George Edward Cheetham v David Patrick Sherd [1997] ACTSC 62 (4 September 1997)

SUPREME COURT OF THE ACT

GEORGE EDWARD CHEETHAM v. DAVID PATRICK SHERD
No. SC 873 of
1995
Number of pages - 7
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft tissue injury to back - Pre existing underlying degenerative disease rendered symptomatic as a result of the accident - Loss of opportunity to earn a second income - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

HEARING

CANBERRA, 1-2 July 1997 (hearing), 4 September 1997 (decision)

4:9:1997

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: Mr M W Robinson

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $82,083.60.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred at Ainslie, in the Australian Capital Territory, on 9 September 1991. The plaintiff was driving his vehicle on that morning and was struck by a vehicle driven by the defendant, which emerged from a side road and struck the plaintiff's vehicle on the left hand side with sufficient severity to spin the plaintiff's vehicle around, so that it was left facing in the opposite direction to the plaintiff's direction of travel. Liability for this accident has been admitted on the pleadings, and the matter came before me for assessment of damages only.

The plaintiff was born in March 1937 in England. He completed his schooling to the age of 14, and then worked for two years in the building industry, before commencing an apprenticeship as a carpenter at the age of 16. He completed this apprenticeship, which involved a six year course, and moved to London where he worked with a building firm as a trainee foreman. While so employed he commenced and successfully completed a Diploma in Building course, which took some four years. The plaintiff worked in the building industry in England and Europe in the early to mid 1960's, and in 1967 he commenced teaching building trades skills in a trade college - the equivalent of the Technical and Further Education sector in Australia. At this time he commenced and successfully completed a qualification that is the equivalent of an Australian Diploma in Education.

The plaintiff has remained in the TAFE system as a teacher of building for the remainder of his career. He has continued to improve his qualifications, obtaining a Masters Degree in Material Science in the 1980's, which involved a period of teaching and research work in the United States, as an exchange teacher at a tertiary institution in New York. In 1984 the plaintiff had the opportunity to come to Australia as an exchange teacher for what was expected to be a one year period in Sydney. The plaintiff enjoyed this, and in 1985 he joined the teaching staff of the building trades school at the Bruce TAFE, which now forms part of the Canberra Institute of Technology. Within four years of commencing as a Band 1 teacher the plaintiff was promoted to Head of Department, and he has been in charge of a Department ever since.

The plaintiff gave evidence, which was supported by other witnesses, that much of the face to face teaching work of a TAFE teacher in the school of building occurs after hours, as classes are scheduled in the evenings to allow students who are employed in the building trades to attend. While administrative duties, class preparation and marking occurs during ordinary working hours, TAFE teachers in the trades areas are permitted, and even encouraged, to engage in other employment in the building sector. The plaintiff had in the years before the accident found such employment from time to time as a clerk of works, supervising and monitoring contract compliance on building sites for the supervising architects. In addition, he was able to engage in a number of small building and alterations projects.

The plaintiff has lost little time from his job as a TAFE teacher as a result of the accident. His claim is that the motor vehicle accident produced soft tissue injury to his back, and also rendered symptomatic a pre existing underlying degenerative disease, which has led to ongoing back pain and restrictions to his mobility. While this does not interfere unduly with his teaching duties, it is his case that it has precluded him from undertaking other remunerative activities in the building field which he would otherwise have undertaken, and as a result there is a claim for loss of income to trial and future loss of income based on his inability to undertake this additional employment.

At the time of the accident the plaintiff was engaged as clerk of works on a major project, the construction of the Goodwin Homes retirement village in Ainslie. He was employed by Anthony Cooper and Associates, who were the architects in charge to the project. He left his home in Ainslie early that morning to pick up some books which had been left at the home of a colleague who lived nearby. He was on his way to the Goodwin Homes site when the accident occurred. He says that he was in a degree of shock and confusion following the impact. A nearby resident assisted him to a comfortable position lying on the grass, and ambulance officers soon attended. They checked him for major injuries, and advised him that he had the option of going with them to the emergency department of the hospital to be checked, or attending his general practitioner. The plaintiff said that they told him that another accident with some serious injuries had occurred that morning and that there could be a wait at the hospital, so he elected to see a doctor. The plaintiff said that he had been very healthy over the years, and had in fact not attended a doctor for some 20 years, so he had to find a practice to attend. The force of the impact was, I have no doubt from the plaintiff's evidence, considerable. His vehicle was written off in the collision.

The plaintiff attended a local general practitioner. The doctor's notes record a history of a motor vehicle accident, and show that the plaintiff was given a tetanus shot for his cuts and abrasions. No complaint of back pain appears in these notes, and it is not until 2 October,when the plaintiff returned to the practice, that complaints of neck pain are recorded. The plaintiff said that he was complaining about a sore back in the days following the accident, and the defendant did not dispute this evidence, generally accepting the plaintiff as a witness of truth, which in my opinion is quite proper.

