Eric Phillip Mcintosh v Wayne John Close, Peter David Maystrovic, New South Wales and Fai Insurances Limited [1996] ACTSC 15 (28 March 1996)

SUPREME COURT OF THE ACT

ERIC PHILLIP MCINTOSH v. WAYNE JOHN CLOSE, PETER DAVID MAYSTROVIC, THE STATE
OF NEW SOUTH WALES and FAI INSURANCES LIMITED
No. SC 337 of 1993
Number of pages - 8

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Sequestrated Disc Injury - Subsequent Exacerbation of Injury - Causation - Future Economic Loss - No Issue of Principle.

Medelin v State Government Insurance Commission [1995] HCA 5; (1995) 127 ALR 180
Younie v Martins (NSW Court of Appeal), Unreported, 21 March 1995

HEARING

CANBERRA, 12-14 March 1996
28:3:1996

Counsel for the Plaintiff: Mr PG Mahony

Instructing Solicitors: Baker Deane and Nutt

Counsel for the Firstnamed Defendant: Mr H Shore

Instructing Solicitors: Hunt and Hunt

Counsel for the Secondnamed Defendant: Mr PR Garling QC
Mr H Shore

Instructing Solicitors: Abbott Tout Harper and Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $100,393.33.

2. The defendants pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY This is a claim for damages for injuries suffered by the plaintiff, Eric Phillip McIntosh arising from a motor vehicle accident on the 3rd January 1991 at Queanbeyan N.S.W. At the time Mr McIntosh was a police officer in the New South Wales Police, and the accident occurred while he was a passenger in a police vehicle, being driven by the first defendant, which was in pursuit of a vehicle driven by the second defendant. When the matter came on for hearing both liability and assessment were in issue, but on the second day of the hearing I was advised by counsel for the first defendant that the question of liability had been conceded, and that the matter would proceed by way of an assessment of damages , subject to a substantial issue between the parties as to causation.

2. While liability for the 3 January 1991 accident is no longer in issue, the principal question for determination in this case is one of causation, namely, did that accident cause damage to the plaintiff's lumbar spine which later manifested itself as a sequestrated disc at the L5 level, requiring surgical intervention and creating ongoing disabilities for the plaintiff, or was this disc injury caused by either of two incidents in 1992 unrelated to the motor vehicle accident. If the latter is the case, it is common ground that the damages which the plaintiff is entitled to claim from the 1991 accident would be very substantially reduced, as the ongoing disability claimed relates overwhelmingly to the sequestrated disc injury and the resulting surgery.

3. The plaintiff was born at Moruya, New South Wales on 12 March 1960, and educated to the Higher School Certificate level at Bowral, leaving school in 1977. He served with the New South Wales Ambulance Service for 8 years from 1979 to 1986 based variously at Goulburn, Harden and Moruya. In 1986 he joined the New South Wales Police Service, and after Police College and service in the eastern suburbs of Sydney, he transferred to duty at Queanbeyan in 1989. He met his wife while serving in Sydney, and they married in September 1989. Mr McIntosh was a keen competitive squash player before joining the Police Service, and he continued to play recreationally, as well as running and taking part in other activities, including gardening and general house and yard work after his marriage.

4. Mr McIntosh, and his wife, who also gave evidence, impressed me as truthful witnesses throughout these proceedings.

5. On the day of the accident Mr McIntosh was on day shift assigned to detective duties. He was at the time part way through qualifying as a detective, a qualification which he later obtained. While day shift usually ends at 5pm the plaintiff was working beyond these hours on a drug operation. He was in an unmarked police vehicle driven by the first defendant, along with another officer. The plaintiff was seated in the right rear seat while the vehicle was on a surveillance operation, and the plaintiff was operating a police radio from this position. While the vehicle was in Henderson Road the plaintiff received a message, a vehicle then approached, and the police vehicle attempted to block its passage. This vehicle, driven by the second defendant, avoided this attempt, and the police vehicle proceeded to turn and give chase. The police vehicle accelerated into the chase, but failed to take a corner at the intersection of Henderson Road and Crest Road. The police vehicle proceeded in a straight line over the gutter and collided with a tree. While the precise speed at the time of the accident is unknown, evidence before me variously describes it as above 60 kilometres per hour and 90 kilometres per hour. Whatever the precise speed, it was clearly an accident involving substantial force.

