Etchells v Buytewer [2000] ACTSC 38 (12 May 2000)

Last Updated: 16 October 2000

Etchells v Buytewer [2000] ACTSC 38 (12 May 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - No issue of principle.

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

No. SC364 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 12 May 2000

IN THE SUPREME COURT OF )

) SC No 364/1998

AUSTRALIAN CAPTAL TERRITORY

1. BETWEEN: David James Etchells

Plaintiff

AND: Hendrick Buytewer

Defendant

1.1 ERRATUM

Judge Making Order: Master T Connolly

Date of Order: 12 May 2000

Where Made: Canberra

Amendment to Decision dated 12 May 2000

Re-Paragraph 1

The date of the accident recorded is the 12 September 1999; the correct date of the accident is 12 September 1994.

Ann Tranter

Associate to Master Connolly

1 June 2000

IN THE SUPREME COURT OF THE	)
	)	No. SC364 of 1998
AUSTRALIAN CAPITAL TERRITORY	)

BETWEEN:	David James ETCHELLS
	Plaintiff
AND:	Hendrich BUYTEWER
	Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 12 May 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $150,940.51

2. The defendant pay the plaintiff's costs.

2. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 12 September 1999 at Downer in the Australian Capital Territory. The plaintiff was driving a van in the course of his employment, which was struck on the side when the defendant came through a give way sign at the corner of Blackett and Legg Streets. The accident was one at relatively low speed, but it is accepted that the plaintiff struck his head on the side of the van. The plaintiff returned to his depot and reported the accident to police, but he did not at the time make any attendance at a doctor or make any claim. He says that he had a headache and took some Panadol for this, and that the headaches persisted for a couple of days. He says he assumed this was only a minor problem at the time.

3. The plaintiff's case is that the accident caused a blow to his head which aggravated a psychiatric condition which the plaintiff admits was symptomatic at the time of the accident. The defendant's case is that the accident had only a minor effect on what it says were longstanding difficulties that the plaintiff was then suffering from, and that any impact it did have has long since passed.

4. The plaintiff was born in Wales in 1962, and came to Australia with his adoptive family in 1970. He was educated at Weetangera Primary School, Belconnen High School and Hawker College, and he left school on completion of Year 11 at 18 years of age. He worked in a variety of manual labouring jobs as a gardener, fencer and plant operator. He also competed successfully for a period as a professional boxer.

5. In 1986 he joined the ACT Government Service working in a variety of jobs for the Parks and Conservation service. These tasks continued his involvement with gardening, fencing and plant operations, as well as involvement in bush fire fighting. In 1993 he joined the ACT dog control unit, as a dogcatcher. His job involved mobile patrols around Canberra to collect stray or vicious dogs, and take them to the dog pound. He enjoyed the work, and his supervisor spoke well of his performance through 1993.

6. In 1994 the plaintiff had a romantic involvement which a woman which broke down. This caused him considerable distress. The then Registrar of Dogs, Mr Phillip Revell, gave evidence that in about June of 1994 the plaintiff appeared distressed. He says that he received a report from the pound keeper that the plaintiff had said that he wished he had a gun and he would "top himself". The plaintiff agreed that this incident occurred. Mr Revell was understandably concerned about this report, as staff in the dog control unit did have access to firearms in the course of their duties, although it is unclear whether the plaintiff ever actually carried a rife in his van. Mr Revell arranged for the plaintiff to undertake counselling with a staff counsellor, Ms Wilson.

7. Her report of May 1995 states that she had a long interview with him of 27 June 1994, and he was `extremely upset and finding it very difficult to come to terms with a change in a relationship." She saw him again on 28 June and reported that he "appeared to be calmer".

8. On 2 August 1994 the plaintiff injured his back while lifting a large dog at work. His general practitioners notes show that he complained on 5 August of right-sided back pain following this incident. His doctor's notes also record that on 30 September 1994 he said that at the time of this incident he suffered acute breathlessness and palpitations. Dr Goonerage said in his evidence that this was an unusual reaction to a lifting strain. He suspected cardio-vascular problems, which have been ruled out. His notes state "under stress at work." Dr Gooneradge said that, as he had excluded cardio-vascular causes of this reaction "to me it was probable that the stresses at work and the fact that he had to carry the dog and so further he might have hyperventilated which is a manifestation of stress rather than cardiac disease or respiratory disease." At the time Dr Gooneradge took this history he was not aware of the suicide references at work in June, and he agreed that that would have been a helpful fact to know at the time.

