William Harvey v Richard Mcgee [1997] ACTSC 86 (31 October 1997)

SUPREME COURT OF THE ACT

WILLIAM HARVEY v RICHARD McGEE
No. SC 527 of 1994
Number of pages - 8
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 cervical spine - Ongoing disability - Chronic Pain Syndrome -No Issue of Principle.

HEARING

CANBERRA, 8, 9 and 10 October 1997 (hearing), 31 October 1997 (decision)

31:10:1997

Appearances

Counsel for the Plaintiff: Mr B Salmon QC

Instructing Solicitors: Wood Fussell

Counsel for the Defendant: Mr M McDonogh

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

Order:

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $200,815.86.

2. The defendant pay the plaintiff's costs.

THE COURT NOTES THAT:

3. The defendant is to be given credit for monies paid to or on behalf of the plaintiff in the sum of $16,945.65.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred in the early hours of the morning of 1 March 1994 at Lyneham in the Australian Capital Territory. The plaintiff, who was born in November 1945, was at the time a taxi driver in Canberra. He had pulled to the side of the road in Mouatt Street in Lyneham and was stationary with his interior light on and his foot on the brake. He was consulting his street directory. The plaintiff noticed the lights of a vehicle approaching from behind. He says that he noticed the vehicle drift towards the left of the road. He touched his brake lights to indicate his presence, but the car continued to veer towards him. He says that he braced himself against the steering wheel for the inevitable impact.

On these facts liability is easily established, and was not in contest in the hearing of the matter. The issue in contest was the extent to which the plaintiff's accident related injuries impact on his earning capacity. Much of the contest turned on consideration of the plaintiff's current activities.

The plaintiff was educated to early secondary level in Victoria, and left school at the age of 14, and became an apprentice jockey. As he grew, his stature was not appropriate for this calling, and he worked in training horses, both for flat racing and trotting. At the age of 21 he moved to the United Kingdom for a period, where he worked with horses. He returned to Australia in about 1969, and worked as a delivery driver in the meat business. In 1980 he moved to Canberra, where his brother is a builder. He worked as a labourer and plasterer for his brother for some 2[Omega] years before obtaining a clerical position in the Department of Defence, in their building maintenance area. He was a public servant from 1983 to 1991, when he left to establish a wholesale meat business in Canberra.

This business was not a success. The plaintiff turned to taxi driving as a means of supplementing his income, and as the business deteriorated he increased his hours as a taxi driver. By the time of the accident the meat business had effectively failed, and the plaintiff had determined to abandon it, and was only doing some very minor work to wind the business up. He had been driving taxis on a full time basis, involving some 60 hours of work, for the six to eight months before the accident. The plaintiff gave evidence, which was not contradicted or challenged, that in 34 years he had only been unemployed for one week. I am satisfied that he has always been a hard worker.

The impact of the collision was severe. The plaintiff says that the steering wheel collapsed, and his seat back broke. He described the impact as an "almighty crash". He says that his first concern was whether anyone in the other car was hurt, and then he turned his attention to the gas tank in the rear of his vehicle. He was concerned at the risk of an explosion if the rear end collision had ruptured the LP gas tank situated in the boot of the taxi. He said that with these matters he didn't really notice his physical condition at the time.

He called the owner of the cab, who attended the scene. The taxi was towed away, and the owner dropped the plaintiff off where he had parked his own car. The plaintiff then drove home and went to bed. He said that when he woke up his legs, arms, back and neck were stiff and sore, but he went to work that evening. He had a prior appointment to see his general practitioner the next day, which he attended.

His general practitioner, Dr Meiklejohn, reported on 23 April 1994 that Mr Harvey presented on 2 March 1994. He reports

"He complained of a stiff sore neck, headache, forearm pain and pain in the thighs."

His clinical findings were that

"...his cervical spine was tender bilaterally at C3 to 7 and there was bilateral trapezius tenderness. His range of movement was tender at the extremes and stiff. There was no neurological change in the upper limbs."

