUPREME COURT OF THE ACT

HENRY ANDREW EVANS v. VACC INSURANCE COMPANY
No. SC 500 OF 1993
Number of pages - 7
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Back and Knee Injuries - Post Traumatic Stress Disorder - Capacity to work - No issue of Principle

HEARING

CANBERRA, 11 and 12 March 1996
28:3:1996

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr M Williams

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $605,664.62.

2. The Defendant pay the Plaintiff's costs.

DECISION

MASTER T CONNOLLY This is a claim for damages flowing from a fatal motor vehicle accident on the Federal Highway near Lake George on 31 August 1992 when the plaintiff, Henry Andrew Evans, then employed as a truck driver with the Australian Capital Territory Electricity and Water Authority (herein ACTEW), collided with an oncoming vehicle which had veered across the road and directly into the path of Mr. Evans' oncoming ACTEW truck. Three persons lost their lives in this incident.

2. Liability is not in issue in this case. Counsel for both plaintiff and defendant have, rightly, described the accident on 31 August as "horrific". Mr. Evans' duties involved driving treated sewage sludge to farms in the rural areas surrounding Canberra, where the material is used as a fertilizer. The loads were heavy, and he would use either a semi trailer, or a large 22 ton truck. The morning of the accident was rainy, and on this day Mr. Evans elected to carry his load, of some 12 tons, in the truck rather than the semi trailer, because the truck was, in his judgment, safer in wet conditions.

3. The plaintiff was driving along the Federal Highway destined for a rural property near Collector, just beyond Lake George. As he proceeded north along the highway he saw a line of traffic approaching in the opposite lane. He observed a red car in the middle of this line of oncoming traffic weave out of its lane, correct, and then "within a split moment" veer out and directly in front of, and then under his heavy truck. Mr. Evans braked hard, and struggled to direct his truck towards the side of the road, away from the stream of oncoming traffic. His recollection is of the sound of the impact, screams, and, most graphically, of a woman coming through the windscreen of the crash vehicle, striking his windscreen directly in front of his eyes, and then sliding down and under the wheels of his heavy truck. He saw the woman crushed under the wheels of his truck through his side windscreen.The woman was killed as a result of the accident. Mr. Evans' next recollection is of a bystander yelling to him that his truck was on fire, struggling and wrenching to extricate himself from the truck, where his leg was stuck behind the steering column, and seeing blood and gore as he emerged from the vehicle.

4. The truck was not on fire (steam from the collision having caused the alarm), and Mr. Evans recalls being "numb, cold and shaking" by the scene. He was concerned to check that the truck brakes were safely applied, and returned to the vehicle to verify this. Various emergency services vehicles attended the scene, and Mr. Evans was assisted first by a Telecom employee and then by a medical practitioner who stopped to render assistance. Attending police did not want to interview him given his condition of shock, and after some two hours at the scene two ACTEW colleagues attended and conveyed him back to Canberra, and to a counselling session. He was then put up at a friend's place for a week.

5. It is accepted that, in the immediate aftermath of the accident, Mr. Evans was incapacitated both by physical injuries from the crash, and a degree of psychological injury as a result of being involved in an accident in which lives were lost, and the particular trauma of witnessing one victim thrown against the windscreen and then under the truck. The central issue for me to decide in this case is whether, or to what extent, these injuries persist so that Mr. Evans continues to be unfit for work. The medical evidence before me comprises evidence from Dr Berenson, Mr. Evans' treating General Practitioner for over 20 years, and Dr Lee, Mr. Evans' treating psychiatrist, who has seen Mr. Evans regularly since the accident, both of whom opine that Mr. Evans is, as a result of the accident, unfit for any work, and Dr Champion, a Psychiatrist who saw Mr. Evans once in Sydney and who is of the view that Mr. Evans is fit for work. Dr Champion offered the opinion that Drs Berenson and Lee are in error in their assessment because of a phenomenon of "therapeutic alliance' in which a Doctor who has had a long term treatment relationship with an accident victim will unduly exaggerate the symptoms, or at least not critically examine a patient to look beyond the claimed symptoms. Drs Berenson and Lee maintain that their long history with Mr. Evans is the basis for their considered medical opinions. In assessing this conflict in medical evidence, I find some significance in the fact that Dr Berenson has known and treated Mr. Evans for many years before the accident.

6. In order to properly consider the consequences of Mr. Evans' disabilities, it is necessary to record something of his background. The plaintiff was born at Goulbourn in 1950, and spent his early years with his family, which grew to twelve children, on various rural properties in the general district. He attended school in Goulburn from the ages of 7 to 13, without success as a scholar. His memories are of attending either by horse or bus, enjoying sports, but having great difficulty in reading and writing. When he left school at age 13 he could not properly read or write, and obtained employment as a rural labourer.