9. On 10 August he again attended the staff counsellor, Ms Wilson, and she recorded that " he seemed quite stressed and was in pain from a back strain from managing a dog. He also had been quite affected by a particular job he done removing some dogs from a property. He came back to see me during August to resolve some personal matters." Mr Etchells said that the reference to the particular job involved a potential dispute when he had to remove a savage dog from a property, and the owners boyfriend threatened to intervene to prevent him from carrying out his duty, but later backed off.

10. I am satisfied that, before the accident, the plaintiff was distressed about a relationship breakdown and had made reference to suicide. He had sustained a soft tissue injury to his back, which had him off work and under medical care for most of August, and at the time of this lifting strain accident he manifested breathlessness and palpitations, which his general practitioner, aware of significant stresses at work but not then aware of his suicidal thoughts, put down to a stress reaction. All of this occurred before the motor vehicle accident the subject of these proceedings.

11. He saw Dr Gooneradge again on 5 September, and reported that the back injury persisted, although he was back at work. The accident occurred on 12 September. He again saw Ms Wilson on 22 September, and reported that he had been stressed by some abusive incidents at work. He made no reference to the motor vehicle accident. She reported that "on 28 September he seemed very down and upset." On 30 September he again attended his General Practitioner. No mention was made of the motor vehicle accident, and it was on this occasion that Dr Gooneradge took the history of palpitations and breathlessness associated with the back strain incident, and the history of "stress" at work. He diagnosed depression, and started the plaintiff on Zoloft, and anti-depressant.

12. The plaintiff says that through late September and into October he was experiencing persistent headaches, mood swings, feelings of unprovoked aggression, memory difficulties and problems with noise sensitivity. He continued to see Ms Wilson for counselling, and Dr Gooneradge, who on 1 November continued the Zoloft medication.

13. In November he took a rifle which he knew to be unloaded and placed it in his mouth at work, to see if he could go through with suicide. He later told his girlfriend of this incident, and this led to the final breakdown in that relationship, as, to his knowledge, a former boyfriend of hers had committed suicide. He told Dr Gooneradge about this incident, and he increased the dosage of Zoloft on 11 November. A CT scan of his brain was normal, and on 16 November, after again increasing the dosage of Zoloft, Dr Gooneradge sent him to Dr White, a psychiatrist.

14. No report was tendered from Dr White, but Dr Gooneradge said that at the time of the referral he diagnosed bipolar mood swings. After the attendance on Dr White Dr Gooneradge formed the view that his extreme changes in mood might have been side effects of Zoloft, and his medication was changed.

15. His sister gave evidence of his deteriorating health through October and November, and her increasing concern for his wellbeing. The incident involving the rifle at work had also triggered further responses by way of counselling from his employer, and he was put off work while his fitness to continue in the role of dogcatcher was being considered. His sister referred him to Ms Anna Chrichton, a clinical psychologist, on 1 December 1994.

16. She took a history of anxiety, depression and memory impairment. In the course of taking the history she asked him if he had recently had any blows to the head, and he then told her about the motor vehicle accident. This was the first time this had been mentioned to a health professional. He then attended his general practitioner on 6 December 1994, and gave him the history of the motor vehicle accident on 12 September.

17. He was referred to Dr Duncan, a rheumatologist, for his recurring cervical and thoracic pains in January 1995. In February he was reviewed by a Commonwealth Medical Officer who recommended that he return to work on normal duties, but he continued to have further problems, and took some additional time off before ceasing work as a dog catcher altogether in March 1995. He was off work from 13 March 1995 to 19 June 1996.

18. He continued to complain to Dr Goonerage of headaches throughout 1995. He was referred to Dr Andrews, a consultant neurologist, in April 1995. He took a history of depression prior to the accident. He found no abnormalities on a CT scan of the brain, and minor degenerative changes only at C5-6. He said in his report of 5 April 1995 to Dr Gooneradge " I felt that the injuries here were fairly minor and that he is now mainly suffering from migraine and possibly mild depression." He recommended Dereril for the headaches. A later report to Dr Gooneradge of 2 May 1995 from Dr Andrews states that the response to Deeril was poor, and recommends Epilim. Dr Andrews noted " I think a lot of his symptoms are depressive. He told me that he was on Zoloft but started to do physical harm to himself which has been described with these types of agents."