Despite the accident the plaintiff attended the Goodwin Homes site that day, as well as fulfilling his teaching and administrative commitments at Bruce TAFE. The plaintiff was shown attendance records for both his employers, and agreed that these showed that he worked a total of some 15 hours on the day of the accident, and 17 hours the following day. The defendant argues that this is indicative of the plaintiff's conduct for the next several months, as he continued to work long hours as a result of the combination of his teaching job and the Goodwin Homes project.

At this time the plaintiff was also involved in a building project in his own right. There was conflicting evidence in relation to this project, which involved alterations and extensions to a residential property in Hughes owned by Mrs Davidson. She said that she was paying for the work performed by the plaintiff, and she said that, as a result of the accident, the plaintiff was slower in completing the project, so that it was not completed by November 1991 as planned. It was completed in January 1992.

The plaintiff acknowledged in cross examination that there was no record in his income tax returns from 1991-2 to income from this project. He said that he was not paid cash, but that he received services in return, as well as Mrs Davidson paying some bills for him, and purchasing a car for him to replace the car damaged in the accident. Unfortunately, Mrs Davidson was called to give evidence before the plaintiff, and it was not possible to clarify this version of events. The plaintiff's involvement in this type of building activity is important to his case, as he says that his ongoing disability, while it does not prevent him continuing to work full time, and indeed for more than 40 hours a week, as a TAFE teacher, as well as continuing to do renovations and restoration work on his own house, does prevent him from being "competitive" on the open market as a builder. His version of the payment arrangements for this project, however, does not show this as a normal commercial venture. He was not able to give evidence of any projects which he in fact undertook before the accident which would meet this description, in relation to building projects undertaken on his own behalf.

The plaintiff attended his general practitioner on 2 October to complain of back pain, and was referred for physiotherapy, which he undertook throughout that month. He attended again at the end of October, and was referred for x-ray. At this time he was working full time at TAFE, continuing to put in long hours on the Goodwin Homes project, and continuing with the alterations to Mrs Davidson's property, albeit at a slower pace.

Dr Warren, his general practitioner, reported to the defendant's insurer in May 1992 . She recorded his first attendance and tetanus shot, and then said

"I was then consulted on 2.10.91 and approximately five days after the accident Mr Cheetham had developed an ache in his lower back and a niggly sensation between his shoulder blades. Clinically he was tender in the interscapular region with taut musculature. His spinal flexion was very good with finger tips to the floor, though limited by some discomfort from putting his hands flat to floor as usual. I advised soft tissue injury and recommended manipulative physiotherapy and the use of a non steroidal anti inflammatory drug (Voltaren)."

Dr Warren reported that the x-rays, which he saw on 5 November, showed

"...normal lumbar disc spaces but obvious osteoarthritic lipping of L3-L5 vertebrae. I recommend he persist with physiotherapy, as he hadn't found Voltaren helpful, as I felt the accident had aggravated pre existent osteoarthritis in this area."

At the time of this report in May 1992 Dr Warren had not seen the plaintiff since November 1991. Her diagnosis was that

"Mr Cheetham sustained mild soft tissue injuries from the car accident of 9.9.91. His prognosis is excellent with full resolution of symptoms occurring in two months and unlikely to recur to any significant degree in the future; though he may require the occasional course of physiotherapy for his back from time to time."

The defendant's case is broadly that this diagnosis is correct and remains so, and that the plaintiff suffered only mild soft tissue injury at the time of the accident, with any symptoms which he presently suffers from being attributable to general degenerative changes unrelated to the motor vehicle accident.

Dr Warren provided a report in January 1995 to the plaintiff's solicitors, in which she reported further attendances at the clinic in relation to the plaintiff's back in January and July in 1993, and in February, March, April (twice) and June 1994. She said

"Findings on examination & x-rays of his lumbosacral spine support the diagnosis of lumbospondylosis which has become symptomatic since the accident of 9.9.91 and therefore probably related. However at some point it probably would have become symptomatic without significant trauma, as it is due to general 'wear and tear'."

This is, in my opinion, an appropriate finding. I note that Dr Andrea, in a report to the defendant's solicitors of November 1994, formed the view that the plaintiff suffered

"...relatively minor soft tissue injuries which are superimposed on some fairly marked arthritic changes in the L3 to L5 vertebra. I think that those injuries have largely recovered but he has been left with some lower lumbar backache, mostly in the muscles at the sides of the spine."

In relation to the degenerative change, Dr Andrea said in that report that

"It is likely that Mr Cheetham would be as he is now had the accident not occurred."

In a later report of December 1995 Dr Andrea was more specific, saying

"The accident seems to have shaken up his arthritis, causing it to give rise to symptoms a year or two earlier than it otherwise would have."

This view was challenged by Dr Griffith, a consultant surgeon. He agrees that the accident rendered the underlying degenerative condition symptomatic, but said

"I would contend that Dr Andrea's statement that he would in any case have been forced to retire by the onset of severe arthritic pain cannot be sustained on the basis of probability."

Dr Griffith said

"The index accident is the only identifiable factor which has led to decompensation of his lumbar spine and disabling pain since. I would certainly concede that there was significant pre-existing arthritis but this does not appear to be gross and indeed appears on plain film to be consistent with his years."