Dr Meiklejohn saw him again on 7, 17 and 24 March. During this time he had had physiotherapy. His arm improved, but he continued to have neck pain and headaches. Although he had worked up to the 24 March appointment, the doctor then advised him to have time off, and he remained off work from 25 March to 8 May 1994. He then resumed work, but took the period 30 May to 10 June 1994 off. The plaintiff said that he had no form of workers compensation (although the taxi owner for whom he was driving did pay him the sum of $1,000), and that although he was in continual neck pain he had no alternative but to try to continue to work to earn money.

Dr Meiklejohn's reports show that the plaintiff was continuing to complain of neck pain and headaches through 1994, and limitation of movement and difficulty in prolonged sitting. He noted in a report of 16 August 1994 that the plaintiff had found significant relief from acupuncture treatment, which allowed him to function more freely.

The plaintiff continued to work until February 1995. At this point he says that the pain had become too much for him. He says that he took some time off over Christmas, but that he was unable to continue beyond that time. He saw Dr Corry, a rehabilitation consultant, in March 1995. He recorded Mr Harvey's complaints, and concluded

"The history of injuries is consistent with Mr Harvey sustaining soft tissue trauma to the neck and shoulder region, and to a lesser extent the lower back, as well as jolting injuries to the arms and legs in a motor vehicle accident as described."

Dr Corry noted that the plaintiff was obese, which contributed to his difficulties. He recommended a regime of exercise, and concluded

"I think it is reasonable for Mr Harvey to aim at some lighter driving employment such as light delivery or courier duties in the future and would anticipate that he should be ready to seek such employment in the next six to eight weeks."

The plaintiff was also referred to the rehabilitation service at Woden Valley Hospital. He saw Dr Dunlop initially on 13 April 1995. Dr Dunlop saw the plaintiff through 1995 and 1996. His reports state that Mr Harvey was co-operative and genuine in his efforts to rehabilitate and re enter the workforce. His counsel urges that these comments be taken into account to show a picture of a man genuinely seeking to resume remunerative employment.

Mr Harvey said that through this period he was hoping that he could resume full time work, or at least begin to work again. In August 1994 the plaintiff borrowed funds to purchase a home unit in a development built by his brother in Gordon. He thus had ongoing financial commitments, and no source of ongoing income. This led to increasing anxiety and worry, and his general practitioner put him on Prozac.

In October 1995 Mr Harvey attended the Commonwealth Rehabilitation Service. An unpaid work trial was arranged for him at the Department of Defence, undertaking basic clerical duties. Mr Harvey described this as learning about the operation of printers and duplicators. He said that he enjoyed being back in a work environment, but that he was forced to take frequent absences due to his pain. The rehabilitation programme was terminated in April 1996. Following this a Commonwealth Medical Officer deemed him to be totally incapacitated for work. The reasons for this decision were not before me, but counsel agreed that the fact of this diagnosis could be recorded.

Mr Harvey was also assessed in July 1995 and July 1996 by Dr Scott, an occupational physician. In his report of August 1996 he concluded that

"Mr Harvey has, in my opinion, been left with chronic soft tissue injuries to his neck and lumbar area, which has now moved into the chronic pain syndrome situation."

Medical examinations conducted for the defendant confirmed that the plaintiff has suffered soft tissue type injuries. Dr Keiller, in a report of 7 May 1997, concluded

"He has genuine discomfort, and at times pain, particularly in his neck. His progress and motivation are marred by an emotional illness, but there was no obviously inappropriate reaction to my examination. His treatment should remain conservative and supportive. He does not need further investigation, other specialist referrals or surgical intervention. His prognosis is poor. He will not work as a taxi driver again; nor will he be able to engage in any heavy activities. He would, however, be fit for light work, as when he was employed on photocopying; and that immediately."

Dr Andrews examined the plaintiff on two occasions, and concluded

"I think his level of disability is fairly mild but for many reasons, largely psycho social, I think his present level of function is not going to improve."