19. Mr Etchells continued regular counselling sessions with Ms Crichton throughout 1995 on a weekly or fortnightly basis. Ms Crichton has expressed the view that the plaintiff may have sustained organic brain damage as a consequence of the accident, a view supported by Dr Schlesinger, who is also a clinical psychologist. This view has not been supported by any opinion from a medically qualified person, and I am not satisfied that clinical psychologists are qualified to give an opinion on organic brain injury. I am not satisfied that any such injury was sustained.

20. He was referred to Dr Saboisky, a consultant psychiatrist, in May 1995. In his report of 16 June 1995 to Dr Gooneradge he took a history which indicated an awareness of depressive symptoms prior to the accident, and noted that he had significant side effects from the Zoloft, which settled after the cessation of the medication. Dr Saboisky said, "I did not think that he was clinically depressed nor anxious and felt overall that his principal problem was chronic tension type headache. I read a report from Anna Crichton, clinical psychologist who suggested that he had the possible presence of mild organic brain disorder but I fail to see how this could be attributable to his accident. It is more likely I think attributable to his genetic endowment, which did cause him some difficulties as a young child. In her report she indicated that his family noticed learning difficulties and perhaps hearing problems. He was seen as "living in a dream world and tended to switch off and mesmerise." He was somewhat clumsy and uncoordinated. I think David believes that in some way the whiplash has caused some subtle brain damage and he wasn't particularly comfortable with my suggestion that I found it hard to attribute this to his accident.

21. Dr Saboisky suggested Aurorix, but he noted that the plaintiff was sceptical about medications. Dr Andrews had made the same observation in his report. Dr Gooneradge's notes show that he was upset and angry with Dr Saboisky's opinion, and may "lose it". He was complaining of noise intolerance and ongoing headaches, and was referred to Dr Danta. In his report of 4 August 1995 he said, "It is likely that the personality disorder is secondary to the accident, but whether it is due to frontal lobe damage or a psychological effect is very difficult to determine. I do not think that he has epilepsy, but I have arranged another EEG to be done and note that one taken by Dr Tuck a month ago was normal." In a later report of 14 January 1997 Dr Danta confirmed that epilepsy was not present. He said " His head injury was minor in that he did not lose consciousness. It would, therefore, be unusual for it to produce significant cognitive effects or behavioural abnormalities as a result of frontal lobe damage. It is thus much more likely that the psychological effects of the accident have caused his difficulties, and there is the possibility of a pre accident personality disorder contributing to this. This would fall into the realm of psychiatry. Be this as it may, he did not have any relevant symptoms before the accident apart from the infrequent headache, and, therefore, all his complaints and consequent disabilities have to be directly attributed to the effects of the accident."

22. This history was clearly incorrect as it did not make mention of the significant pre accident disturbance leading to suicidal tendencies, and the back pain with the associated breathlessness .I note that various doctors have mentioned difficulty in obtaining histories from Mr Etchells, and his regular complaints of short term memory loss. While he has failed to give a complete picture of his prior health to some of the doctors, I am satisfied that there has been no intention to deceive, and note that the full background of his prior history was made clear at the outset of this hearing, and has apparently been long known to those advising the defendant.

23. By August 1995 he was still complaining of headaches, and was referred to Professor Lance, a consultant neurologist at Prince Hednry and Prince of Wales Hospitals in Syndey and Emeritus Professor of Neurology at the University of New South Wales.

24. He prescribed Tryptanol for the headaches, but expressed some concern as to whether the plaintiff would follow this recommendation. In fact he did, and after about six weeks the headaches resolved satisfactorily. I am satisfied on all of the evidence, including that of Dr Gooneradge who has treated the plaintiff since about 1986, that the headaches were a consequence of the motor vehicle accident, and were disabling, but have now resolved.

25. He continued during this period to complain of sensitivity to noise and irritability. He says that he used earplugs while driving. Video surveillance film shows him driving a utility truck and riding a motor bike, but it is not clear from the film whether or not he placed plugs in his ears or removed them after a journey. There was evidence that there were ear plugs in the utility when it was purchased by an acquaintance, and I am satisfied on all of the evidence that the plaintiff did complain of noise sensitivity and did wear earplugs on occasions when driving.

26. Dr Burvill a psychiatrist, formed the view that the plaintiff suffers from "organic personality disorder, which is a way of saying that he has personality problems now, related to personality change following an organic insult to the brain." Dr Burvill did not have a history of the distress and suicidal references before the accident, and formed the view that the personality disorder was solely related to the motor vehicle accident, and did not involve an aggravation of an earlier condition. After viewing the video material, Dr Burvill retracted this opinion, and said, in a report of 20 May 1996, "I am unable to conclude that Mr Etchells is in any way incapacitated, and therefore is not, from a psychiatric point of view, incapacitated from resuming employment."

