Rodney Bruce Kneipp v Ian Robert Halliday [1998] ACTSC 170 (13 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident - Soft
tissue injury to lower back - Aggravation of previous underlying degenerative
condition - Low level nuisance value symptoms - No issue of principle.

  

  

   CANBERRA, 2 March 1998 (hearing), 13 March 1998
(decision)

   #DATE 13:3:1998

  

   Counsel for the Plaintiff: Mr R Royle

   Instructing Solicitors: Hunt & Hunt

   Counsel
for the Defendant: Mr F G Parker

   Instructing Solicitors: Deacons Graham & James

  

  

   THE COURT ORDERS THAT:

  


  1. Judgment be entered for the plaintiff in the sum of $45,067.00.

   2. Costs be reserved.

  

  

   MASTER T. CONNOLLY

 


   This is a claim for damages for personal injuries arising from a motor
vehicle accident which occurred in Fyshwick, in the Australian
Capital
Territory, on 26 November 1993. The plaintiff was at that time the manager of
a second hand furniture store in Fyshwick,
and was proceeding west along
Newcastle Street in Fyshwick, approaching the intersection with Lyle Street,
which is controlled by
a roundabout. The defendant was proceeding in a
northerly direction along Lyle Street, and failed to give way to the
plaintiff. The
plaintiff's Commodore sedan collided with the rear of the
defendant's truck. Liability was admitted, and the matter proceeded before
me
by way of an assessment only.

  

   The collision was of some considerable force, and immediately after the
accident the plaintiff's
car burst into flames. The plaintiff said that he was
shaken by the impact, but that his immediate concern, understandably, was to
get himself out of the vehicle safely, which he was able to do. Police and
emergency services attended the accident, and the plaintiff
accompanied a tow
truck operator who took his vehicle to a repairer, and then returned to work.
The next morning he says that he
noticed stiffness and soreness in the lumbar
region, but he continued with his duties. As the manager of a furniture
business he
was involved in some lifting and carrying, but said that he was
able after the accident to try to minimise his involvement in such
activities.
The stiffness and soreness remained, and after about six weeks he consulted a
chiropractor, on the advice of a friend.
The plaintiff undertook chiropractic
treatment for some six weeks. He has never received medical treatment in
relation to his back
condition the subject of this claim.

  

   The plaintiff has been examined by specialist doctors for the purposes of
medico legal
assessment at the behest of both his own solicitors and the
defendant. There is broad agreement between the doctors that the plaintiff
has
an underlying back condition of pars interarticularis defects and mild
spondylolisthesis in the lumbar area. There is disagreement
between the
doctors on the impact the plaintiff's motor vehicle accident had on this
underlying condition. The plaintiff says that
he never complained of back pain
before the accident, and he has never been challenged on this point. I am
satisfied that his underlying
degenerative condition was quite asymptomatic
prior to the motor vehicle accident.

  

   The plaintiff was born in July 1971 at
Tamworth in New South Wales. He
completed his secondary education to sixth form in Tamworth, and then
undertook successfully a diploma
in business studies at Metropolitan Business
College. At the time of the accident he was 22 years of age, and in a
managerial position.
He continued in his employment as the manager of a second
hand furniture store which specialised in second hand government office
style
furniture after the accident, but left in May 1994 to pursue a business
opportunity on his own behalf. In June 1994 he established
his own business,
initially with a partner but since late 1994 on his own, repairing chairs.
This business, Capital Chair Repair,
specialises in repairs to office chairs
and restaurant chairs. The plaintiff described it as a successful business,
and was quite
open in saying that his reason for leaving his managerial
employment had nothing to do with the accident, but was his own decision
based
on his desire to establish his own business.

  

   He continues to work full time on his own account in this business. He
picks up chairs from clients, undertakes the necessary repairs, which involves
lifting the chairs onto a bench at his workshop premises
and undertaking the
necessary structural repairs and re upholstery work, and delivers the
refurbished chairs back to his clients.
He says that he normally works a 30 to
40 hour week. No economic loss claim was particularised for loss of ability to
work full hours,
and the plaintiff conceded that he was able to work full
hours to complete the work that needed to be completed. He said that after
a
long day his back may become stiff and sore, and that he would sometimes take
an afternoon off.