7. Mr. Evans may not have been a scholar, but he was a worker, and had been continually in employment since leaving school at age 13. His early years were spent on properties in the Goulburn district driving tractors, operating plant, and , in later years, working with horses. On the death of his father in about 1972 he came to Canberra, obtaining work at a Fyshwick airconditioning business as a labourer, engaged in the heavy work of installing airconditioning ducting and units. He then worked for some years for a local home building company as a leading hand foreman, cleaning up sites, controlling labourers and buying materials. This company had an interest in a local horse stud, and Mr. Evans spent some time there. Horses have loomed large in Mr. Evans' life, and his brother continues in this industry, running a trail riding business on the South Coast.

8. In 1978 Mr. Evans joined the Commonwealth Public Service in the old Department of Housing as a boiler attendant, and remained with this Department for some years, eventually being based at the Lower Molonglo Water Quality Control Plant, Canberra's sewage works, as a driver. He was transferred to the employ of ACTEW as part of the establishment of the Australian Capital Territory as a self governing body.

9. Mr. Evans enjoyed generally good health in his working life prior to the accident, save a wrist injury falling from a horse around 1975, and a more serious illness which required the removal of a Hydatid cyst from the liver, leaving a scar on his torso. This operation was successful, and he fully recovered. Mr. Evans married in 1970, and has four children. This marriage broke down in 1991 prior to the accident, but for the last twelve months his 14 year old daughter has been living with him in his care.

10. As a result of the accident Mr. Evans suffered a range of physical injuries, as well as psychological difficulties which I will come to later. The physical injuries have been neatly summarized in a report of Dr Millar, tendered as part of Exhibit 4, Defendant's medical reports. Dr Millar records that he suffered:
1. Bruising over most of the body

2. A strain to the low back.
3. A fractured sternum.
4. Damage to the right leg in the region of the knee.
5. An injury to the right wrist.
6. A strain to the neck.

His main complaints now of ongoing disability from his physical injuries relate to the knee, which had an arthroscopy performed by Dr Cairns in May 1993, and his back. His treating General Practitioner, Dr Berenson, maintains that he continues to suffer from back pain, with acute tenderness in the T6 and L3 region of his spine. Dr McGrath, who examined the plaintiff for the defendant in May 1995, and whose report of 11 May 1995 was before me as part of Exhibit 4, records that:

"My examination suggests that painful injuries continue to exist
in the right knee and sternum with a possible injury about the
right shoulder."

11. Dr McGrath was less convinced about ongoing back injury. Dr Berenson was adamant that the physical injuries were an effective barrier to a return to work, and noted that a proposal by ACTEW to return Mr. Evans to light duties as a trades assistant would have been difficult due to the need to carry tools and the large and steep nature of the worksite at the Lower Molonglo Treatment Works.

12. Evidence was before the Court, both in written reports and in oral evidence from persons involved in rehabilitation, that Mr. Evans was reluctant to return to work, and it was strongly urged that this should count against him in any assessment of damages, on the principle, soundly based in law, that a plaintiff has a duty to mitigate his loss. There is no doubt that Mr. Evans did agree to a rehabilitation plan, subject to the agreement of his treating doctors. That plan was before me as Exhibit F. While there is disagreement between the experts as to whether Mr. Evans' treating doctors should have urged him to return to work, the clear evidence is that they did not, and to this extent Mr. Evans has acted cautiously, but in accordance with the advice of his doctors. I place some emphasis here again on the fact that Dr Berenson has been treating Mr. Evans for over 20 years. Mr. Evans clearly trusts the judgment of his longstanding family General Practitioner.

13. While it is in no way conclusive, I also have regard to the evidence before me of COMCARE's decision to review its earlier determination of 5 September 1994 that Mr. Evans should return to work, by its determination of 11 April 1995. The COMCARE Delegate there had regard to a range of medical reports, which were also before the court, and concluded that Mr. Evans was at that time incapacitated for work. He had particular regard to a report of Dr Feltham from the Australian Government Health Service of 31 January 1995 that:

"I reviewed Mr. Evans today. Having examined him, I am quite
convinced that he is currently unfit for any work on the grounds
of continued ill health, related to an anxiety/stress related
condition and also to continuing back with (R) lower limb pains."

14. While Dr Feltham was not called for oral examination, I find this report from a Commonwealth Medical Officer, a report which is in a sense against the interest of the agency, in marked contrast to the report just 9 days later from Dr Champion.

15. Dr Champion examined the plaintiff for the defendant on 9 February. Dr Champion formed the strong view that Mr. Evans was exaggerating the symptoms of post traumatic stress disorder, although he acknowledges the existence of the condition in the plaintiff. Dr Champion's view is that Mr. Evans:

"seems motivated toward compensated retirement rather than
rehabilitation in any form. It is my view that it is this
motivation rather than the continuation of symptoms of post
traumatic stress disorder that forms the basis of his present
complaints".