27. Dr Burvill, saw the plaintiff for a medico legal assessment for Comcare on 14 March 1996. In his report of 8 April 1996 he described an incident when the mobile phone on his desk rang during his interview. Dr Burvill said "Mr Etchells reacted quite remarkably, with a noticeable startle response in which his body twitched and rotated or moved from right to left, as if he had some sort of spasm of his trunk. This startle response appeared to be involuntary.

28. Attempts to arrange a return to work were made during late 1995. The plaintiff was offered a position at an ACT Government run plant nursery, but he was reluctant to take the job because he had the perception that this workplace was used as a "dumping ground" for "head cases". He expressed vehement opposition to taking up such a position, telling various doctors that if he started there he would never get another job. He also complained that the position would involve working with machinery that would be particularly noisy.

29. In April 1996 the plaintiff was offered a return to work as a courier with the ACT Government. He complained of the noise generated by driving around in a station wagon. Counsel for the defendant submitted that this was inconsistent with the video material which shows him driving his utility and motorbike at around this time, but he claimed that it was the drumming sound produced in the open station wagon that was distressing. His general practitioner supported his claims of noise sensitivity throughout this period, and I accept that this condition, which did not pre date the motor vehicle accident, was genuine and was related to his accident.

30. He was examined around this time by Dr Whittaker, a rheumatologist, for Comcare. He noted that the plaintiff was then symptom free in respect of neck and thoracic pain, but he continued to complain of noise and psychological difficulties. He formed the view that the effects of the whiplash problems were now past, and deferred to the opinion of Dr Burvill on his psychiatric state. Dr Roth also saw the plaintiff in May 1996 for Comcare, and had the benefit of viewing the video material. He expressed the view that the plaintiff was suffering from no physical impairment at that time.

31. In late May of 1996 the plaintiff was offered employment at the ACT Library Service, and he commenced duties at the Griffith library. He started working on his own away from other employees and the public in a quiet space inserting magnetic security devices to library books, but over time he began working as an attendant with other staff and the public. He says he enjoyed this work, and his complaints of noise began to abate, although he says that he still had some problems with constant low pitched noises.

32. He remained in this employment until his position became redundant as part of a re organisation of staffing levels, and he accepted a redundancy package in August 1998. He worked on a normal full time basis from May 1996 to August 1998, and I am satisfied that by this time he had full working capacity.

33. Comcare ceased all payments to the plaintiff in September 1996 following the medical reports referred to above, and he continued at the library with only minimal time off for flu like conditions unrelated to his motor vehicle accident.

34. He has not worked since, although he agrees that he is physically able to engage in a full range of activities. He has developed an interest in art and computer design, in particular web site design, and print outs were tendered, in colour, of the "David Etchells Artworks" internet site ( http://etchells.server101.com/ ) which he agreed demonstrated a high level of skill .He told Dr Miller, a consultant psychiatrist who he saw for a medico legal examination for the defendant in October 1998 that he was studying to become a computer graphics designer, and that he expects to be able to make a living from this.

35. Dr Miller took a history of no prior psychiatric difficulties, but noted that the documents she had been referred did mention the work stress and suicidal concerns in mid 1994. She noted that Mr Etchells presentation was not easy to diagnose, but concluded " The most likely explanation for his prolonged symptoms is that he did have a concussion immediately after the accident, but has subsequently developed neurotic elaboration of his symptoms. Such reactions do not fall neatly into current diagnostic systems. The older terminology recognised so-called `neurasthenic reactions" with fatigue, irritability and sensitivity to noise, together with somatic complaints such as headaches and dizziness. Such reactions ranged from mild too severe, and could be transient or persistent. Severe neurosis is found in subjects prone to neurotic reactions generally as indicated by family and personal history. Personality and affective changes can arise from organic impairments, but also the individual's response to the awareness of such changes. Whilst the relative contribution of organic and reactive components may be hard to disentangle, generally "the longer the changes persist in the absence of evidence of organic defect the more confidently they can be ascribed to psychogenic rather than physiogenic mechanisms (Lishman, 1997.) In this case the presentation was probably that of organic effects in the early post injury period, compounded by elements of Adjustment Disorder and Somatoform Disorder as the subjective complaints extended well beyond the period that would be expected for a relatively minor closed head injury. There may well also be factitious elements present, but this does not mean that all of his present symptoms have been consciously produced. Indeed, he now portrays himself as having few problems."

