Anthony David Macfarlane v Victor John Simic [1996] ACTSC 79 (19 July 1996)

SUPREME COURT OF THE ACT

ANTHONY DAVID MACFARLANE v. VICTOR JOHN SIMIC
No. SC143 of 1995
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Motor Cyclist hit from Behind Whilst Stationary at Pedestrian Crossing - Soft Tissue Injuries to Neck and Lumbar Spine - Major Reactive Depression - Chronic Pain Syndrome - Loss of Earning Capacity

Brandi v Mingot (1976) 12 ALR 551

HEARING

CANBERRA, 1, 2 and 3 July 1996
19:7:1996

Counsel for the Plaintiff: Ms P. Burton

Instructing Solicitors: Clayton Utz

Counsel for the Defendant: Mr R. Toner

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $154,701.13.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for personal injuries arising from a motor vehicle accident in Canberra on 29 April 1987. At the hearing liability was admitted, so the matter proceeded by way of assessment of damages only.

2. The plaintiff was born in 1968 in Sydney, but completed his schooling in Canberra. His father is a mechanical engineer, and he has always had an interest in repairing motor vehicles and machinery. He completed his year 10 certificate, and began a mechanical engineering course at a TAFE College in 1985, but he did not complete the course. In that year he worked for a while on his parents' rural property near Canberra, before working for a period with a water drilling rig team.

3. In 1986 he secured his apprenticeship as a motor mechanic. In this year he also established a domestic relationship with Sharon Cook, who he had known since school and who remains his partner and the mother of his two children. He says that he felt that securing an apprenticeship was the culmination of his interest in cars, and he looked forward to successful completion of his trade skills, and eventually running a business on his own account as a motor mechanic.

4. He was very successful in his formal training component in his first year of his apprenticeship, and he says that he found the work rewarding. By the date of the accident he was in his second year of his apprenticeship at Corin Motors. On the day the company's vehicle was out when a part was urgently needed to complete a job, and the plaintiff rode his motor cycle in to the city to pick up the part from a supplier. The plaintiff gave evidence that he had been riding motor cycles off road since the age of 10.

5. The accident occurred as the plaintiff pulled to a halt at a pedestrian crossing on London Circuit. He says that as he was stationary he heard the defendant's vehicle approaching from behind. It became clear that the defendant was not going to stop, and the plaintiff, realising that a collision was imminent, tried to accelerate away. He was unable to avoid the collision, and the defendant's vehicle struck him from behind, forcing him down and under the front of the defendant's vehicle.

6. The plaintiff gave evidence, and this was not contradicted, that following the accident the defendant, who was driving a government vehicle, said to the plaintiff that the accident occurred because the defendant had to choose between striking a metal give way sign, which would do great damage to the defendant's vehicle, or the plaintiff on his motor cycle, and he chose the latter as this would do less damage to his vehicle. This has, understandably, caused the plaintiff much resentment over the years since the accident.

7. Immediately after the accident the plaintiff said he felt "stretched" and was obviously shaken. Ambulance officers attended, but they did not indicate that the plaintiff should attend hospital. The plaintiff returned to work - he was driven by the defendant - and he completed the job in hand. He had told his employer what had happened, and after the job he went home and went to bed.

8. The next morning he says that he woke feeling stiff all over and that he couldn't move. He says he felt like "a lump of lead", and he took the bus to see his general practitioner, who referred him to x-ray. He was prescribed some pain killers and anti inflammatory drugs, and had some time off work.

9. The medical evidence in this case establishes that the plaintiff suffered soft tissue type injuries to his neck and back as a result of the accident. It is clear that there has been no damage to his bones or discs, but he continues to suffer from the consequences of this accident.

10. The plaintiff returned to his work, and continued with his apprenticeship. Over the next year or so he says that he continued to suffer pain and restriction to his movements, and that he was unable to work at the normal pace. When he could work, however, he worked to a very high standard. He continued to achieve high results in his study component of his apprenticeship, despite missing a lot of days at college. He says that he started to drink quite heavily to ease his pain.

