Henry Reid v Rocco Onorato [1996] ACTSC 39 (7 May 1996)

SUPREME COURT OF THE ACT

HENRY REID v. ROCCO ONORATO
No. SC509 of 1993
Number of pages - 20
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Negligence - personal injury - motor vehicle accident - vehicle changing lanes unexpectedly - negligence - no contributory negligence - no point of principle.

Damages - assessment - pre-existing disabilities - exacerbation - effect thereof ceasing before trial - no point of principle.

HEARING

CANBERRA, 19-21 February 1996
7:5:1996

Counsel for the Plaintiff: Mr R Mildren

Instructing solicitors: Romano and Co

Counsel for the Defendant: Mr C Leahy

Instructing solicitors: Abbott Tout Harper and Blain

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $137,031.85.

DECISION

HIGGINS J The plaintiff was born in Scotland on 13 August 1930. He left school in 1945. He started an apprenticeship as a butcher but switched to plumbing. After qualifying as a plumber he was employed in that trade until he came to Australia in 1954.

2. He carried on his trade as a plumber for various employers as well as on his own account. He seems to have been in fairly constant employment.

3. In 1985 he commenced work as a plumber and gasfitter with the Australian Gaslight Company (AGL).

4. On 23 June 1986 there was the first of a series of motor vehicle accidents involving the plaintiff.

5. The circumstances of that accident are not particularly relevant. However, the plaintiff suffered a colon injury, a fracture to the right knee and leg and a whiplash. These injuries were quite serious. The plaintiff was off work for five months. He attempted a return to his former duties. That was not successful and he was transferred to clerical work at the AGL base. This involved relaying instructions by radio to field workers. He was then transferred to light duties. That involved performance of gas meter readings, turning the gas supply on or off and explaining the operation of appliances to customers. Those duties involved driving about 200km per day and making 20 to 40 calls at, mainly, domestic premises.

6. Up to the end of 1988, the plaintiff says that he carried out these duties successfully. However, he did have continuing pain with his knee, neck and back. He stated that, although he needed to take analgesics to control pain, he had no time off work.

7. It was common ground that the injuries he sustained in 1986 permanently disabled the plaintiff from the full-time performance of his previous duties.

8. Then, on 12 January 1989, the plaintiff suffered injury in another motor vehicle accident. He says that this was relatively minor. However, he was shaken and suffered exacerbation of back and neck pain. He took no time off work. He saw his general practitioner. He experienced some knee pain as a result of this accident but says that an injection fixed it up.

9. There is some dispute, based on AGL's records, as to the accuracy of the plaintiff's assertion that he did not lose time from work in the 12 months or so before his third accident.

10. The third accident is that now sued on. On 23 June 1989 the plaintiff was driving an AGL vehicle near Mawson on Yamba Drive. He was driving in a southerly direction in the left lane of two south bound lanes. There was no vehicle immediately in front of him. There were four cars and a truck travelling south in the right hand lane a little ahead of him.

11. He observed the truck, which was, as it now appears, being driven by the defendant, veer left as if to enter the left lane. If it had continued to do so there would have been a risk of collision with the plaintiff's vehicle. However, it pulled back to the right. The plaintiff concluded that the defendant had seen his vehicle and decided not to change lanes. He was wrong. The defendant suddenly veered again to his left forcing the plaintiff to swerve left to avoid a collision. He did not have time to brake. A collision with the truck was avoided. However, the plaintiff's vehicle struck the curb and overturned.

12. Something in the cabin struck the plaintiff on the head. He was bleeding from the head and feeling nauseous and shocked when he was pulled out of his vehicle. He lay down and awaited the ambulance.

13. He was taken by ambulance to Woden Valley Hospital. His head wound was sutured. He was checked for fractures.

14. It was suggested to the plaintiff that his account of the accident was not correct. It was suggested that he had no injury, was not taken to hospital and had carelessly failed to notice the defendant changing lanes.

15. There was, it is true, no record of the plaintiff's attendance at Woden Valley Hospital. However, the defendant was not called to give evidence. There was no record taken by Constable Orr, who attended the accident scene, which would have supported a view that the plaintiff had failed to take due care. The defendant's statement to Constable Orr (exhibit 5) following the accident was not particularly exculpatory. Constable Orr issued an infringement notice to the defendant for driving without due care and attention.