16. Dr Champion seemed to find it significant, both in his written report and in oral evidence, that when asked on arrival in his rooms in Mosman whether he had enjoyed his trip, Mr. Evans agreed that he had. Dr Champion seemed to think this an inappropriate response, saying that an air trip to Sydney and then through the Sydney traffic and harbour tunnel by taxi is one that "many without psychological trauma find daunting". I do not find this at all convincing as a basis for concluding, as Dr Champion has, that Mr. Evans is not being truthful in presenting a picture of his complaints.

17. On the balance of the medical evidence before me, both in written form and having had the benefit of seeing cross examination of various experts, I conclude that Mr. Evans does continue to suffer in a debilitating way from the effects of this accident. I conclude that the extent of his physical and psychological injuries make it highly unlikely that he will again find remunerative employment. There is evidence that he intends to move to the south coast for a period of six months after this case is concluded, and counsel for the defendant invited me to conclude that he intends to work on his brother's farm and horse riding business. While he concedes that he will spend time with his brother, there is no evidence that he is able to, or intends to, engage in remunerative employment. Considerable time was spent in video evidence of the plaintiff seated at a bar stool, in which he became involved in a conversation with a private investigator. While during this conversation he clearly "boosted" the advantages of vacationing on the south coast in general and at his brother's business in particular, I do not conclude that this shows him capable of any remunerative employment as a sort of Canberra agent for this business. My observations of the video material in this case did not alter my conclusions drawn from the medical evidence and my impressions of the plaintiff under cross examination. His movements did not display anything inconsistent with his stated condition. If the high water mark of the defence video material was the plaintiff taking about six shuffling steps towards a run while in the middle of crossing what the plaintiff described as a dangerous corner where oncoming vehicles are obscured, it was not conclusive of anything.

18. I accept the plaintiff's evidence that, were it not for this accident, he would have continued in remunerative employment with ACTEW until retirement. This is certainly consistent with his past history as a hard worker, who has been in the workforce since the age of 13.

19. I accept the evidence before me that, based on Mr Evans' previous earnings, including over-time, he has suffered a past economic loss (after tax) of $99,027. His future economic loss, taking into account his former employer's calculations on regular over-time and allowances and using a discount rate of 3% per annum, is calculated at $452,785. There is a Fox v Wood component to the date of hearing of $27,301.

20. It is appropriate to make some allowance for contingencies, although, as I have said, I do not find that the chances of Mr Evans finding remunerative employment after this hearing are substantial. Nevertheless, accepting medical evidence from Drs Champion and Lee, it is possible that there may be some improvement in Mr Evans' condition after the stress of this case is resolved, which would make some gainful activity possible. Adopting the normal guide of 15%, I award the sum of $384,867.25 for future economic loss, together with $99,027 for past loss. As the past loss component is based on payments actually received by the plaintiff since the accident, which are repayable, it will attract no interest. I award the sum of $27,301 for the Fox v Wood component.

21. On the question of general damages, it is clear that Mr Evans has suffered both physically and psychologically from this motor vehicle accident. He will continue to suffer chronic pain and significant disruption and limitations to his lifestyle for the remainder of his life. I award the sum of $75,000 for general damages, for which I attribute $50,000 for past loss, attracting interest of $3,528.77.

22. Out of pocket expenses are claimed, in the Statement of Claim, at $10,940.60, having been paid by Comcare, and I accept this figure. While claims for substantial ongoing out of pocket expenses have been made, based on monthly visits to Dr Berenson and quarterly visits to Dr Lee, Dr Lee indicated that there may be no further need to see him, although Dr Berenson indicated that he expects to see Mr Evans continuously on about a monthly basis, and that some future psychiatric treatment would be appropriate. He would expect Mr Evans to see Dr Lee in the future and to need physiotherapy from time to time as his back played up. While at the opening of the hearing Counsel for the plaintiff obtained leave to amend the Statement of Particulars to claim $270 per month for ongoing physiotherapy, I note that this has only just resumed, with the last physiotherapy occurring in 1993. I accept that there will be a need for regular visits to a general practitioner, with some need for psychiatric or psychotherapy intervention from time to time; but that these will be intermittent. There will be an ongoing need for Prosac and Panadeine, which will vary as Mr Evans' condition fluctuates. This does not present a clear picture of Mr Evans' future out of pocket expenses, but it is the best that I can do on the material before me. I award the sum of $5,000 for future out of pocket expenses.

23. I direct judgment for the plaintiff in the sum of $605,664.62 plus costs.