(Report 8 May 1997). Dr Andrea reported on the same day, and said

"I could find no physical evidence to prove significant permanent damage had resulted from his accident and I would have expected him to have improved a great deal by now. However, I think Mr Harvey is now permanently incapacitated but I do not believe this can be blamed on his 1994 accident."

Professor Jones, Director of the Department of Rehabilitation Medicine at Prince Henry Hospital, examined the plaintiff twice for the defendant. His conclusion was set out in his report of 10 April 1996, that

"Mr Harvey has suffered soft tissue injuries in an alleged motor vehicle accident on 1/3/94. I would accept that he has some neck discomfort associated with those injuries. He has, however, developed various psychological reactions to his perceived impairments for which he is taking anti-depressants and various pain relieving medications. I note also that he has developed diabetes, hypercholesterolaemia and he suffers with psoriasis, sleep apnoea and claustrophobia (this occurred when he was to have an MRI examination). In my view Mr Harvey is independent in personal care and most activities of daily living albeit slowly. He does have potential, in my opinion, for clerical work for up to 20 hours per week and perhaps taxi driving for a similar period of time. One is cognisant of his obesity and multiple medical problems and that he has been recommended for a Disability Support Pension."

I am satisfied from the plaintiff's evidence, which is unchallenged on this point, that his diabetes and cholesterol problems are well under control and present no barrier to employment. I have no evidence to justify a finding that psoriasis or sleep apnoea would present any barrier to employment.

To the extent that the defendant's doctors consider that a psychological factor may overlay the plaintiff's work capacity (which would itself, on the plaintiff's case and in the opinion of Mr Parsons, a psychologist, be related to the accident), it is strongly excluded by a report provided for the defendant from Professor Mendelson, a psychiatrist, who concludes that

"...there is no psychiatric contra-indication to Mr Harvey undertaking gainful employment within the limitations of his physical condition at the present time."

Taking into account all of the medical evidence I am satisfied that the plaintiff continues to suffer pain in the neck and shoulders from soft tissue injuries caused by the motor vehicle accident. The principal question is the extent of these disabilities.

Mr Harvey moved to Melbourne in late 1996 after he had been described as permanently unfit for work by a Commonwealth Medical Officer, and lives with his mother. He said that he was forced to do this as he was no longer able to meet the payments on his home unit. He now rents this property, with the income going towards meeting his commitments. Mr Harvey was diagnosed some years ago with diabetes. His cholesterol is also a concern. While he has been able to control his diabetes with diet alone, he must try to watch his weight (which he says has been a problem for many years). His doctors all tell him that he must exercise if he can. He found that exercise in a swimming pool minimised aggravation to his neck. When he was in Canberra he undertook exercise by way of walking in a swimming pool, and out of pocket expenses for hydrotherapy at Woden Hospital and expenses at the Tuggeranong Pool have been met by the insurer in the past. When he moved to Melbourne, however, he says the insurer refused to provide funding for similar programmes there.

The plaintiff's mother lives about 1 kilometre from the premises of a friend of the plaintiff adjacent to Flemington racecourse. The friend is a clerk of the course and horse broker, and maintains stables and training facilities. Mr Harvey gave evidence that it is his practice to walk down to the stables most mornings, and spend time there. He will rise early, arriving at the stables around 6 am. He gave evidence in chief that he would undertake some light activities while at the stables. This was the subject of extensive cross examination. At times the plaintiff would engage in quite stubborn resistance to questions from counsel about his activities, or refuse to concede matters that had in fact emerged in earlier questioning.

