Angelo Cerullo v Adam Gilrain & Ouy Tang Jong [2000] ACTSC 64 (4 August 2000)

Last Updated: 16 October 2000

Angelo Cerullo v. Adam Gilrain & Ouy Tang Jong

[2000] ACTSC 64 (4 August 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Two motor vehicle accidents - Soft tissue injuries - Aggravation of degenerative condition - No issue of principle

CONTRIBUTORY NEGLIGENCE - Failure to observe vehicle behind

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

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

Wilson v Peisley (1975) 7 ALR 571

No. SC 100 of 98

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 4 August 2000

IN THE SUPREME COURT OF THE )

) No. SC 100 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANGELO CERULLO

Plaintiff

AND: ADAM GILRAIN

1^st Defendant

AND: OUY TANG JONG

2^nd Defendant

ORDER

Coram: Master T. Connolly

Date: 4 August 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $38,631.75.

2. Judgment be entered for the plaintiff against the second defendant in the sum of $27,997.00.

3. Costs be reserved.

1. These are claims for damages for personal injuries arising from two motor vehicle accidents which occurred in the Australian Capital Territory in 1996 and 1998. The first accident, involving the defendant Adam Gilrain, occurred on 20 March 1996 in the underground car parking area at the Westfield Belconnen Shopping Centre. This accident occurred, on the plaintiff's version, as he was parking his car and was struck in the rear by the defendant. Liability is in issue in respect of this accident, with the defendant's version of events being that the plaintiff overshot in his attempt to manoeuvre his vehicle into a car parking space and reversed into the front of the defendant's vehicle. Contributory negligence is pleaded. The second accident involving the defendant, Jong, occurred at the intersection of Coulter Drive and John Clelland Drive, Florey on 15 November 1998 when the defendant failed to give way to the plaintiff. Liability was admitted in respect of this accident.

2. It is the plaintiff's case that he sustained soft tissue injuries in the first accident which aggravated a previously asymptomatic degenerative spinal condition, and has had low back and neck pain continuously since the accident, aggravated by the second accident. He claims that his back and neck pain precluded him from continuing with tertiary studies and part time employment. He admits that he has been employed and paid on a full time basis since early 1998 with an earthmoving firm, Canberra Contractors of which his father is one of three directors. The plaintiff claims that this is in effect sheltered employment, and that he would not be employable, or would face considerable restrictions in employment on the open market. Canberra Contractors operate in the field of urban subdivision, preparing roads and hydraulic services in the newly emerging suburbs of Canberra, and for the last few years have been heavily involved in opening up new suburbs in Gungahlin to Canberra's north. Extensive video material was tendered, and shown over two hearing days, of the plaintiff at work from early in the morning to mid afternoon. It is the defendant's case that the plaintiff has no restrictions in relation to his employment.

3. The plaintiff was born in July 1974. After high school he undertook studies at Canberra Institute of Technology towards an Associate Diploma in Civil Engineering, commencing in February 1994. He also found part time employment as a security guard, and as a supervisor at a car wash facility. His records show that he studied 11 units towards this qualification in 1994, with four passes, four ungraded passes, two fails and a failure to submit in one subject. His record shows that although he enrolled in 1995 he did not undertake studies in 1995, and no evidence was given for the reason for this. He enrolled again in 1996 and transferred to an Advanced Diploma Course in 1997.

4. The first accident occurred on the morning of 20 March 1996, as he was going to the shopping centre from his home, to pick up a new mobile phone battery before going on the college. He was driving his Toyota hatchback sedan, with tinted windows. He says that he indicated to go from the road into the parking complex, and then,

"I indicated to go in the actual car park and I had my foot on the brake to sort of pull in, slowing down, and then I just felt a- someone hit me from behind."

5. He says that he would have been stationary, indicating to turn left into a marked bay, for some 15 to 30 seconds before the impact. In cross examination the plaintiff was asked whether he was award of the presence of other moving vehicles before the impact, and he said he was not. The exchange continued,

"Did you see the vehicle that you say hit you before that happened? No

You were not aware of that presence of that vehicle at all, is that correct? That's correct."

6. He says that he would have been doing about 40 kilometres an hour as he went into the car park, but probably two or three kilometres while he was looking for a car parking space. He said that the carpark was well lit, although he agreed that the finishing stages of its construction were still being undertaken.

7. Mr Gilrain gave evidence of his recollection of events on the morning of the first accident. He was at the time working at the shopping centre, and driving a 1968 Holden Premier sedan. He said that the car park was open, but the lights were not yet functioning, so that drivers were dependent on natural light from the perimeter. He says that he followed the plaintiff from the traffic lights until he turned into the carpark, and then followed him into the carpark. He says that he observed the other vehicle travelling at a speed which seemed excessive, and attempting, unsuccessfully, to turn left into a parking space. He says at this point he came to a complete stop. He says the plaintiff's car then started to reverse quickly. He said,

"Its apparent that he hasn't seen me where I was stationary and my first reaction was to select reverse and try to get the car out of the way."