11. He became dissatisfied with his apprenticeship at Corin Motors, as he was increasingly being assigned light yards person type duties rather than real mechanics work. This firm was in any event heading into financial difficulties, and the plaintiff was able to transfer his apprenticeship in its final year, 1988, to Slaven Motors, a large and well established dealership in Canberra. He says that here he had an understanding boss who was prepared to accept the plaintiff taking considerable time off work because of the quality of his work. He says that his boss tolerated this because he "never had any stuff ups" - a job allocated to him as the apprentice would never have to be redone. By February 1990 he had completed his apprenticeship, and was then employed so that he was receiving over the award wages. He says, and the wages books of Slaven Motors tendered as evidence confirm, that he would often work less than the normal hours per week, and that when he had exhausted his sick leave credits this would simply result in his pay being appropriately adjusted down.

12. By September 1990 the plaintiff chose to terminate this employment. He says that he was becoming unhappy at working conditions and money, and that he felt some humiliation at not being able to do some heavy jobs, and often being late in and early to leave. He says he was the brunt of some comment from his fellow workers because of this. Nevertheless, I find that he was working and could have continued working at this time.

13. He chose to try to establish his own business as a motor mechanic at Bungendore. With the assistance of his father he obtained a lease on the workshop at a service station at Bungendore. He says this was because he needed, as a result of his accident, to be able to work at his own pace and at his own hours, and I am sure that this was a factor in his decision. But he acknowledged that it had always been his ambition to build his own business as a motor mechanic, and in this sense the move to self employment had always been a plan.

14. Both the plaintiff and his father gave evidence that, in this type of venture, there would be a period of growth where little money would be earned as the business became established. This represents the pattern here, with an initially low turnover and profit. The plaintiff says that he was very happy in this venture, and that his neck and back were stable, still causing pain and limiting his movements, but that he was able to work around this. He would, if need be, work late into the night to finish a job if he had been forced to take rests during the day.

15. He says that his reputation grew, and the figures show this. Material provided by the plaintiff's father, who did the books for the business, show that the weekly turnover was steadily growing, at $1,014 in the business' first year, $1,484 in its second year, and $1,935 in its third year, with gross weekly profit showing a similar trend, at $384 in the first year, $537 in the second and $849 in the third.

16. In October 1992 the business was abruptly terminated by the landlord as a result, apparently, of complaints of noise from the premises due to the late and irregular hours the plaintiff worked. This was a major blow to the plaintiff. He says that, as a result of this experience he would never again rent premises to conduct a business. In fact he has taken no steps to relocate the business, and, apart from a very short period as an employee at an engine exchange business, he has not worked as a motor mechanic since.

17. After the business was forced to close he applied for unemployment benefit, and was referred to an engine exchange business, where he was offered employment. He was terminated after some six weeks. He says that this was because he was the only employee, and his need to work irregular hours and have some days off meant that he was unsuitable. I accept this, but I also must conclude that this type of work - full engine exchanges - is at the heavier end of activities for a motor mechanic, and so unsuitable for the plaintiff.

18. From this point on, the major factor limiting the plaintiff seems to have been depression. He has neither applied for employment as a mechanic nor seriously looked to re-establish a business that was most promising over some 3 years. The plaintiff and his family have moved to the north coast of New South Wales, where they live on a bush block, which they have purchased, some 50 km from Kempsey. There is neither electric power nor telephone, and the dwelling is a shed constructed from raw timber poles. The plaintiff has laid a cement slab and purchased a shed, and says that he hopes to operate as a mechanic from his block.

19. The plaintiff acknowledged in cross examination that, in the motor mechanic business, location to attract passing trade was an important factor in a business. Bungendore had been a good location, but he has done nothing to look for a similar site. He has not looked for premises in Kempsey, even in an industrial area, where noise from irregular hours would not be a problem. While he remains ambitious to operate a business from his bush block, he acknowledged that this could only achieve a limited turnover. This, however, is his choice.