The issue here was really whether the plaintiff's activities at the stables amount to a degree of activity higher than the plaintiff has revealed to his doctors. On the plaintiff's case he goes down to these premises for the exercise, because of his long-standing interest in horses, and for the social enjoyment of being around horses and their trainers. He acknowledged - sometimes under prolonged cross examination - that he has engaged in activities such as carrying a bucket of feed or water (although he said only half full), sweeping or mucking out, and that he has ridden a horse. He said in chief that he had ridden a horse a couple of times. By the time cross examination was concluded this had extended to 6 or 7 times. We had a long exchange between Mr Harvey and counsel over the meaning of "a couple". At the end of the day, however, I am not persuaded that Mr Harvey's activities are more than a passing of the time. He has never presented as totally unable to care for himself or engage in any activity. He claimed that he never concealed activities from doctors, and indeed there are references to his habit of visiting these premises in reports obtained by the defendant. At the same time, it is clear that the plaintiff has not fully explained the nature of his activities, including his ability to ride a horse on occasions.

All of these activities, however, do not negate the plaintiff's claim. He says that he has no particular pain in riding a horse - no more than walking. He says that he rides at no more than a trot, and this is uncontradicted. I note that he is a very experienced person around horses, and as his counsel submitted, the extent to which a good and experienced rider would be discomforted by neck pain in riding would be quite different to that of a person with less skill and experience.

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 this case Mr Harvey's claim is to be assessed on the basis that the motor vehicle accident caused soft tissue injuries as described above, which have caused ongoing neck and shoulder pain. He has given up some activities which were, before the accident, of great interest to him, such as involvement in Australian Rules football as a spectator and club official. As a result of these injuries he has had periods of great anxiety which, although falling short of diagnosable psychiatric illness by the time of Professor Mendelson's examination in September 1997, must sound in general damages. I must, however, be also mindful that there is no injury apparent on radiological examination.

In relation to general damages arising from ongoing pain resulting from soft tissue injury, I award the sum of $27,000. As the condition is likely to be ongoing I assess half of this to past loss, generating interest of $986, a total award for general damages of $27,986.

The plaintiff's claim for past economic loss is based on an arithmetical calculation of wage loss to date of trial, assuming that the plaintiff would, but for the injury, have continued to work as a taxi driver. I am satisfied that the basis of these calculations, that is, a claim for average nett earnings of $358.90, is appropriate and made out on the evidence of the plaintiff's past earnings from taxi driving. I am satisfied that the plaintiff had 6 weeks off work in the period up to February 1995, and that this generates damages of $2,153.40. The plaintiff worked from June 1994 to February 1995, and I am satisfied that the evidence establishes that in this period his average nett earnings were $373.40. The plaintiff claims this sum for the period from 6 February 1995 to trial. I am satisfied that during this period the plaintiff undertook a range of activities designed to achieve rehabilitation, including an unpaid work placement at the Department of Defence in the early part of 1996. I am mindful of the reports from Dr Dunlop which state that the plaintiff was committed and genuine in his efforts to rehabilitate himself. I also take note of the fact that the plaintiff was advised by a Commonwealth Medical Officer that he was totally incapacitated. Taking all of this into account, and also being mindful of his activities at the stables, which I have found fall short of evidence of economic activity, I am satisfied that it is appropriate to adopt an arithmetic approach to the plaintiff's wage loss to date of trial.

This amounts to a period of 132 weeks, which at a rate of $373.40, generates a sum of $49,288.80. This amounts to a total award for past wage loss of $51,422.20, which generates interest running from February 1995 on the larger sum of $6,795, and $782 on the earnings lost from the date of the first absences from work. This amounts to a total award of $59,199.20, which I award. I note that $7,600 has been paid to the plaintiff by the defendant's insurer by way of past wage loss.

The plaintiff claims a sum for future wage loss based on an ongoing total loss of earning capacity. Taken over a period of 14 years this amounts to a claim for $223,367.88, which discounted by 15% for the vicissitudes of life would amount to a claim for $189,862.70. Counsel for the plaintiff did concede that these sums were calculated on the basis of the plaintiff's earnings over a 60 hour week, and that it would be reasonable to expect that, as the plaintiff approaches the end of his working life, he would be likely to work normal hours, and he conceded that some higher discount would be appropriate to reflect this factor. This would be appropriate if a strict arithmetical approach was to be adopted.