36. Dr Miller formed the view that the plaintiff was fit for work from the time he started his job in the library, but accepted that he was unfit before that time. She noted that the ongoing counselling from Ms Crichton had been beneficial to the plaintiff. She concluded "He appears to have made a symptomatic recovery, and his level of function is steadily improving. There is no reason he should not be able to return to his pre injury function. It is extremely unlikely that the head injury would have produced any permanent organic impairment. It is possible that he may experience symptoms again in times of stress, but these would bear no logical relation to the injury. His long term prognosis will largely depend on his personality function rather than illness factors."

37. Off all of the medical and psychological reports tendered in these proceedings I find Dr Millers opinions, taken with the clinical notes, opinions and observations from the witness box of Dr Gooneradge, to be of the most assistance. Dr Gooneradge's view in a report of 12 September 1997 was "In summary, this patient suffered a motor vehicle accident injury on 12 September 1994. Following the accident he complained of increasing irritability and predisposition to anger outburst apparently precipitated by noise. There have been many differences of opinion as to the relationship between the patient's symptomatology and the accident. On the balance of probability it is my opinion that the patient suffered from a post traumatic stress disorder manifesting in increasing irritability and predisposition to anger outbursts. It is probable that he has some prior psychological or personality attributes which makes him vulnerable to stress and threats as occurred following the motor vehicle accident." Dr Gonnerage felt that Mr Etchells had settled by that time and was managing in his then position at the Griffith library.

38. I am satisfied on all of the evidence that the plaintiff, while suffering from a pre-existing psychiatric condition, did sustain injuries consequent to the blow to his head which he received in the motor vehicle accident the subject of these proceedings. I am satisfied that this manifested itself in headaches, which have now resolved, and in personality changes in the manner described by Dr Miller. I am satisfied on all of the evidence that he did continue to suffer from the effects of the accident, including the sensitivity to noise, until mid 1996 to a disabling degree. I am satisfied that these effects have now abated, following ongoing counselling, and that the effects of the injury have now passed.

39. The principles to be applied in determining compensation in personal injuries cases have 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'."

40. In respect of general damages, I assess the plaintiff on the basis of his genuine physical and psychological sequela of this accident, but take into account that he was suffering symptoms of stress or depression prior to the accident. Taking into account all of the medical evidence, I assess general damages in the sum of $40,000. I am satisfied that the effects of the accident have now passed, and all of this is to be considered a past loss, generating interest of $4475, making a total award of $44475.

41. Out of pocket expenses were agreed arithmetically to amount to $16,286.35, to which must be added the $28,619.30 of out of pocket expenses that have already been paid by Comcare. This amounts to $45,090.75.which I award, being satisfied that his continued attendance at Ms Crichton have been of assistance and were reasonable.

42. I am satisfied that the plaintiff was incapacitated and prevented from working by the effects of his motor vehicle accident, but that this incapacity had resolved by about the time he was able to take up the paid employment at the Griffith Library. He worked successfully at this job until the position came to an end, when he negotiated a redundancy agreement, and has not worked since, although he admitted that he could physically undertake many tasks. Counsel for the plaintiff calculated a wage loss claim, which ran to the date of hearing, and also included a period for future loss, which I am not satisfied is made out. It seems to me, however, that to allow a wage loss claim to the 17 August 1996, by which time the plaintiff had settled to his job at the library, and which is the date at which the Comcare payments ceased, would in all of the circumstances of this case be a just outcome. I award the sum of $47,817.08. I note that he was in receipt of Comcare payments for this period, and so no interest is appropriate.

43. There is a Fox v Wood component payable on this sum to reflect the tax paid of compensation payments, and this was agreed in the sum of $13,557.68, which I award.

44. As I am satisfied that the effects of the accident have passed, I make no award for future out of pocket expenses. This amount to a total award of $150,940.51, which I consider to be appropriate on all of the circumstances and award, with costs.

45.

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47.

48.

49.

50.

I certify that this and the * (15) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 12^th May 2000

Counsel for the Plaintiff: Mr SL Walmsley SC with Mr C Whitelaw

Instructing Solicitors: Stilling & Associates

Counsel for the Defendant: Mr P Donoghoe QC with Mr G Lunney

Instructing Solicitors: Phillips Fox

Dates of hearing: 6 - 9 March 2000, 13 & 14 March 2000

Date of judgment: 12 th May 2000