20. The plaintiff admitted in cross examination to using cannabis quite regularly - at around 10 "cones" per day. Counsel for the defendant argued that this was also a factor in the plaintiff's present decision to only seek to operate from his block.

21. The medical evidence does not disclose any significant physical incapacity for work, and indeed, up until his closure of his business he was working full time. Dr Andrews, consultant neurologist, reported to the plaintiff's solicitors on 17 November 1994: "From the physical point of view I cannot find anything major here and I am sure he is quite fit for light physical work and occasional brief periods of heavy physical work. I think he probably would be best to establish himself locally and engage in some light mechanical repair work but I cannot see him getting back to full time work as a mechanic."

22. Dr Keiller on 30 September 1991 reported to the plaintiff's solicitors that: "Mr MacFarlane still has genuine symptoms which interfere with his sense of well being and comfort, and limit him slightly in his activities as a mechanic, in that he has to have help during certain manoeuvres of a heavy lifting type ... He is fit to remain at work as a mechanic, in a self employed environment, as at present and, in that capacity, I see no long term danger to his employment prospects, social amenities or expectation of life."

23. By 6 October 1994 Dr Keiller reported that he had "...no abnormal physical signs on examination" and that, "...both hands showed marked work staining and thickening of the skin." He said: "Although Mr MacFarlane has ongoing complaints, there are no objective abnormal signs to sustain a belief in any ongoing pathology as a result of the accident. He has had a depressive illness, which may be playing some part in subjective continuation of his complaints, but from a purely physical point of view I believe he has now recovered."

24. In a medico legal report of 12 December 1995 to the plaintiff's solicitors, Dr Griffith said: "In common with his other medical advisers, I do consider him fit to work, but there are significant restrictions. I agree that he would find it difficult to regularly lift greater than 20 kgs, or work for protracted periods with a flexed neck and with a bent lumbar spine, e.g. under engine compartments or beneath vehicles on a hoist. I consider this statement can be supported by the fact that he did, in fact, return to full time work, albeit leading somewhat unusual hours, during his period as a self employed mechanic, and had he not been ejected from the premises for unrelated reasons, it is likely that he would still have been so employed."

25. Following the closure of the Bungendore business the plaintiff has suffered depression. This is well documented in reports from his various doctors. All seem to agree, however, that the major solution will be for the plaintiff to resume activities as a self employed mechanic.

26. Dr Veness, who diagnosed "serious reactive depression" in May 1993, said in his February 1994 report to the plaintiff's solicitors: "I would expect his depression to remain under control and improve once his life is settled into a manageable routine which has some meaningful work involved in it."

27. Dr Griffith, in his December 1995 report, said: "I would agree with Dr Veness that perhaps the most important factor of all is for him to resume gainful employment. This is a problem because of his present isolation, living in the country. He is able to gain intermittent work only from farmers on a now and then basis."

28. He is currently seeing Dr Holmes, a Kempsey psychiatrist, who in his report of 26 April 1996 to the plaintiff's solicitors said: "Psychological factors continue to crucially affect his condition. So far he has not benefited from counselling or psychotherapy. These problems are often difficult to improve and I doubt that he will get very far at least until after his legal action is completed. The anger that these issues generate inflame his condition. If he is vindicated in court and derives a feeling that justice has been done, therapy may become easier. It would also be of great benefit if he becomes financially capable to establish his own business. This would allow him to become productive again while working at his own pace in his own time. He could tailor his work to the constraints of his condition and still be gainfully occupied. This would help greatly to restore his self esteem and could go a long way toward overcoming his depression."

29. I accept these as an accurate description of the plaintiff's present predicament.

30. The claim for damages for economic loss is in this case particularised as a claim for the period 1 October 1990, when the plaintiff commenced the Bungendore business, to the end of October 1992, when the Bungendore business ceased, of some $25,000, being the difference between the plaintiff's actual earnings and what he would have earned had he remained as an employed mechanic. The claim continues from October 1992 to the present at a notional employed mechanic rate less his earnings, which are modest, resulting in a claim for a further $75,000.