6. The plaintiff gave evidence that he was operating the radio as the police vehicle gave chase. His recollection is of the vehicle going over the gutter and becoming airborne, then being flung forward with force, restrained by his seat belt, and flung back into his seat with a lot of force. He immediately experienced extreme pain. He was helped out of the vehicle, and lay down in a position which he knew from his time as an ambulance officer to be safe. He was conveyed by ambulance to the Queanbeyan hospital. He was found to have fractures of the left 10th, 11th and 12th ribs at the rear, a renal contusion with haematuria, multiple contusions from the accident and the seat belt, and a haematomata to the left loin and rectus sheath. There is no doubt that these injuries caused considerable pain, and the plaintiff was in hospital for some four days. On discharge he was still in pain, and evidence was given by the plaintiff and his wife that upon discharge he could not bend to get into a car to be driven home, and instead walked, aided, the short distance to his police home, about a block and a half from the Queanbeyan Hospital.

7. The argument about causation focussed extensively on the precise form of the nursing and hospital notes from this admission. Certainly no damage to the lumbar spine was established at the time. Mr McIntosh is recorded by the nurse as complaining of "severe lumbar pain", and a lumbar spine xray was ordered. This detected no spinal abnormality, but it did confirm the broken ribs. There was extensive brusing about this area to the left of the spine. Mr McIntosh was extensively cross examined as to the precise nature and position of pain that he suffered at and after the accident. My impression was that he tried to be frank and honest in his answers at all times. It is the defendant's case that there was no injury to the spine as a result of the accident, and that any pain was limited to the rib areas and the areas of bruising. Mr McIntosh was frank in admitting that for the next 12 months he "put down" the pain to the ribs. I do not find this conclusive of the absence of injury to the spine. Mr McIntosh is not a doctor. He clearly suffered broken ribs near the spine and internal injuries in the same general area. He was told that an xray revealed no damage to the spine, although it was common ground at the hearing that an xray is not conclusive in the case of disc injury, and so it is understandable that he would attribute pain in this area to the diagnosed injury which he undoubtably received as a result of the motor vehicle accident.

8. At the Queanbeyan Hospital he was attended by Dr Bills, his local general practitioner, who has continued to treat Mr McIntosh, and who attended to give evidence at the hearing. In March 1991 Dr Bills reported to the NSW Police Service on Mr McIntosh's injuries, and in this report Dr Bills did not refer to spinal injury. Again, this is consistent with the state of the diagnosed injuries, and is not conclusive.

9. Following his discharge Mr McIntosh spent two weeks in bed, where he required extensive assistance from his wife. Evidence was given of these services in order to establish a claim based on the principle of Griffiths v Kerkemeyer. This is a modest claim both for this period of recuperation, and the later period following spinal surgery, and I will not go in to extensive detail. The Griffiths v Kerkemeyer claim is limited to two specific periods of assistance, is based on wage rates agreed between the parties, and amounts, in total , to a sum just short of $5000. I have no reason to doubt the veracity of the evidence of the plaintiff and his wife in this respect.

10. At about 31 January 1991 Dr Bills again examined the plaintiff, and certified him as fit for light duties. The evidence suggests the plaintiff was keen to return to work, indeed throughout the plaintiff impresses as a person who is motivated to work and remain active to the full extent that his injuries permit. His evidence is that these duties were well short of a full shift, although he sought to gradually extend himself, and he noted that his supervisors and work mates were helpful and understanding of his limitations. He returned to full duties in April 1991, although he remained "guarded" in physical activities. His return to full duties, although of a more sedentary nature than general duties police work, was consistent with the prognosis supplied by Dr Bills on examination on 5 March 1991, where he reported:

"I would not expect major problems in the future, but he could
well have a degree of ongoing disability and limitation of
activities."

11. In early 1991 Mr McIntosh completed his detective training with periods at the Goulburn Acadamy, and on appontment as a detective was assigned to Queanbeyan Detectives, where he continued to work, mostly in fraud areas, and continued to be cautious in his physical activities.

12. In early 1992 there occurred an incident to which the defendant attaches great significance. The precise date is somewhat unclear. The case opened on the assumption that it was January, but during the hearing it appears that it was April. Nothing turns on this. What is clear is that in early 1992 Mr McIntosh was at home in his bed, and he noticed his infant daughter playing with a pedestal fan, in circumstances where it appeared that the fan may fall on her. Mr McIntosh got out of bed, how rapidly is a matter of some dispute, but certainly with some alacrity, and prevented any injury to his daughter. He then noticed pain in his lumbar spine. The case for the defendant is that this incident was the first incident of lumbar spine pain or injury, and I am invited to find that this incident, rather than the motor vehicle accident, caused the spinal injury.