16. The only injury noted by Constable Orr to any participant in the incident was to the plaintiff. The note reads, "minor lacerations to head". Constable Orr noted that he later attended at Woden Valley Hospital. He could not offer any explanation for that other than the presence there of the plaintiff from whom he would, in accordance with standard practice, have needed to take particulars.

17. The report of injury made by the plaintiff on 23 June 1989 at the request of his employer notes that he was initially treated at Woden Valley Hospital. The suggestion that he was not injured and not treated for that injury at Woden Valley Hospital is clearly without foundation.

18. I am satisfied that the plaintiff's account of the accident was correct. It was not contradicted. It follows that the defendant was negligent in changing lanes without due care and attention and without any proper indication of intention so to do.

19. Given the previous indication of intention to return to and remain in the right lane on the part of the defendant, I find no contributory negligence on the part of the plaintiff.

Damages
20. Following the accident, the plaintiff returned to the AGL depot. His head was throbbing with pain. Pain in the neck and right knee was exacerbated.

21. Those disabilities did not improve over the weekend. A dull ache appeared in the plaintiff's lower back.

22. On 26 June 1989 the plaintiff consulted Dr Reid concerning the effects of the accident of 23 June 1989. He was told to take four weeks off work, referred for x-rays and prescribed painkillers.

23. Whereas he had not taken many painkillers in the preceding six months, they became, he said, a daily routine after the accident.

24. The back pain, in particular, was, he said, so much worse that, whereas before the 1989 accident he could sit upright to get out of bed in the morning, after this accident he could only slide out or roll over.

25. He attended physiotherapy at Narrabundah which offered temporary relief. That lasted for three months with weekly attendances over a couple of hours.

26. Three cortisone injections in the right knee caused improvement in it for four months. The knee, he said, was different from before. It became both more troublesome and unpredictable. Previously, although it had been painful, it would not collapse.

27. It did not collapse very often, he said, perhaps monthly.

28. In October 1989, AGL terminated the plaintiff's employment. The circumstances leading to that termination were seriously in contest in these proceedings.

29. The plaintiff considered that he was not fit enough to return to his previous light duties although he had persevered for a time. He had hoped to serve 10 years with AGL, collect his superannuation and return to Scotland. That would, in fact, have occurred in 1995 but for his retrenchment in 1989.

30. Since his retrenchment, the plaintiff claimed to have done only a few 'charity' plumbing jobs on water taps or cisterns. He would usually be paid 'petrol money' plus cost of parts and, sometimes, $10.00 or $25.00.

31. From time to time he helped out a friend who had a steel fabrication business, but that was unpaid.

32. He feels his neck problems are now worse and more frequent. He does very little driving. He gets a 'red hot poker' sensation when driving more than one hour, at the back of the neck.

33. He conceded that he had pain in the neck before the 1989 accident but claimed the pain was now more sharp.

34. The low back pain was also worse since that accident. The back and neck were now equally troublesome. He cannot now lift anything heavy. Whereas he could play a round of golf before the 1989 accident, he can now play only half a round.

35. The issue as to the plaintiff's termination from AGL involved a finding of guilt recorded against him in November 1991 in the ACT Magistrates Court upon a charge concerning the theft of a gas meter from AGL. The charge, although found proved, was dismissed pursuant to s556A Crimes Act 1900 (ACT) subject to the plaintiff entering into a recognisance to be of good behaviour for two years.

36. It was suggested to the plaintiff that his employment, but for its termination on other grounds, would have been terminated as a result of that theft. The plaintiff did not concede this. He denied that he had ceased active duty with AGL simply to avoid being dismissed or to lend artificial credence to a claim for loss of wages.

37. Mr Stephen Rush, customer services manager with AGL 1976-92, had supervised the plaintiff. He gave evidence of what he perceived to be greater unreliability in performance from the plaintiff as a result of injuries suffered in the 1986 accident and before both the June 1989 and, possibly, the January 1989 accident.

38. He further deposed that he became aware of the alleged theft of a gas meter by the plaintiff as a result of a staff investigation. The date he became aware of the allegation is not clear. He was aware that, in November 1991, the plaintiff pleaded guilty to a charge of theft. Had the plaintiff then been employed by AGL, a report would have been forwarded to 'higher authority'. He would, he considered, have recommended the plaintiff's dismissal.