  

   The plaintiff's claim for
economic loss is based on the loss of earnings
that he claims he could have received in part time weekend work assisting a
removalist.
He says that before the accident he did work for a removalist
company on a casual basis, but that since the accident he has been
unable to
undertake this work. He also makes a claim by way of a buffer for the general
disadvantage he would suffer in the open
market.

  

   The plaintiff has been examined on three occasions by Dr Corry, a
consultant in rehabilitation medicine, whose reports
were tendered by the
plaintiff. In his report of 1 February 1996 he stated that the plaintiff

  

  

   "...states that he has
an ache in the low lumbar region which is present at
least 50% of the time. Usually however, it is a mild discomfort which does not
particularly limit his activities. If he does some heavier work, pain will
increase in severity and may be at a higher level for
a couple of days."

   Dr Corry found a full range of apparently pain free movement in the lumbar
spine.

  

   In his second report
of March 1997 Dr Corry reported that

  

  

   "...since I last examined him Mr Kneipp reports that he has had continuing
disability,
but that there has been a gradual improvement." Dr Corry noted
that x rays showed a low level of spondylolisthesis at L5/S1 and an
L5 pars
interarticular defect. His conclusion was that

  

  

   "Mr Kneipp continues to make satisfactory recovery from a back
injury,
sustained in a motor vehicle accident on 26 November 1993. Continuing symptoms
are relatively mild and are not causing any
major restrictions in his general
activity levels."

   Dr Corry noted that in his opinion the plaintiff was unfit for employment
as a furniture removalist when an offer of such employment was made in late
1994.

  

   In his third report of September 1997 Dr
Corry said

  

  

   "There is now very little abnormality to find."

   He noted that the plaintiff

  

  

   "...is now aware
of back pain and discomfort in the lumbar region, perhaps
one day out of each week. Provided he is fairly careful with activities
he can
keep pain at a very tolerable level. He does all his normal activities, except
that he is careful with manual handling. He
can lift a piece of furniture such
as a medium size chair, but if he does this repetitively then he will almost
certainly have some
aggravation of pain."

   Dr Corry confirmed his view that there was an underlying condition which he
described as bilateral pars
defects at the lumbo-sacral level (spondylosis),
and there is an associated grade on spondylolisthesis. He expressed the view
that
many persons have such a condition with no symptoms, and that the trauma
of the accident could cause the present symptoms.

  


  The plaintiff also tendered a series of reports from Dr Evans, a physician.
He expressed the view that the trauma of the accident
caused the plaintiff's
pre existing condition to become symptomatic.

  

   The defendant relied on reports from Dr Kitchin, an
orthopaedic surgeon,
and Dr Nield, a consultant surgeon. Dr Kitchin in his report of October 1997
said

  

  

   "The patient,
in a motor vehicle accident in November 1993, had a general
shake up and developed lumbar pain as an ongoing symptom. The normal
expectation for this sort of pain following this type of injury, would be for
it to clear. However, investigations subsequently showed
via x ray and CT
scanning, that he has a pre existent L5/S1 spondylolisthesis of mild grade 1
severity associated with pars interarticularis
defects bilaterally. There is
also suggestion of some degeneration of the associated L5/S1 intervertebral
disc. In my view, the effects
of the injury have worn off. The ongoing
symptoms are related to underlying defects of a spondylolisthesis and
associated disc degeneration
at this level. The patient remains fit to work in
his present capacity. His symptoms are likely to be ongoing and to be noticed
more
with heavy physical activity involving the lumbar spine. In my view, the
ongoing symptoms are due to the underlying pre existent
spondylolisthesis
L5/S1 and the associated L5/S1 intervertebral disc degeneration."

   Dr Nield also expressed the view that the
accident would have resulted in
musculo ligamentous strain which should have resolved, and that any ongoing
incapacity was purely
due to the underlying condition.

  

   Dr Stubbs reported for the defendant in October 1996. He concluded that

  

  

   "His
present clinical examination reveals what one would term nuisance
symptoms, principally aggravated by repetitious activities, particularly
long
car drives."

