Dryden v Hopkins [1999] ACTSC 126 (19 November 1999)

Last Updated: 23 November 1999

Dryden v Hopkins [1999] ACTSC 126 (19 November 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury to neck and back - Ongoing pain and discomfort - Depression - No issue of principle.

No. SC 192 of 1997

Coram: Master T Connolly

Supreme Court of the ACT

Date: 19 November 1999

IN THE SUPREME COURT OF THE )

) No. SC 192 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GREGORY JOHN DRYDEN

Plaintiff

AND: LISTER GEORGE HOPKINS

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 19 November 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $128,352.52.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the evening of 16 May 1996 on the Federal Highway near the Yowani Golf Club in Canberra. The plaintiff was returning from his workplace to his home in Gungahlin, and was proceeding along the Federal Highway within the speed limit at about 70 kilometres an hour. He says that he noticed the defendant stationary at a give way sign on the entranceway leading out from the Yowani Golf Club, and assumed that it was safe to proceed. Without warning the defendant moved out onto the highway, colliding with the plaintiff's vehicle and sending it into a spin. Liability was admitted and the matter proceeded before me by way of an assessment of damages only.

2. The plaintiff was driven home after the accident by his wife and went to bed. At the time of the accident he was only aware of some pain to his right hand, but the next morning he awoke with neck soreness, and he attended his general practitioner, Dr Southi. After a few days he began to complain of pain to his lower back. The back pain, and to a lesser extent the neck pain have persisted, and have caused the plaintiff difficulties with his employment.

3. Mr Dryden was born in October 1957 and received his schooling in the Wagga district. He left school in 1973 to take up an apprenticeship in bricklaying. He worked in this field for about five years, but due to a number of changes of employer he never completed his formal trade qualifications. In 1978 he found employment as a barman at a local Australian Rules football club, and he has worked in this field up to the time of the accident, and thereafter, with the exception of a period from 1987 to 1991 where he worked as an insurance salesperson. In 1978 he met his now wife, and they have a son, born in 1984. In 1993 he was appointed the barman at the Canberra Bowling Club in Forrest, where he was employed at the time of the accident.

4. When the plaintiff first saw his general practitioner Dr Southi diagnosed mild to moderate musculo ligamentous strain to the neck, and prescribed analgesics and anti inflammatories, as well as physiotherapy. He was given two weeks off work. There was improvement to his neck following physiotherapy, but his lower back pain and stiffness did not resolve. He attempted to return to work after only a few days, but this aggravated his back pain. The plaintiff was the sole full time employee at the Bowls Club bar, and his duties, which extended over six days, involved quite a bit of heavy lifting of kegs, chairs and tables. After the attempted early return to work his doctor strongly advised him to take further time off work, which he did.

5. Dr Southi reported that the plaintiff began to experience features of mild depression while he was off work. The plaintiff says that, as well as his ongoing pain and discomfort, he was worried about his future employment. Despite ongoing treatment he sustained no real improvement, but he commenced a graduated return to work program on 14 October 1996. By November he was back to working full hours. I am satisfied from all of the evidence that the plaintiff was at all times keen to work, and indeed it seems from the medical evidence that this has perhaps been part of his problem, in that he has sought to return to full duties which involve heavy work that is no longer suitable for him.

6. A CT scan of his cervical spine in June 1995 reported

"C4/5 Level. There is a large central posterior disc protrusion and also bony narrowing of the neural foramina. C5/6 Level. There is a mild posterior bulge of the disc annulus but no nerve root compression."

7. MRI scans were also performed on his lumbar spine in 1996 and 1998. The 1996 report showed no abnormalities, but in 1998 annular bulging of the intervertebral disc at L3/4 and L4/5 was noted.

8. His back pain and neck discomfort continued through 1997. He was referred by his general practitioner to Dr McGrath, a rehabilitation physician, for a course of lumbar and neck strengthening exercises in the early part of 1997. The neck strengthening exercises were successful, in the view of both the plaintiff and Dr McGrath, but no similar improvement was obtained in his lower back. In mid 1997 he ceased these treatments and continued with a home exercise program to assist with his back.

9. He was referred to Dr Newcombe in August 1997. He formed the view that the plaintiff had

"...an aggravation of cervical spondylosis and a musculo ligamentous strain of the lumbar spine".

He expected gradual resolution of the symptoms in his report of October 1997. In a report of May 1999 he noted that neck problems continued, but at a lower level, and that his lower back pain also continued.

