David Lance v Nicole Louise Horne [1997] ACTSC 27 (24 April 1997)

SUPREME COURT OF THE ACT

DAVID LANCE v. NICOLE LOUISE HORNE
No. SC 877 of 1995
Number of
pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Plaintiff Riding Bicycle - Plaintiff thrown from bicycle when hit by defendant's vehicle - Neck and shoulder injury - Ongoing diminution of earning capacity - No Issue of Principle.

Medlin v State Government Insurance Commission [1995] HCA 5; (1994) 182 CLR 1

Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

Anastasiadis v Papez (unreported, Full Bench of the Supreme Court of the ACT, Miles CJ, Gallop and Higgins JJ, 12 December 1996)

Luntz, Assessment of Damages for Personal Injury and Death 3rd ed, 1990, Butterworths

HEARING

CANBERRA, 7 April 1997 (hearing), 24 April 1997 (decision)

24:4:1997

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Barker Gosling

Counsel for the Defendant: Mr G Stretton

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $60,603.03.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 22 June 1995. The plaintiff was riding his bicycle to work along Limestone Avenue in Braddon in the Australian Capital Territory when the defendant emerged from Farrer Street Braddon in her motor vehicle and collided with the plaintiff. While liability was formally still an issue on the pleadings, there was no contest as to liability and the hearing proceeded by way of assessment only. I am satisfied that the defendant is properly liable for the consequences of the collision of 22 June 1995 when the plaintiff was knocked from his bicycle.

The plaintiff was born in England in 1938, and after completing his schooling and a period of National Service he commenced tertiary studies, leading to degrees of Bachelor of Arts and Master of Arts, and a Diploma in Education. The plaintiff obtained a position in the Imperial War Museum in London, and embarked upon his successful professional career in the field of museum curation with a particular emphasis on oral history. The plaintiff married in 1982, and in 1983 came to Australia to a position at the Australian War Memorial in Canberra. His two sons were born in Canberra in 1983 and 1986. In 1985 the plaintiff was successful in his application for the position of Assistant Director of the National Museum of Australia, which has been a position in the Senior Executive Service of the Australian Public Service.

On the day of the accident the plaintiff was riding his bicycle to work, as was his practice. The ride would take about a half an hour from his home in Campbell to the temporary premises of the National Museum in Mitchell. The accident occurred while the plaintiff was cycling along Limestone Avenue, his normal route, and the defendant failed to give way or stop as she proceeded from a side street onto Limestone Avenue.

The plaintiff was thrown from his bicycle after he was struck, and flew through the air landing heavily on his head and left shoulder. He says that his helmet was cracked, both in the outer shell and the foam lining by the impact of his landing, and I have no doubt that, were it not for the use of the helmet, the plaintiff would have suffered far more severe injuries, or worse, as a result of this accident.

He recalls being on the roadway, and he noted pain in his neck and left shoulder, and a numbness in his left hand. The plaintiff thinks that he was at the site of the accident for some hours before arriving at Calvary Hospital, but the report from Calvary reports that he was brought in by ambulance at 0915 hours. He says that he left for work about 8.30 a.m. on the day of the accident. His wife says that when she arrived at the hospital, after being summoned from her place of employment, the plaintiff was in a "pathetic condition" and was shaking, upset and confused. I make nothing of the plaintiffs error in recall in the timing on this point.

The plaintiff was examined at Calvary Hospital, and allowed to leave after x-rays had confirmed that there were no fractures and he had been provided with Voltaren. He was told to see his general practitioner. The plaintiff's wife said that he had been very anxious to get out of hospital and get home, and that in her view he over exerted himself in demonstrating to the doctors at Calvary that he was able to walk and should be released. In any event, he was allowed home, where he was stiff and sore and confined to bed for some days. During this period the plaintiff's wife had to help him with all activities. She recalls taking two days off work full time, and then being able to return to work, with the plaintiff confined to bed but able to get up and move about the house. I note that this is consistent with the dates of the accident occurring on a Thursday, with the plaintiff's wife having to be away from work on that day and the next, but able to return after the weekend.

The plaintiff attended his general practitioner on the Monday. Her report says that

"He was still complaining of a very painful left shoulder and arm with numbness of the left thenar eminence and left thumb and index finger and weakness of his left thumb. On examination he had tender C6/7 cervical spine with pain elicited on movement of shoulder or neck. He had decreased pin prick sensation in his left arm and hand in a C6/7 distribution with global weakness of his left arm and hand."

The general practitioner prescribed physiotherapy and medication. Mr Lance remained off work for about a month, and then commenced a graduated return to work. He attempted 5 hours a day in late July, but was forced to take some time off, and recommenced a graduated return in August, returning to full time duties in December 1995.