   Dr Stubbs expressed this view before examining x rays, and in an addendum
to his report noted the existence
of the underlying condition referred to by
the other doctors. He said

  

  

   "Spondylolisthesis is a developmental anomaly of
the spine that typically
occurs in early adolescence. It is frequently asymptomatic, many patients will
never know they have a problem.
Symptoms usually occur by the end of growth.
Symptoms after that time may occasionally be exacerbated by injuries but
generally reflect
degenerative changes from other causes in the spine.

   None of the doctors whose reports were presented into evidence were
required
to attend for cross examination.

  

   Taking into account all of the medical evidence, as well as the plaintiff's
uncontradicted
evidence that he had never experienced back pain before the
accident, I am satisfied that the motor vehicle accident rendered his
previously asymptomatic condition symptomatic. It follows that I would
attribute his present level of disability to the motor vehicle
accident.

  

   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 the plaintiff is to be assessed on the basis that his present
level of disability is the result of the accident.
Counsel for the defendant
argued that, should I so find, I should nonetheless assess damages at only a
modest level given what he
described as only nuisance level symptoms. Taking
into account all of the medical evidence, as well as the evidence of the
plaintiff
and his partner, I conclude that the plaintiff's level of incapacity
is at the low end of the spectrum of back injury. I generally
accept what the
plaintiff said both in his evidence and to the various medico legal experts
about his back and its impact on his
activities. In his evidence in chief he
said that he had difficulties in driving long distances and would need to
stop, but he agreed
in cross examination that his description of these
difficulties to Dr Stubbs was more accurate. There he said that he squirms in
his seat and adjusts his position while driving, but does not have to stop the
car. He obtains relief when making normal refuelling
or food stops.

  

   Dr Corry's reports paint a picture of a mild level of back pain which has
been improving in recent years.
This is broadly consistent across the reports
prepared by experts for both the plaintiff and the defendant. The plaintiff
has never
obtained medical treatment for his pain, and undertook only a
relatively short period of chiropractic treatment some four years ago.
He has
never had to take time off work, other than taking some afternoons off, but
not so as to put him behind in his work. He continued
in a full time
managerial role until he left in order to set up his own small business. He
has made a success of this business.

  

   The plaintiff has not engaged in competitive sports since the accident, but
he acknowledged that he had dropped out of these
activities due to pressure of
work before the accident. He said that he hoped that he might be able to get
back into indoor cricket
at some time in the future. His partner tends to do
the heavier household duties such as vacuuming and cleaning the bath. A
flatmate
tends to do the heavier gardening activities. He says that he cannot
stand in a queue for a long period, and will squirm if sitting
for a long
period, for example at the movies.

  

   I note that the medical evidence indicates that, while the plaintiff's
symptoms
have undergone some improvement since the accident, they are now
likely to remain at about this level for the rest of his life. He
is still a
relatively young man of 26, and so will have to live with these low level
nuisance value symptoms for a very long time.

  

   In relation to general damages, I award the sum of $18,000, of which $9,000
is attributable to past loss, making a total
award of $18,774.

  

   Out of pocket expenses were agreed at the hearing in the sum of $723. On 10
March Counsel for the defendant
delivered to my chambers, with the consent of
the plaintiff's solicitors, a document which pointed out that of this
originally agreed
sum, $430 was attributable in fact to radiological
examinations conducted for medico legal purposes. Such expenses are properly
recoverable
as legal expenses and not out of pocket treatment expenses. It is
thus appropriate that the plaintiff recover out of pocket expenses
in the sum
of $293. Of this, the insurer is entitled to credit in the sum of $245.

  

   The claim for economic loss is based on
two aspects. The plaintiff does not
say that he is limited in his present ability to work a full week, and he does
not say that he
left his former employment because of the accident. He does
claim that, to the extent that he does continue to suffer a disability,
he is
entitled to a sum by way of a general buffer. The defendant argues that this
should be of a modest sum only in light of the
level of disabilities. My
finding is that the plaintiff's ongoing disability, while genuine and
attributable to the accident, is
indeed at a low nuisance value level.