39. The 'higher authority' was Mr John Dahl, Canberra manager of AGL at the relevant time. He recalled that the plaintiff had left AGL's employ in 1989. He recalled that there were 'legal problems' to do with 'carrying out work without authority' preceding that event. Had he been aware that the plaintiff had pleaded guilty to the theft of an AGL gas meter, he would, he stated, have dismissed him had the plaintiff been then employed by AGL.

40. In cross-examination he stated that he was aware that the plaintiff had done some five jobs in his own time whilst on disability leave following the June 1989 accident. Three of those jobs had 'paper work' put through AGL. There had been, he thought, one meter unaccounted for in relation to one of those jobs. He could not recall the circumstances giving rise to that recollection on his part.

41. He did agree that he was aware of another employee, a Union representative, who had stolen gas but had not been dismissed despite his guilt being established.

42. That example was, apparently, intended to suggest that the plaintiff's dismissal, had he been employed by AGL in November 1991, would not have been inevitable.

43. The only documentary evidence concerning the plaintiff's retrenchment was a letter signed by Mr Dahl on 25 October 1989 dismissing the plaintiff. There was additionally, a statement to police by the plaintiff in relation to the alleged theft.

44. At the time the letter of dismissal was written, the plaintiff had been on compensation leave since late June or early July 1989.

45. The letter, so far as it related to dismissal, stated,
Recently we were advised that you completed a certificate of

compliance with AGL Canberra dated 26 September 1989 whilst certified
by Dr Reid medically unfit to work in your pre injury position as
Serviceman Grade 3.
I believe this behaviour to be in sharp contrast to what your medical
certificate states, and cannot understand how you can work given that
you remain totally incapacitated.
As you are aware, AGL Canberra formally offered you an opportunity to
participate in its Employee Rehabilitation Programme, despite the fact
that our insurer MMI declined liability for your recent accident in
June 1989.
AGL certainly expresses the desire to see you return to your former
duties as a Serviceman, but it would appear that from your recent
refusal to accept rehabilitation and behaviour whilst unfit to work,
that you have no desire to continue in the service of AGL Canberra.

46. Whether the concern was the unofficial or unauthorised certification of meters supplied by AGL or the fact that the plaintiff was possibly engaging in paid employment whilst on compensation leave is not clear. Nor is it clear what role doubt as to the genuineness of the plaintiff's claimed level of disability, or failure to mitigate it, played in his dismissal.

47. AGL did not seem to construe the use of gas meters by the plaintiff at that time, as 'theft'.

48. The plaintiff's statement to police was tendered by the defendant. It is admittedly self-serving. He stated, however, in a letter addressed to the investigating police officer dated 5 March 1991,

The gas installation at (address) is one of five gas jobs by me in
my own time for no remuneration whatsoever to me while I worked for the
gas coy.
The first three jobs were approved, paper work for (address) was
submitted and nothing more was heard until this enquiry. The fifth job
was declared illegal and after receiving a kangaroo court, was sacked
by the gas coy.

49. I am left in a situation where I have little idea as to what the facts were which constituted the alleged 'theft'. I do not know what the Magistrate was told. I am not confident that it was, necessarily, an accurate version of what took place.

50. I am not confident that, but for the fact that between July and October 1989 the plaintiff was certified totally unfit for work, there would have been a move to dismiss the plaintiff before he had reached his intended retirement date. I am not persuaded that the performance of the work 'on the side' done by the plaintiff and the discrepancy, whatever it was, concerning the gas meter, would have led to the plaintiff's dismissal.

51. The evidence of Mr Rush and Mr Dahl, whilst no doubt their current view is honestly held, can hardly be taken to reflect what their reaction would have been in September or October 1989 had they heard the plaintiff's explanation, assuming he was as fit for work as he had been before the June 1989 accident.

52. On the balance of probabilities, I consider the letter of October 1989 more accurately reflects the true reason for the plaintiff's dismissal. But for being off work due to his injuries, I am satisfied that there would not have been a termination of the plaintiff's employment before 1995, provided the plaintiff had remained fit for the light duties he was performing up until the accident in June 1989.