10. The plaintiff continued with his work as the barman and in effect bar manager at the bowling club through 1997 and 1998, but he reported increasing pain during the working week, and real difficulty with the heavier lifting jobs. He was distressed at his pain, and at what he perceived to be efforts to get rid of him. He understood that the club was small, and that the full time employee needed to be able to work to the full range of duties, which was becoming an increasing problem for him. He was frustrated at the lack of real improvement to his back. He had been prescribed Aurorix for depression in 1996 by his general practitioner, but this upset his stomach, and he did not persist with the treatment. In September 1997 he saw Dr Knox, a psychiatrist. He placed him on a small dose of Tryptonol, but noted in his report of October 1997 to the general practitioner that the plaintiff's

"...depression is very much secondary to his pain and altered circumstances, and I often find that antidepressant medication does not have a fully curative effect in such circumstances."

11. The Tryptonol also had an adverse reaction, and Dr Knox reported in November 1997 that further medication was unlikely to assist. He concluded that the plaintiff continued to suffer secondary depression from the ongoing effects of the accident.

12. The plaintiff continued to work as a barman, with increasing difficulties, and growing psychological stress. In early 1999 he heard, through his wife, of the opportunity to purchase a courier run as a franchisee of the Document Exchange organisation. In March 1999 he resigned from the bowling club, and purchased the franchise for $35,000, which included the van. He now works 5 days a week as a courier, mostly delivering documents and letters, with occasional parcels. He says the work suits him, and he is able to avoid any strains to his back. Both the plaintiff and his wife report an improvement in mood and disposition since the change in career.

13. The plaintiff was seen by Dr Andrews, consultant neurologist, for the defendant in May 1998. In his report he expressed the view that the problems could be from facet joint strain in the neck, but he acknowledged that the plaintiff

"...is having continuing significant symptoms with some degree of mild chronic pain."

He was also examined by Dr Keiller in 1998 and April 1999. In his report of May 1998 Dr Keiller noted that the plaintiff appeared depressed, and that his back was stiff and tender. He said

"I do not doubt that he has genuine low back discomfort, and at times pain."

In his 1999 report he noted an improvement in the depression, and that there was also some improvement in his back since his change of career. He said

"He can expect further improvement over the next one to two years, especially if he maintains good muscle function and mobility, and obeys the rules of back protection. He should not lift weights over 10kg. Any such lifts should be performed in the correct manner, and without any twist. He should avoid frequent repetitive bending, and prolonged stooping. He should increase activity as symptoms resolve and he regains confidence."

14. It is apparent that the genuineness of the plaintiff's complaints has not been questioned by the defendant's medical experts, and Mr Lunney, appearing for the defendant, made no attack on his credit. I accept the plaintiff as a truthful witness, and indeed as a person who has tried hard to battle on to overcome ongoing pain. I am satisfied that he would not have been able to continue for long in the position as a barman, but that his new position should be one that he will be able to continue in for the long term.

15. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 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'."

16. In this case I assess the plaintiff on the basis of his genuine injuries to his neck and lower back, and the resultant depression. I am satisfied that, as he has been able to move to a new career which puts considerably less stress on his back his depression has improved, and will continue to do so, but it was apparent in his evidence that he is still somewhat distressed at what has happened in the last few years. I am satisfied that he still has pain, but that it is not present all the time, and that he still sometimes takes panadol forte.

17. I am satisfied that his activities around the home and his recreational activities have been reduced, in that he has to be careful to avoid heavy lifting. He walks for exercise. He had been training a basketball side at his son's school before the accident, but had to give that away due to pain, although he has resumed this since late 1998.

18. In relation to general damages, I award the sum of $37,000, taking into account all of the evidence of neck and back pain, and depression. Noting the improvement in the depression, but the likely prognosis of ongoing back pain and the need to always exercise caution with lifting, I would attribute $25,000 to past loss, generating interest of $1,756, leading to a total award of $38,756.

19. Past out of pocket expenses were all paid by the workers compensation insurer, and were agreed in the sum of $14,842.35, which I award. There was also a claim for travelling expenses to attend medical appointments from his home in Gungahlin to various medical providers, and also for attendances when he was at work. This is particularised with a fine degree of precision at 2,132.6 kilometres. I am not satisfied from the evidence that this figure is made out, but I do accept that the plaintiff has had to incur some additional expenses in this respect. There is also a claim for $450 for medications, which is not precisely supported by the evidence. I award the sum of $15,500 for out of pocket expenses to take account of these additional items.