The plaintiff says that, while he was back to work full time he was able to adjust his work pattern to cope with some ongoing disabilities relating to his shoulder and left arm. He continued with his full time work until October 1996, when he left the National Museum, accepting an offered redundancy package. The plaintiff does not say that the accident caused or contributed to his leaving the full time workforce. This is clearly to his credit. He acknowledged that he had not been happy for some time preceding the accident at the Museum, which has had something of a chequered history in terms of repeated commitments to begin construction which have come and gone over the years. While he gave evidence that he was in good physical health before the accident, he acknowledged in cross examination that he had had some stress leave from his workplace in recent years. This is entirely consistent with his evidence of deciding, independently of the accident, to seek a redundancy package and leave the Museum.

The plaintiff says that it was his intention to have a year off work after taking his package, and then to begin a consultancy practice, looking to specialised consultancies in museum curation and oral history, which is work of a kind that he has special qualifications in and in which he has provided consultancy services to other bodies while with the Museum, and to more general work such as scribing in public sector promotion interviews and transcribing oral history tapes. The plaintiff's case is that he will, as a result of the accident, have some ongoing restrictions in pursuing these consultancies, which should sound as a buffer type award in relation to damages for future economic loss. This case is not analogous to Medlin v State Government Insurance Commission [1995] HCA 5; (1994) 182 CLR 1, where a university professsor took a redundancy package after having returned to duty following a motor vehicle accident, but was able to establish that the ongoing consequences of the motor vehicle accident were a factor in leading him to the decision to accept a redundancy package.

Counsel for the plaintiff acknowledged that this is not the case here, but stressed that the plaintiff is, nevertheless, entitled to compensation for loss of future earnings if it can be demonstrated that he has, as a consequence of the accident, suffered an ongoing diminution of earning capacity. The plaintiff's claim is that, but for the accident, he would have faced no restrictions in relation to his future as a consultant. The plaintiff 's case is that, as a consequence of the accident, he will face certain restrictions in the type and duration of consultancy work that he will be able to undertake, and that this must sound in damages in a buffer for loss of future earning capacity. While counsel for the plaintiff acknowledges that, because the redundancy was not related to the accident in the Medlin sense, there is no ongoing wage loss claim, the decision voluntarily to leave the public service does not mean that no claim for damages for future economic loss is sustainable. I accept this proposition, for to do otherwise would be to confuse loss of earnings with loss of earning capacity, and it is loss of earning capacity that is compensible - Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1 per Barwick CJ at 7; Luntz, Assessment of Damages for Personal Injury and Death 5.1.3. It is no answer to the plaintiff's claim to say that no damages are available because the plaintiff, on the facts, was able to return to full earnings as a public servant after the accident and subsequently took a voluntary redundancy package for reasons unrelated to the accident. If the plaintiff's earning capacity has been diminished by the accident, such diminution is compensible.

The defendant acknowledges that the plaintiff was required to take time off from work as a consequence of the accident, and accepts that an award should be made in respect of this past economic loss. This is capable of easy quantification, and, as the plaintiff was in receipt of fortnightly payments during this period, there is no interest payable. Counsel agree that the defendant is liable in respect of the sum of $15,318.35, being the amount of money paid to the plaintiff by Comcare during the period of his absence and graduated return to work. Counsel also agree on out of pocket expenses of $5,414.68, which I award.

There is agreement between the various medical experts who have examined the plaintiff that the accident has had the consequence of making symptomatic a pre existing degenerative condition which had previously been asymptomatic. Dr Danta, who reported for the plaintiff, concluded from his examination and radiological reports that the plaintiff now has a significant disc protrusion on the left side at the C6/7 level, and concluded in his report of 20 October 1995 that

"The injury aggravated, and rendered symptomatic pre existing cervical spondylosis."

Dr Andrews, in his report of 27 June 1996 to the defendants said (with a typographical error corrected)

"This fellow had some degeneration in the neck at C5/6 and 6/7 which was asymptomatic. It has now been made symptomatic by the accident."

Dr Keiller in his report to the defendant of 1 August 1996 said

"His residual discomfort is now related to the degenerative changes previously present. The accident did not cause those changes. It did, however, aggravate them, and make them symptomatic."

In his oral evidence Dr Keiller stressed that there was no way of knowing whether, in the absence of the accident, the plaintiff's degenerative changes would ever have become symptomatic, or of predicting when this might occur. This is consistent with his report of 1 August 1996 where he said

"The neck changes were liable to become symptomatic without trauma, but the accident was the trigger for them to become painful, and for him to develop an uncomfortable numbness in his left hand. The accident, therefore, deprived him of the chance of remaining symptom free for longer, or even indefinitely."

I am satisfied, on the basis of this evidence, that the plaintiff has as a consequence of the accident suffered an aggravation of a pre existing degenerative condition so that a previously asymptomatic condition has become symptomatic. I accept the plaintiff's evidence, which is consistent with all of the medical reports, that this manifests in mild restriction of neck movement and pain and loss of sensation in the left arm. This has been described by Dr Andrews for the defendant as

"...some stiffness in the neck at times with some restriction of limitation. He has some pain referred into the left upper limb. His restrictions are mild."