I note that there is evidence that the plaintiff retains a residual work capacity. I am not satisfied, taking into account all of the evidence, that the plaintiff has no residual capacity for work. I have referred to the opinions of doctors who state that the plaintiff has a residual capacity for clerical, courier, or taxi driving work, ranging up to 20 hours a week. Counsel for the plaintiff stressed in argument that where a claimed residual capacity exists, it is necessary for the defendant to show that there is real work available. While this is correct as to principle, the residual work capacity referred to in this case relates to part time work in the taxi industry. The plaintiff's evidence was that he had started to drive on a part time basis while running a meat business, and that his hours subsequently increased. There is thus evidence that the plaintiff has been able to obtain part time taxi driving work with flexible hours in the past.

The plaintiff's claim for out of pocket expenses includes his travel expenses for attending rehabilitation programs while in Canberra, and these range to hundreds of kilometres in a week. He gave evidence that he drove to Melbourne, and has driven from Melbourne to Canberra and return, although he said that he spent some days recovering after each trip. Nevertheless, this supports the view that the plaintiff has a substantial residual capacity. Taking all of this into account, I think that if an arithmetical approach to the plaintiff's future economic loss is to be adopted, a very substantial discount would be appropriate, taking into account the likelihood of his hours reducing in any event, and his substantial residual capacity, assessed as up to half normal hours. Once such a range of factors need be taken into account, the reliability of an arithmetic approach becomes problematic. In respect of future economic loss I award $80,000 by way of a general buffer taking into account all of the above factors.

The plaintiff claims out of pocket medical expenses in the sum of $20,237.56. This includes a substantial sum of some $15,000 by way of acupuncture. I am satisfied that these expenses have been reasonably incurred by the plaintiff in attempting to gain relief. I award $20,237.56 by way of past medical expenses. I note that the defendant's insurer has in fact paid $9,345.65 by way of medical expenses to date.

The plaintiff has also claimed miscellaneous out of pocket expenses. These amount to $247.10 for purchases of a reading frame, soft collar, and several sessions of exercise at a commercial swimming pool. This sum is appropriate, and I award this.

The plaintiff has also claimed a precise sum by way of travel expenses to and from medical and rehabilitation appointments in Canberra in the period from the accident to the time he moved to Melbourne. These amount to 18,820 kms at a claim rate of 20c per kilometre, a total claim of $5,646. This sum is appropriate.

The plaintiff makes a claim for 2 sessions of dry cleaning in 1996, one lawn mowing in 1996, and 14 sessions of house cleaning also in 1996. I am not satisfied that the plaintiff has demonstrated that his soft tissue injuries were such as to preclude him from providing for his general self care requirements, and indeed this would, in my view, be contrary to the medical evidence. I decline to make any award for this claim.

This amounts to a total award for past out of pocket expenses of $26,130.66, which I award. These expenses have been incurred at irregular rates over the period since the accident, and, noting that this sum reflects a deduction for expenses paid by the defendant insurer, I decline to award interest on this sum.

In relation to future out of pocket expenses, the plaintiff claims for ongoing acupuncture at $60 per week, exercise and hydrotherapy at $400 per year, and pharmaceuticals at around $90 per month. Of this, $55 is for Prozac, which the plaintiff said he is now reducing his level of consumption. I note that the total claim for past pharmaceutical expenses has been $411, or something well under $10 per month.

I am not satisfied that the expert medical evidences establish an ongoing reasonable need for acupuncture at the level claimed. However, the plaintiff does obtain some relief from this and ongoing use of hydrotherapy. I award the sum of $7,500 by way of a discretionary sum for all future out of pocket expenses. This sum does not include any award for provision of personal care services, which I have found not to be established on the whole of the evidence before me.

This amounts to a total award of $200,815.86, which I consider appropriate in all the circumstances and which I award, plus costs.

I note that the defendant has made payments in the sum of $16,945.65 for which credit is due.