8. He agreed in cross examination that he did not sound his horn. He said the plaintiff's car then reversed into the front of his car.

9. Mr Andrew Cousins who worked at the nursery at the shopping centre on the level of the carpark, and knew both the plaintiff and the defendant, gave evidence in the plaintiff's case. He was sweeping the outer perimeter of the nursery, and says he heard the plaintiff's car come in, and noticed it because of the exhaust vibration. He said,

"Being a bit of a motor head myself, so I wanted to have a bit of a look. And behind Angelo's car was Adam's car....As they both drove in Adam's car was, well, to me, an unsafe distance from Angelo's car. I seen Angelo brake and then heard the bang."

10. He said that he saw the brake lights on the plaintiff's car, but no reverse lights, and said that the plaintiff did not reverse at all.

11. In cross examination he agreed that in a statement to an insurance assessor on 3 October 1996 he said that he looked away briefly just at the moment of impact and did not actually see the two vehicles collide. But he said that,

"If I did look away sir, it would have been for only a few seconds if that. Put my head down, straight back up when I heard the bang so I feel that I've witnessed an accident and didn't see Angelo reverse."

12. He said that the area was dimly lit, and he clearly recalls seeing brake lights but no reversing lights. He did not say that he saw any indicators.

13. The defendant and Mr Cousins both described the accident as relatively minor. The plaintiff described the impact as "unbelievable" and estimated that the defendant was driving at 30-40 kilometres an hour when he was hit, although he had agreed that he had never seen him. He agreed that his car was moved only slightly forward, which is quite inconsistent with a small stationary hatchback being struck at the claimed speed by a larger sedan.

14. I am confronted in this matter with quite conflicting versions of the events by the plaintiff and defendant. The independent witness, Mr Cousins, was I am satisfied being as helpful and truthful as he could. I am satisfied that he observed the vehicles coming into the carpark at some speed and close together, and that he observed the plaintiff apply his brakes. I am satisfied that he did not observe any reversing lights, and I am satisfied that this occurred in quite dim light form a distance of about 25-30 metres where reversing lights would be clearly visible. I am satisfied that he then looked momentarily away, and then heard the impact. This version of events is more consistent with the plaintiff's version, and on all of the evidence I am satisfied that the accident occurred in circumstances where both vehicles were travelling at a speed above normal for a carpark, and closely together. The plaintiff stopped and attempted to move into a car parking space, and was struck from behind by the defendant.

15. In these circumstances I find primary liability, on the basis of the defendant travelling at an inappropriate speed and at an inappropriate distance from the plaintiff's car, and failing to keep sufficient look out, as particularised in the plaintiff's pleadings. I do not find that the plaintiff reversed his vehicle at all, so I do not find that particulars of contributory negligence as pleaded by the defendant in this respect made out. I am satisfied however, on the basis of the plaintiff's admission that he was not aware, at all, of a vehicle closely behind him, that the particulars of contributory negligence pleaded in respect of

"(a) failing to keep a proper lookout; and

(f) failing to see the motor vehicle being driven by the defendant in sufficient time to avoid the said collision or at all"

16. are made out. It seems to me that it is therefore open to me to make the finding of contributory negligence even though I am not satisfied that the defendant's version of events, that is that the plaintiff reversed, is made out, and have preferred, on the basis of the evidence of the independent witness, a version of events that involves the plaintiff stopping and being struck from behind. On the plaintiff's own version of events, it seems to me his admission that he was quite unaware of a vehicle behind him establishes contributory negligence.

17. I find that the plaintiff was contributorily negligent in stopping and attempting to turn into a car parking space without first checking that there was no other car close behind him. In accordance with the apportionment legislation I will now proceed to an assessment of damages and then deal with the issue of contribution.

18. I am satisfied that the damage to the plaintiff's vehicle was relatively minor, and that the impact occurred at relatively low speed. After exchanging details and reporting the matter to the police the plaintiff attended the Canberra Institute of Technology, but said that his legs were numb and tingly. He attended his local medical centre, where a history was taken of low back and neck pain developing within some hours of the accident. He was sent for x-rays and prescribed analgesia. The plain x-rays showed some spinal curve which was reported by his general practitioner as "developmental and pre existing". The initial diagnosis was of soft tissue injuries, expected to settle with analgesia and physiotherapy, which he undertook on general practitioner advice. The plaintiff's pains did not resolve as expected. He continued to experience pain throughout 1996, and continued with treatment.