(report of 31 January 1997). Dr Keiller in his report of February 1997 referred to the plaintiff having genuine residual symptoms, but noted that

"He will probably be liable to occasional episodes of discomfort, particularly in cold, wet weather and after excessive or injudicious activity. Such relapses will be brief and respond rapidly to simple therapeutic methods, returning him to his general level of fitness."

Dr Danta, in his report to Comcare in May 1996 said that the plaintiff

"...should avoid undue lifting with the left arm and undue physical activity involving the use of the left arm. He certainly is holding down his full time job now and his present disability is relatively slight. Physical restrictions on his current job are fairly minimal. The prognosis is guarded, and I think he will be left with the numbness and with some degree of pain in the neck and left arm for a long period of time, if not indefinitely."

Dr Scott, an occupational physician who examined the plaintiff and gave evidence in the plaintiff's case, said in his report of 26 November 1996 in relation to the plaintiff's plans to operate as a consultant

"His symptoms and disabilities may well delay and/or reduce the motivation necessary to develop his role fully, and, regardless of this, I believe his disabilities will hinder him because of the need to maintain fixed postures, particularly of his head and neck, as in scribing, report writing, computer work etc."

While the plaintiff acknowledged that he was able to do all of these things while back at work following the accident, he stressed that he was then able to operate at his own pace, and could take breaks when required. His particular concern is that his present condition would be a disadvantage in seeking consultancy work in situations like job interviews, where if he needed a break it would disrupt the entire interview process and inconvenience other persons. In such circumstances he fears that he would not be likely to be successful in bidding for such work.

The plaintiff said in his evidence in chief that he had to give away bicycle riding since the accident. In cross examination he conceded that he had had a number of attempts, and much was made of video material showing the plaintiff riding his bicycle, with no apparent disability, on two occasions in April 1996. I do not make much of this. I note that in the report of Dr Andrews to the defendant in January 1997 it is reported that the plaintiff

"...doesn't ride his bicycle very often".

The plaintiff's wife gave evidence that the plaintiff wanted to try to ride shortly after the accident, much to her discomfort, but that he rode only on odd occasions. She said that during the period that he was back at work he would rarely have ridden a bicycle, and then only when, for a particularly important reason, she may have needed to use the family car. It is significant, that with no knowledge of the video material of April 1996 she instanced a period shortly after the federal election when she was required for briefings with incoming Ministers and needed the car to attend Parliament House. I accept the plaintiff's evidence that, as a consequence of this accident, he is no longer able to engage in cycling to the extent of his previous interest. The plaintiff acknowledged in his own evidence that he is still able to swim and play golf, but said that he is restricted in activities around the house, despite being a keen do-it-yourself handyman before the accident. He also said, and this was supported by his wife, that he must now be very careful in physical "rough and tumble" with his boys, now 10 and 13, and that this causes him some distress.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

In relation to general damages, I must take this as a matter towards the lower end of the spectrum for neck and shoulder injuries. Counsel for the plaintiff referred me to the decision of the Full Court in Anastasiadis v Papez, unreported, 12 December 1996, where $35,000 was awarded for general damages, but the facts in that case place it as a more serious matter than this. Taking into account all of the evidence I assess general damages at $20,000, with half of this amount attributed to past loss, generating interest of $370, a total award for general damages of $20,370.

There is a Griffiths v Kerkemeyer claim particularised at $2,875. During addresses counsel for the plaintiff acknowledged that this may be pitched too high being based on 115 hours at $25 per hour, a figure which was not supported by any evidence. I am however satisfied that the plaintiff's wife provided very intensive support during the period immediately following the accident, and that the plaintiff's ongoing disabilities, while modest, do require a degree of ongoing support for undertakings which he would otherwise have done alone. Counsel suggested a global award under this head of damages of $1,500, which I find appropriate in all the circumstances.

The plaintiff has been advised that he may obtain some relief from surgery, but he is understandably cautious about undertaking a procedure to decompress the C6/7 nerve. His medical advisers have supported this approach, but it does remain a possibility. The operation would cost in the order of $10,000. While he is not on regular medication, he does require analgesics from time to time, and physiotherapy when his condition flares up. He gave evidence that, while he generally has success from a regime of exercises, he was less careful about this regime over the Christmas period, and as a result required a period of physiotherapy for some weeks. I award $3,000 for future out of pocket expenses as a discretionary sum.

In relation to the future loss of earning capacity, counsel urged that I adopt a buffer approach, but conceded that, given the facts of this case, he could not point to a relevant decision showing an appropriately comparable award. The best that he could say was that the plaintiff was at real risk on missing out on a few thousand dollars of possible consultancies each year over a period of 5 plus years. I find that, while the plaintiff will be under little disability in consultancies utilising his undoubted skills as a senior historian and curator, he would have real difficulty in undertaking some potential activities, such as scribing in job interviews, where he would not have the ability to take breaks at his own convenience without inconveniencing others. This is a genuine matter for compensation, but at a relatively modest level. I award $15,000 by way of compensation for future economic loss.

This amounts to a global award of $60,603.03, which is appropriate in all of the circumstances.