  

   The plaintiff further claims that, but for the accident, he could have
undertaken part
time work on weekends for a furniture removalist. He had
undertaken this work before the accident, and it did involve heavy lifting
and
carrying. The evidence of Dr Corry which was not contradicted in the other
reports is that such work was unsuitable in 1994,
and I am satisfied that
ongoing heavy work would continue to be unsuitable for the plaintiff.

  

   Mr Hood, the principal of Hoods
Removalists, gave evidence for the
plaintiff. He said that he had known the plaintiff for some years, and had
provided him with casual
work before the accident. He said that the plaintiff
was an excellent reliable worker, and would have been high on his list of pool
casuals for weekend work, although as the plaintiff did not have a truck
drivers licence there were others who would be first on
call. He said that
since the accident he could easily have provided the plaintiff with a day a
week of work, and he said that this
would pay at about $13-$15 an hour.

  

   The plaintiff claims an ongoing wage loss of about $100 per week, for both
the period
since the accident and for the rest of his working life. I am not
satisfied that this is made out. There was no evidence to establish
that the
plaintiff had, before the accident, worked every weekend for Mr Hood. In cross
examination Mr Hood conceded that he had
in a letter said that the plaintiff
had worked on "several occasions", although he now thought that it was most
weekends. No taxation
records or salary records were provided to show how
often the plaintiff worked. I also note that since the accident the plaintiff
has established his own business, which is proving successful. I am not
satisfied in all of the circumstances that the plaintiff
would in fact have
been expecting to undertake part time work as a furniture removalist every
weekend for the rest of his working
life as claimed.

  

   Nevertheless, the plaintiff has missed out on this opportunity for
occasional part time employment, and
his ongoing disability, while at a low
level and consistent with him establishing his own business involving
collecting, repairing
and delivering chairs, does impose some limitations on
his future career options. I am satisfied that this does call for a buffer
of
modest though appropriate proportions, reflecting the level of disability and
its likely duration.

  

   I would award the sum
of $5,000 for past economic loss as a discretionary
buffer inclusive of interest, and $20,000 for future economic loss, making a
general discretionary buffer for economic loss of $25,000.

  

   The plaintiff claims a discretionary buffer for future out of
pocket
expenses. This is based on the claim that an MRI scan may be needed in the
future, and the claimed cost of ongoing gym membership.
I note that the only
treatment expenses incurred to date have been in the sum of $293 for a period
of chiropractic treatment some
four years ago. Dr Corry, the plaintiff's own
expert, says that an MRI could further delineate any possible disc damage, but
said
in his last report that

  

  

   "...as Mr Kneipp is making such good progress, I do not think that such
investigation is warranted
at this time."

   Dr Corry makes no suggestion for future treatment.

  

   Dr Evans, who also reported for the plaintiff, made
no recommendation for
future treatment, and said in his report of June 1997 that

  

  

   "He has never seen any doctors about
this problem. He has occasional
Panadol tablets for the pain. He does not have physiotherapy or chiropractic
treatment, does exercises
for the back, does not wear a lumbar corset and does
not use a TENS machine. He has occasional massage treatment."

   The plaintiff
said that he had had occasional massage from a friend who was
qualified or from his girlfriend.

  

   None of the doctors who reported
for the defendant proposed any treatment,
although Dr Nield did say that the plaintiff should be on a continuing
exercise program
as a result of his underlying changes. The plaintiff did say
that he had done home exercises, which is consistent with Dr Evans'
report.

  

   The plaintiff tendered advertising material which established that gym
membership in Canberra can cost upwards of
$400 a year. This does not,
however, establish to the appropriate standard of proof that this is necessary
for the plaintiff. There
is no treating doctor, and the medico legal doctors
do not recommend a supervised gym programme. He has done home exercises. I am
not satisfied that any significant award for ongoing out of pocket expenses is
made out. As a discretionary sum, taking into account
all of the evidence
including the expenses to date, I award the sum of $1,000 for out of pocket
expenses.

  

   This amounts to
a total award of $45,067, which I award noting that the
defendant is to have credit in the sum of $245. I will hear the parties as
to
costs.