13. Mr McIntosh attended his doctor as a result of this incident, and Dr Bills noted severe localised back pain without sciatica, and marked tenderness, with limited straight leg raising. Dr Bills attributed the symptoms to muscle strain, and prescribed physiotherapy, analgesics and anti inflammatory medication. The episode settled, but in the coming months he experienced some pain in the left testicle and buttock. This was again noted when he moved a garbage bin in June, and as a result he attended Dr Bills. There was evidence that a member of the Queanbeyan Police at about this time had been diagnosed with advanced testicular cancer, so it is understandable that these symptoms would compel Mr McIntosh to see his doctor. After excluding any testicular pathology, Dr Bills suspected spinal injury, and ordered a CT scan, which revealed a right L5S1 disc herniation, with a sequestrated disc fragment on the left. Dr Bills arranged for the plaintiff to be seen by Dr Newcombe, who urgently admitted him to Woden Valley Hospital on 17 June, where on 18 June a L5/S1 discectomy was performed. This caused the plaintiff considerable pain and distress, and he was hospitalised for some 6 days, and remained at home in bed for a further week or two, during which time his wife again provided considerable domestic assistance of the Griffiths v Kerkemeyer variety.

14. He returned to work, on light duties, on 3 August 1992, and returned to full duties in November 1992. His recovery from the surgery was successful, but he continues to suffer pain in his back. He contined, and continues, to suffer intermittent back pain. Dr Newcombe, who performed the operation in 1992, has reviewed the patient in a report of 5 September 1994, and states:

"It was my opinion that his continuing pain related to his injury.
L5/S1 disc prolapse and subsequent discectomy caused some
narrowing of the intervertebral disc spage and strain on the
lumbar posterior intervertebral or facet joints. He suffers from
such continuing pain. While no specific treatment has yet been
required, it is possible that steroid and local anaesthetic
injections of the facet joints could be required. In the long term
if pain of this kind persisted and was of sufficient degree, then
a stabilisation procedure, such as posterior lumbar interbody
fusion could be done."

15. Mr McIntosh gave evidence that he was most reluctant to undertake any further radical treatment of this nature, a view supported by his treating general practitioner.

16. Mr Mcintosh continued with the Queanbeyan detectives until April 1995, when he resigned from the NSW Police Service to take up employment with the Commonwealth Public Service as an inspector in the Therapeutic Goods Administration. The plaintiff was frank in giving his reasons. He wanted to remain in this area, and would otherwise have faced a transfer away from Queanbeyan, the new position was better paid than his police job, and offered more security. He also said that he was always concerned that his injury might limit his future as a serving police officer. I have no doubt that these were all reasons behind his move, a move which the first defendant has also made. Mr McIntosh has done well in this position. While originally appointed on contract at the Senior Officer Grade C position, he has successfully applied for the permanant position, and at the date of trial had been orally advised that he had been successful, and he is currently Acting as the Senior Investigator (although this position is at the same salary level). He admitted, and I see this as quite appropriate, that his ambition would be for promotion to the next level as Chief Investigator, and that he looks forward to a career in the Commonwealth Public Service as an Investigator, or as a Manager in this field.

17. On the question of whether the motor vehicle accident caused the back problems of which the plaintiff now complains, I have before me a range of written medical opinions, and have had the advantage of seeing cross examination of Drs Bills and Gavaghan, and hearing telephone evidence and cross examination from Dr Thompson. Of all the medical evidence before me, it is only Dr Thompson who is firmly of the view that there is no connection between the motor vehicle accident and the back injury. It is significant that a report of 2 December 1994 obtained for the defendant from Dr G Griffith of Canberra Medico Legal Consultants, seems to favour the view that the motor vehicle accident was indeed the principle cause of the injury. Dr Griffith says:

"In the initial injury, there is no doubt that he suffered a major
acceleration ( from the car striking the tree ) /deceleration
(from restraint by the seat belt) injury to the soft tissues and
ribs, and which almost certainly precipitated the conditions
described. It is likely that he would also have suffered some soft
tissue injury to both cervical and lumbar spines."

18. This has certainly been the view of Dr Bills since at least June 1992. In his report to Dr Newcombe following the CT scan abnormalities Dr Bills said:

"He was involved in a motor vehicle accident (high speed chase) on
3.1.91 resulting in his admission to Queanbeyan District Hospital.
At the time I may have missed an associated back injury, but
certainly he had a lot of (l) lumbar pain in association with a
large haematoma, and..." the previously described injuries.