53. The defendant, however, suggested that the disabilities the plaintiff has suffered from since June 1989 were not really caused by the third accident. A question was also raised as to whether his post-third accident condition is really as bad as he claims.

54. In cross-examination, the plaintiff conceded that there was a record that, in August 1988, he had consulted Dr Reid because his right knee had given way. In his evidence in chief, he had attributed this disability solely to the third accident. He claimed to have no recollection of such a consultation with Dr Reid.

55. It was further suggested that he had received three injections in the right knee, September 1987, January 1988 and August 1988 from Dr Reid. He agreed that this was 'possible'.

56. As to low back pain, it was also suggested that in April 1989, Dr Reid had referred him for physiotherapy for low back pain. He agreed that this 'might' have happened.

57. It was suggested to the plaintiff that he had, in effect, endeavoured to separate the effects of the 1986 accident, for which he had claimed damages, from the effects of the 1989 accident by consulting different doctors with a view to attributing all of his disabilities to each of the first and third accidents. It seems to have been common ground that the second accident of January 1989 was a minor one.

58. Reference was made to a change of general practitioner from Dr Reid to Dr McIver. The plaintiff had claimed that this change resulted solely from Dr Reid's retirement.

59. However, the medical records tendered disclose the plaintiff had first consulted Dr McIver in April 1990. He continued to consult Dr Reid up until 19 December 1990.

60. There was also tendered a report of Dr Stubbs, a specialist surgeon. He had examined the plaintiff on 3 June 1993 at the request of his solicitors. Dr Stubbs had treated the plaintiff for the effects of the June 1986 accident. The plaintiff did not tell him of the June 1989 accident. It was not until the plaintiff's solicitors raised it with him in August 1993 that Dr Stubbs was made aware of that event.

61. There was a further attack on the plaintiff's credibility centring upon his post-accident work activity.

62. He had conceded that after June 1989 he had 'helped' a man called Charlie Slater, a steel fabricator. However, he claimed that he did not use tools for that purpose and had no need to then take his tool box with him.

63. The plaintiff conceded that he could squat and bend but said he could not do so comfortably.

64. He further conceded that in October 1994 he had assisted a friend to dismantle and take away a grain silo from premises at Fyshwick.

65. It must have been apparent to the plaintiff by this time that there was or might well be surveillance video of some of his activities. When pressed further about the use of his tool box when helping his friend, the plaintiff offered the suggestion that he might have had the tool box there for his friend's benefit. He did not dispute that he may have rendered assistance to his friend for more than two hours.

66. He was asked whether he had engaged in work activity in Weston in April 1995. He said he might have replaced a tap washer. When shown the video of that event he conceded that he had, in fact, repaired a burst pipe and had been paid by the owner, a friend of an acquaintance, for that work. It was clearly work of a more extensive nature than the plaintiff was originally prepared to concede.

67. Whilst I accept that the plaintiff's work capacity is limited, the kind of limitation which seems to have continued into 1995 does not seem to me to be any greater than that which was experienced between 1986 and June 1989. I do not accept the plaintiff's assertions insofar as they are contrary to that finding.

68. There is a further complicating feature. AGL's records purport to show a large amount of sick leave taken between September 1988 and 23 June 1989. It is suggested that this supports Mr Rush's evidence that before the third accident, the plaintiff was already headed for premature retirement quite apart from any question of misconduct.

69. The records purport to show five days 'sick and compensation leave' taken from 16 January 1989. That entry could relate to the second accident, although the plaintiff said that he lost no time from work as a result of it. There was an hour taken on 13 February 1989. 'Sick leave' is recorded for 24-28 April 1989 and 1-5 May 1989 with a further two days on 25 and 26 May. 9-16 June is recorded as 'sick leave'. No sick leave is recorded following the accident of 23 June 1989 until, apparently 28 July 1989. The record tendered was a particularly obscure computer print-out which none of the witnesses nor counsel could satisfactorily interpret. I have concluded that I can place no reliance on it. It was conceded by Mr Rush and Mr Dahl that it probably confuses recreation leave with sick leave and accruals of leave with leave taken.

70. I consider it more likely than not that the plaintiff did not lose any significant time from work because of the effects of the first accident in the 12 months before the third accident.