20. There is a claim for future out of pocket expenses, based on the need to continue to take some analgesic for pain relief. The plaintiff currently uses panadol forte as required. The claim is particularised as $8 per week, leading to a total claim of $7,480. While I accept that there will be a continuing need for some pain relief, the medical evidence favours the view that there will be gradual improvement, particularly given plaintiff's improved work situation. I award the sum of $5,000 as a buffer for future out of pocket expenses.

21. The plaintiff's past economic loss is claimed in the sum of $16,471.52, which represents the gross amount of incapacity payments received during his employment with the bowls club, and is claimed as a sum inclusive of the Fox v Wood component. I award this sum, noting that, as he was in receipt of periodic payments during his periods out of work no interest is appropriate.

22. The plaintiff's claim for future economic loss is based on a buffer to take account of the difference between his earnings at the bowls club and his earnings as a courier. I am satisfied that the plaintiff's ongoing lumbar pain, and to a lesser degree his cervical pain, has meant that he would not be capable of continuing with his work as a barman. This was the view of his treating general practitioner, and I note that Dr Keiller, who reported for the defendant, said that he should avoid lifting more than 10 kilos. In his examination in chief he described his ongoing difficulties, and was then asked

"Do you think you could have kept doing that sort of work indefinitely?"

to which he replied

"If I had to."

I have no doubt that this was an honest answer, in that the plaintiff would have continued to try to battle on, but I accept on all of the medical evidence that this would have been inappropriate, and would have lead to further deterioration of his condition, both physical and psychological.

23. The plaintiff was previously bringing home some $545 a week after tax, based on long hours for a six day week. He now brings home a bit over $400 a week, based on working 5 days for normal hours, although there is the possibility of some Saturday work. He has of course only been working on the courier business since March of this year. The plaintiff makes a claim for a buffer for future loss of earnings based on the ongoing difference between his previous earnings and his earnings from his present courier duties. An arithmetic approach, based on the plaintiff's working to normal retirement age, would result in a discounted sum of some $76,000 based on an ongoing loss of $100, and some $106,000 based on an ongoing loss of $140.

24. Counsel for the defendant pointed to the reduced hours that he is now working, and the scope for some additional hours as a courier to argue that it is not appropriate to adopt an arithmetic approach to the plaintiff's ongoing wage loss. He submitted that, given that the plaintiff now is working for fewer hours, and that the medical reports support the view that he will be able to work in his present duties with no difficulties indefinitely, only a modest buffer is appropriate.

25. I am not satisfied that an arithmetic approach is appropriate in this case and, bearing in mind the cautions set out by the Full Federal Court in Fry v McGufficke [1998] 1499 FCA (26 November 1998) it seems to me that this is an appropriate case for a buffer. I must take into account that the plaintiff, who has been keen to work throughout and who was suffering psychological difficulties when his working future as a barman was under a cloud, has had the initiative to mitigate his losses by investing in a courier run which provides him with a suitable source of remunerative employment. I am satisfied that he will continue to succeed in this business, and no doubt will take on extra work as it becomes available. He does, however, have ongoing pain and discomfort, and he is precluded from returning to heavy work such as bar management work involving lifting kegs and furniture, or bricklaying. On the other hand, it would be open to him on the medical evidence to take on some part time bar work, for which he is eminently qualified, if he wished to work up to the length of hours that he was regularly putting in until his resignation from the bowls club in March 1999.

26. Taking all of the evidence into account I award a buffer in the sum of $50,000 in respect of future economic loss.

27. A Griffiths v Kerkemeyer claim was particularised in an amount of "one hour per week" over 25 weeks to cover the period during which the plaintiff was most disabled, and led to a claim, based on $28 an hour, of $4,900. This is clearly and the sum obtained for a claim of one hour per day for 25 weeks. The "one hour per week" is a clear typographical error in the statement of particulars which, in any event, particularises a claim in the sum of $4,900. I am satisfied that a claim for assistance in the order of about one hour a day is made out, despite being set out as a claim for one hour per week. It was claimed in the sum of $28 per week, which is the present "third party" rate charged by certain home help organisations in this Territory. I am satisfied that this rate is in fact about twice the current rate payable for general domestic cleaning and like services, and counsel accepted this proposition. I award the sum of $2,625 being based on 25 weeks of one hour per day of assistance at $15 per hour, which being awarded at present rates is to be considered inclusive of interest.

28. This amounts to a total claim of $128,352.52 which I consider to be appropriate in all the circumstances and award, with costs.

I certify that this and the nine (9) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 19 November 1999

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: Mr G Lunney

Instructing Solicitors: Phillips Fox

Dates of hearing: 2 November 1999

Date of judgment: 19 November 1999