19. Dr Newcombe has supported the view that the accident was the primary cause, saying in a report of 18 March 1993:

"On the balance of probabilities the lumbar disc herniation
process commenced at the time of the motor vehicle accident of
3.1.91"

20. Dr Gavaghan, who appeared before me, strongly supports this view, stressing the nature of the forces required to cause disc injury, and ascribing this to the motor vehicle accident. I note that Dr Thompson has made it quite clear in oral evidence that he "frankly did not believe the plaintiff". Having observed the plaintiff I am of a different view. While I have no reason to doubt Dr Thompson as a witness of truth, I find that, on the balance of probabilities and having regard to the totality of the medical evidence, the motor vehicle accident either caused the disc abnormality, or sufficiently rendered the disc abnormal to predispose Mr McIntosh to ultimate prolapse. As Dr Griffith, an expert who reported to the defendant, put it in his report:

"The situation is not clear cut. It must be considered on the
basis of probability versus possibility."

21. The plaintiff has placed before me sufficient medical evidence to satisfy me, on the balance of probabilities, that the accident has caused the injuries which are the subject of this claim. In reaching this conclusion I have not had to draw any inferences, which would be open to me to draw, from the non production by the defendant of certain other medical reports which the defendant required the plaintiff to undergo.

22. Accepting as I do that the plaintiff's spinal injury is legally attributable to the motor vehicle accident for which the defendants admit liability, I assess general damages on the footing of the impact this injury and its aftermath, including spinal injury, has had on a previously fit and active young man starting a young family. I assess general damages in the sum of $50,000, for which $30,000 is attributable to past loss attracting interest of $3,115.07.

23. There is a claim based on Griffiths v Kerkemeyer for services provided by the plaintiff's wife. While particularised wage rates have been agreed, there was some discrepency between the oral evidence and the particulars in this respect. Nevertheless, accepting that the spinal injuries are attributable to the accident, there are two clear periods where this head of damages is payable. I access such damages in the sum of $5,000.

24. Counsel have agreed to the sum of $7,297.97 for out of pocket expenses, which I accept. Counsel have also agreed on, and I accept, a claim of $4,980.29 based on past economic loss up to the point at which Mr McIntosh left the NSW Police Service.

24A. On the question of future medical expenses, this is not a case where any precision can be reached. While the statement of claim particularised a precise sum for a future operation and monthly general practitioner and physiotherapy treatment, this was not sustainable on the evidence. Counsel for the plaintiff acknowledged that the operation was speculative and that only a proportion of this cost should be awarded, and that in fact there has been no treatment over the last 12 months. He urged me to adopt a global approach to setting a contingency for future medical expenses. Adopting that approach and as matter of broad discretion I award the sum of $5,000 for future medical expenses.

25. On the question of future economic loss, I find that the plaintiff in 1995 decided for a variety of reasons, including salary, security and ability to settle in this district, to resign from the NSW Police Service and take up his present employment with the Commonwealth. I find that this employment is in fact remunerated at a higher level than his previous employment and that with his eligibility for a further increment shortly, his expectations that this career move would be more financially rewarding has in fact been met. I note that he is presently acting as the Senior Investigator (although this carries with it no additional remuneration) and that he quite properly hopes to advance his career to the section head level or beyond. I was invited to take notice of the fact that in the more senior levels of the Commonwealth Public Service, tertiary qualifications are now normally considered appropriate. While this may well be the case, it is just as much the case for promotion to commissioned ranks in contemporary police services. I find that Mr McIntosh has not suffered any actual financial loss or reduction in promotion prospects because of his decision, along with the first defendant, to leave the NSW Police Service and further his career as an investigator in the Commonwealth Public Service.

26. But of course the law does not require proof of actual financial loss. The question is not whether the plaintiff is now earning less, but whether, as a result of the accident, the plaintiff has been rendered less capable of earning income; Medelin v State Government Insurance Commission [1995] HCA 5; (1995) 127 ALR 180. The law in this area was well summarised by Priestley JA in Younie v Martins (NSW Court of Appeal), Unreported, 21 March 1995, where His Honour said:

"Where a plaintiff demonstrates some loss of earning capacity
lasting past the date of trial then notwithstanding difficulty in
assessing an amount for future economic loss, courts are bound to
award something for future economic loss unless, on the material
before the court, it can be seen very confidently that
notwithstanding the loss of capacity the plaintiff will not in
fact suffer any damage of the future economic kind because of that
lack of capacity".

27. This much has not been established in this case. While Mr McIntosh is in fact now on a higher salary than he was earning as a police officer, and while he does appear to have prospects for promotion, the fact remains that he will for the rest of his working life be a man with a not insignificant continuing back disability competing in a workforce with persons with no such disability. While his present employment is, in many ways, ideal, combining the ability to utilise his investigatory skills learned as a police officer and detective with a relatively ordered and sedentary workplace, other investigatory roles could well involve much greater fieldwork, which would present real problems. I award a contingency of $25,000 for future economic loss.

28. I award judgment in the sum of $100,393.33 to the plaintiff with costs.