71. The records showed a date of birth for the plaintiff as 13 August 1935. That was wrong. The plaintiff conceded he gave a false birth date to AGL. When he commenced with AGL in 1985 he was, in truth, 55 years of age. He thought he might otherwise have been considered too old to be usefully employed. Thus he put his age back. He was, of course 59 when his employment with AGL was terminated. It is unlikely he would have served AGL beyond his 65th birthday in any event, though AGL would have believed him to be then 60. His evidence was that he had not intended to serve AGL beyond his 65th birthday.

72. His age has some bearing both on his likely capacity for work but for the third accident and upon his likely employment following retirement. I was not greatly impressed with the plaintiff's evidence. I believe he was overly concerned to exaggerate the ongoing effects of the third accident.

73. I accept that the third accident did cause a severe blow and laceration to the head. I also accept that the effects of the plaintiff's pre- existing injury was exacerbated. The question is as to what was the extent and the duration of that exacerbation. The plaintiff's evidence thereon being unreliable, I will consider the medical evidence.

74. Dr Reid, on 31 August 1989, reported to AGL, probably commenting on the proposal for rehabilitation referred to by Mr Dahl,

As you know he had a MVA in 1986, and was badly injured in the
abdomen, chest and right knee. The latter fractured the tibial plate
of the joint and he has had arthritis ever since. He was in another
MVA in January 1989 from which he got out of (sic) reasonably
unscathed, though his knees became more painful after it and he seemed
to get pain in the neck especially when driving.
On 23rd June 1989 he was again in a MVA which was not his fault. On
this occasion he had a scalp laceration and painful neck muscles.
He now suffers from neck pain if he drives too much as well as some
lower pain. The knees are a constant problem ...

75. A specialist surgeon, Dr David Millons, had assessed the plaintiff in December 1987. He noted disabilities then present as follows,

He can just about cope with a days work but is very tired at the
end of a day. He gets pain in the back of his neck especially when ...
driving ...
His low back pain also gets somewhat sore at the end of a day ...
His right knee still troubles him. It aches especially if he puts it
under any stress. ... He can just about squat.

76. Dr Millons considered the knee to be then stable. He considered there to have been soft tissue injury to his cervical and lumbar regions, but did not consider those problems likely to continue.

77. Dr McIver, who saw the plaintiff first on 9 April 1990, expressed the opinion that since the accident in June 1989,

... he has really had ongoing neck pain and right knee pain which
has been very troublesome and I am sure has been aggravated by that
accident.

78. I was informed that the plaintiff had received a consent award for damages for the injuries suffered in June 1986. Whether the plaintiff was over-compensated or the reverse as a result of that settlement is not relevant for present purposes and I disregard the figure referred to accordingly. I have to assess the plaintiff's present level of disability and the contribution of the accident of June 1989 to it. The adequacy or otherwise of the settlement accepted for the 1986 accident is irrelevant for that purpose.

79. There was a report from Dr Stubbs, given before he was aware of the third accident. He noted the plaintiff suffered, as at 3 June 1993, from chronic neck and low back pain. These were more disabling than the knee. He described the plaintiff as complaining of 'occasional' knee pain. He noted complaints in relation to both knees. He said,

My diagnosis for Mr Reid is that he has stable meniscal tears
present in both knees ... This is a normal age related change. It does
not need treatment and is not related to his road traffic accident.

80. If Dr Stubbs' opinion is accepted, it would follow that the knee complaints would not have been related to the June 1989 accident.

81. On 1 December 1993, Dr Stubbs examined the plaintiff again. He had by then been told about the third accident. He noted that whilst there had been a laceration to the scalp and a blow to the elbow, the effects of each of which was transient, the only difference in complaints before the June 1989 accident compared with the subsequent period was,

He complains of increased stiffness in the neck and back since his
second (that is, June 1989) accident. Since I have not examined him
before that I cannot comment whether his stiffness is appropriate for
his degenerative changes or not.

82. Associate Professor Richard Jones, a rehabilitative specialist, saw the plaintiff on behalf of the defendant on 6 December 1994. He concluded that the plaintiff had suffered soft tissue injury to his neck and back in the June 1989 accident which would have resolved but for the pre-existing condition of his neck and back. However, in his first report he stated that he assumed the plaintiff to have been asymptomatic before June 1989.