31. The difficulty with this claim is that the plaintiff elected to leave his job at Slaven Motors in order to establish a business. Both the plaintiff and his father acknowledged that, in establishing a business, earnings will be low at first but, if the business is to flourish, will show steady growth. This, the plaintiff's business did. The plaintiff gave evidence that he had always intended to establish a business, which he did. I am unable to attribute to the defendant the full difference between his employee wages and the actual business earnings.

32. From the date of cessation of business to the present the plaintiff is faced with the problem of his failure to mitigate his loss. He gave evidence that, despite building his business to a successful level, he made no effort to relocate, even though all that was needed was bare premises. His reason, that he never again wanted to operate from rental premises, seems insufficient.

33. This is not to say, however, that there has been no loss. But given the facts of this case, the plaintiff's expressed goal of establishing his own mechanics shop, and then his refusal to relocate, I do not think that this is a case for an arithmetic approach. I award $25,000 as a discretionary buffer for past loss, inclusive of interest.

34. The future loss is based on an ongoing weekly net loss, based on employed rates of $428. This would result in a sum, at the normal contingencies of $430,000. But the medical evidence simply does not establish such a loss. Indeed, referring as I have only to the plaintiff's own doctors, the picture emerges of a man quite able, physically, to conduct his own mechanics business for a full working week, albeit at hours to suit himself. His psychiatric advisers point to a present depressive illness, but one that would resolve if he was able to establish a workshop.

35. The plaintiff has chosen to live in a remote location, and to set as his goal the establishment of a workshop there. He acknowledges that such a business will have a lower turnover in such a location, but this is his choice.

36. This is a case where the appropriate remedy is a buffer against future economic loss. Given the nature of the plaintiff's injury this will be a realistic sum to acknowledge that he will suffer a real disability in the open labour market, but it must also be judged against the medical evidence on which the plaintiff's case is based.

37. I award the sum of $75,000 by way of compensation for future loss. While it is not the role of the Court to advise a plaintiff, I hope that, with this sum, the plaintiff will develop his workshop, and build up the type of business that will enable him to support himself and his family in their chosen location and lifestyle.

38. In respect of general damages, the plaintiff is to be assessed taking into account the quite severe pain he experienced in the period after the accident, and the psychological complaints which have persisted, as described in medical reports tendered on behalf of the plaintiff. I find that his symptoms are attributable to the accident, and I do not attribute any significance to two minor accidents since the motor vehicle accident, the subject of these proceedings.

39. I note that the plaintiff was examined by a psychiatrist on behalf of the defendant, but that this report was not produced. Nor was a report from a rehabilitation specialist. I am entitled to draw from this the inference, as I was invited to do by Counsel for the plaintiff, that these reports would not assist the defence (Brandi v Mingot (1976) 12 ALR 551 at 559).

40. I must, however, also bear in mind that this is soft tissue injury only, with no hospitalisation, and quite limited treatment. Out of pocket expenses were agreed at $4,050.65, and there were quite prolonged periods when no medical treatment was sought. Nevertheless this accident undoubtedly changed the plaintiff's life, and he has suffered both physical pain and mental anguish to which he is entitled to compensation. I award $40,000, with $30,000 attributable to past loss, generating interest of $5,526.

41. There is a modest Griffiths v Kerkemeyer claim of $1,124.48 representing the intensive assistance provided by his spouse in the aftermath of the accident, which I award.

42. There is a claim for future treatment expenses which is particularised as ongoing general practitioner and specialist services well in excess of the past. I also note that, while the claim for psychological consultations is based on monthly visits for three years and then quarterly visits on an ongoing basis at $75 per visit, the view of his treating psychiatrist is that, if he can establish his business his problems will most likely settle.

43. I award $4,000 under this head.

44. This results in a global award of $154,701.13, which is appropriate in all the circumstances.