I am satisfied that the accident caused both soft tissue injuries, and aggravated an underlying degenerative condition which had previously been asymptomatic. While I accept that Dr Warren's view that this condition would at some point have become symptomatic, I am not satisfied, having had consideration to the views of Dr Andrea and Dr Griffith, that this condition would have rendered the plaintiff unfit for general building duties by 1995.

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 respect of general damages, the plaintiff presents as a man who, prior to this accident, was fit and active. He was committed to his work, and had interests in outside building jobs. He engaged in bushwalking. As a result of the accident he now is restricted in his activities, and is no longer able to engage in outside building work, which is frustrating. In relation to his own projects, he is frustrated at his reduced ability. He can perform tasks, but at a markedly slower pace. While much of his pain is related to a degenerative condition, this was rendered symptomatic by the accident and the plaintiff has lost the chance of continued pain free years. I award $25,000 by way of general damages. Ascribing $15,000 of this to past loss generates interest of $1,798, making a total general damages award of $26,798.

The plaintiff's claim for damages in respect of loss of earning capacity is made in respect of his loss of opportunity to undertake work in addition to his regular employment as a TAFE teacher. He has in fact worked continuously in his position as a TAFE teacher since the accident. He was required to take time off during 1994 when he was diagnosed with a tumour of the brain. Surgery was required which, fortunately, has been successful, and has left the plaintiff with no ongoing disability. His father passed away in 1995, and he took further time off to return to England and attend to family affairs. But he has otherwise been able to remain in full time employment. The plaintiff expects that, as a result of restructuring and other changes at the TAFE, he will not be continuing in his job to normal retirement age. But he has made no application for transfer to alternative positions, and I am not able to find that this is related to his accident caused injury.

The plaintiff claims a buffer for both past and future loss of income from alternative employment. The plaintiff gave evidence that his employment as a TAFE teacher in building permitted him to undertake additional employment in the building industry, and he said that this was encouraged, as it ensured that the teaching staff kept their skills in touch with the industry.

The plaintiff had found employment, which was well remunerated, as a Clerk of Works. He had continued with one job after the accident, but said that his disabilities were such as to prevent him from undertaking further such work. This is consistent with the medical evidence.

The evidence establishes that the plaintiff had earned about $10,000 net each year that he performed Clerk of Works duties. Counsel for the plaintiff conceded, correctly in my view, that this is not a case where it is appropriate to take this as a fixed annual loss. Evidence from persons involved in the building industry establishes that, while the plaintiff undoubtedly is skilled and well regarded, work availability will vary. The plaintiff also claims that he could have involved himself in part time building activity. I note that, in the one major project on which evidence was given of Mr Cheetham's involvement, the precise nature of the payments received was unclear. However, I accept that Mr Cheetham has lost a capacity to engage in this type of activity, and there was evidence that a colleague would have sought his services to assist with a project, on a commercial basis, were it not for the accident. I am satisfied that this is a genuine loss, and that an award of a buffer of $30,000, within the range argued for by counsel for the plaintiff, is appropriate in respect of past loss of earning capacity, inclusive of interest.

Counsel for the plaintiff suggested, in my view correctly, that it is appropriate to adopt a similar approach to future wage loss, and he suggested a range of $30,000 - $40,000 as an appropriate figure. While this is the correct approach, I must bear in mind in looking at future loss the impact of the plaintiff's pre-existing degenerative condition. There is evidence from doctors qualified by the defendant that this would have caused the present level of disability by now. Dr Griffith, for the plaintiff, says that this conclusion cannot be drawn on the balance of probabilities, and while I think that this is correct, it is of course not necessary or appropriate to use such a test in relation to future events (Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638).

In relation to the plaintiff's future economic loss, I award the sum of $20,000, which is reduced to take account of the chances that his degenerative condition would have advanced to the point of disability over the last years of his normal working life.

Extensive valuation evidence was submitted relating to the plaintiff's purchase of a home in Reid. The plaintiff purchased this house in February 1993, after the accident, and it was his intention to renovate it and sell it, at a time when the market was strong. As a result of his disabilities he has not been able to undertake the renovations as quickly as he expected, and the evidence indicates that the market has fallen. I am not satisfied that such a loss, if loss there be, is compensible, and this matter was not at the end of the day pursued in submissions.

Out of pocket expenses in the sum of $4,285.60 were claimed. Issue was taken over the sum of $699 for an orthopaedic bed. The plaintiff's evidence was that he was forced to sleep on the floor prior to the purchase of the bed, because his previous bed, which he would not otherwise have replaced, was unsuitable. I am satisfied that the sum of $4,285.60 is appropriate for out of pocket expenses and I award this amount.

A claim for future out of pocket expenses is made, which the plaintiff suggested ought be at $1,000, and I think that this is appropriate in all the circumstances.

There was a claim particularised for a Griffiths v Kerkemeyer claim, but I am not satisfied that this is made out. The paintiff has continued in his full time employment and activities of independent living. This matter was not pursued in addresses.

This amounts to a total award of $82,083.60, which I consider to be appropriate in all the circumstances.