83. In his second report of 16 February 1996, Prof Jones noted the additional information that there had been a previous motor vehicle accident in June 1986 which had caused significant injury. It was Prof Jones' opinion, based on that further information, that,

At the time of the accident of 26.6.89 he was aged approximately 59
and bearing in mind his degenerative arthritis he may have been able to
continue working for a further 2 or 3 years in clerical duties but he
decided to retire earlier.

84. There was video evidence of surveillance of the plaintiff. There was nothing I observed in the video tapes shown which demonstrated any lack of consistency between the medical evidence and the plaintiff's apparent level of disability as shown on the videos.

85. However, the picture the plaintiff had painted of his level of disability in his evidence in chief was somewhat different, in my view, from the picture which emerged from the videos and from the plaintiff's answers in cross-examination. I am not suggesting any conscious fabrication, but it seems to me that the plaintiff has a greater residual capacity than his evidence in chief would have suggested. His evidence in that respect must also be regarded as unreliable.

86. The task of discerning the additional effect of the third accident was made more difficult by the somewhat reticent histories the plaintiff had given to some doctors. I do not think that was done, as the defendant suggested, for the purpose of gain. I consider it to be more probably due to the naturally taciturn demeanour of the plaintiff.

87. I accept that there was exacerbation of the plaintiff's pre-existing injuries in the third accident. That exacerbation was, in my view, the precipitating event for the plaintiff's retirement. In determining the extent to which early retirement was inevitable, albeit at a later date, the evidence of difficulties suffered by the plaintiff before the third accident which, though vague, I accept had some validity, inclines me towards acceptance of Prof Jones' prognosis. I do not, in accepting that prognosis, place any reliance on suggestions that before the third accident the plaintiff had taken large quantities of sick leave. I am persuaded by the medical evidence that the third accident caused an aggravation of the effects of the first accident which accelerated the likely progress of the underlying degenerative defects but did not alter the ultimate result.

88. I agree with Prof Jones' assessment that, but for the June 1989 accident, the plaintiff would otherwise have worked for AGL no more than three years beyond the date on which he actually ceased work.

89. On that basis then, I award $20,000.00 for general damages, taking account of the proportion of the pain and suffering which the plaintiff would have experienced in any event. In my view, the pain and suffering attributable to the accident had ceased by the end of June 1992. Taking account of that view, the pain and suffering is now entirely in the past. I award $4,800.00 for interest accordingly.

90. So far as loss of earnings is concerned, consistently with that view, it is my opinion that the damage to the plaintiff's earning capacity following the third accident ceased to have effect after June 1992. In any event, I am persuaded that, after that date at least, the plaintiff's residual earning capacity nevertheless remained sufficient to enable the plaintiff to carry out minor plumbing work for reward on a part-time basis.

91. Having regard to the relatively short period during which earnings otherwise would have been gained by the plaintiff from AGL, there seems to me to be no need to discount those assumed earnings for unfavourable contingencies. The net wage loss over that three year period is $56,160.00. I do not think over that time that the plaintiff would have earned any significant extra money for private plumbing. In any event, the opportunity to do so would have been off-set by increased disability which would be a result both of the plaintiff's age and of the ongoing effects of the first accident.

92. Interest on that loss, terminating June 1992, is $40,415.00 to date (approximately). I award that figure accordingly.

93. There was a claim for loss of superannuation. Given that the plaintiff would have retired by the end of June 1992, he lost no more than $8,750.00 in employer contributions. The assumed $360.00 net per week I assume, in the absence of evidence otherwise, to have included the employee's contribution.

94. That $8,750.00 would have attracted commercial rates of interest and some tax advantages. I simply award interest thereon, on the same basis as for lost earnings, in the sum of $6,296.85.

95. Out-of-pocket expenses were agreed at $610.00.

96. Damages are, therefore, assessed as follows,

General Damages $20,000.00
Interest thereon 4,800.00
Loss of earnings 56,160.00
Interest thereon 40,415.00
Superannuation loss of employer's contribution 8,750.00
Interest thereon 6,296.85
Out-of-pocket expenses 610.00
TOTAL $137,031.85

97. There will be judgment for the plaintiff in the sum of $137,031.85.