19. He was referred to Dr Fuller, a neurosurgeon, by his general practitioner Dr Black in early 1997. He referred to a CT of the lumbar spine in July 1996 which revealed minimal annulus bulging at the L4-5 and L5-S1 levels. He arranged for an MRI to be undertaken in January 1997 which revealed,

"some decrease in signal intensity from the L3-4 and L4-5 discs consistent with dehydration and degeneration however there was no obvious disc herniation and certainly there was no evidence of nerve root compression."

20. He recommended referral to Dr McGrath, a rehabilitation physician. In a report of 6 May 1998 Dr Fuller said,

"This man's diagnosis is of lumbar disc degeneration. The complaints which he describes may be contributed to an aggravation or precipitation of this as a result of the alleged injury on 20^th March 1996."

21. The diagnosis of a degenerative condition in the lumbar spine was confirmed by Dr McGrath, in his report of 11 December 1997. He said

"Radiological changes are consistent with adolescent Sheuermannn's disease...The overall diagnosis is multiple internal disc derangement associated with Scheuremann's disease."

22. In relation to the causation of this condition, Dr McGrath said,

"From the history given and the radiological findings, consistent with Scheuremann's disease, his current disability is the result of multiple factors. He has a developmental weakness of the spine which imposes an increased risk of disc prolapse compared with the general population. By extrapolation, there is also an increased risk of painful internal disc disruption. This weakness combined with a traumatic event is sufficient to create the current disability from which he suffers. I think that it (is) possible Mr Cerullo would have experienced painful spinal disability as an adult, depending on his choice of career and recreational activities. The motor vehicle accident ushered in the onset of disability several years prior to what might be expected."

23. Mr Cerullo has also been referred by his general practitioner to Professor Ryan, an orthopaedic surgeon. He said that the plaintiff had,

"No convincing evidence or irritative or compressive neuropathy and any surgery on his spine would likely confirm him in an illness role"

24. He noted in this first report in March 1998 that,

"Non physical factors have intruded significantly into Mr Cerullo's presentation."

25. In a subsequent report of April 1999, after the second accident, Professor Ryan noted on examination that the plaintiff,

"displayed less cervical motion on formal examination than on casual observation"

26. and said,

"Unfortunately his second accident seems to have tipped him over towards non organic factors which now dominate his presentation."

27. He recommended that the plaintiff undertake the cognitive behavioural program at the pain management clinic at the Royal North Shore Hospital.

28. The plaintiff says that his back pain was making it difficult for him to concentrate on his studies, and his results were poor in 1996. His academic record shows that in that year he undertook eight subjects, achieving three passes, two ungraded passes, one fail and two did not submit for assessment results. He transferred to a more advanced course, being and advanced diploma, in 1997, and his results were less satisfactory. His general practitioner advised him in 1998 to withdraw from his studies until his back pain improved.

29. He had been undertaking security guard work as a student, and says that this became increasingly difficult after the accident. He also undertook his part time employment with the car wash, and with his father's firm. In the year to the end of June 1996, which included the half of 1995 when he seemed not to have been studying, he earned $7,583 from Star Security and $3,174 from Canberra Contractors. In the year to 30 June 1997 he earned $2,447 from Star Security, $2,770 from Canberra Contractors and $1,803 from the car wash. In the year to 30 June 1998 he earned only $394 from Star Security, but $14,279 from Canberra Contractors reflecting his move to full time work in this firm from March 1998. In the year to 30 June 1999 he had only one source of income, aside from earnings from a family trust, and that was $39,081 from Canberra Contractors. He agreed that his earnings would have further increased in the 1999-2000 tax year to around $48,000 plus allowances .

30. By the time of the November 1998 second accident he was working full time with Canberra Contractors, but still complaining of ongoing back pain. He described his work role in court and to various doctors as mainly light supervisory work. Extensive video material was shown of the plaintiff at construction sites in December 1998, May and June of 1999 and January and May of 2000. The plaintiff agreed that on no occasion was he displaying any observable disability. He was observed undertaking a range of tasks, and moving, bending and crouching throughout. On occasions he broke into a run, jumped to pull down the back door of his four wheel drive utility, operated various items of heavy plant, and engaged in quite heavy tasks such as lifting a large sign and using a device to hammer a star picket into the ground. While it was obvious that he had a supervisory role, in that he was observed giving instructions and demonstrating tasks, nothing that I observed in nearly three and a quarter hours of tape indicated that these were light sheltered duties or that he was in any way restricted, although he was not performing constant labouring or plant operation type activities.

31. The second accident occurred as he was driving his four wheel drive vehicle at the suburban speed limit and was struck by the second defendant. I am satisfied that this was a collision of quite significant force, and extensive damage was done to the plaintiff's vehicle. Mr Cerullo said that he felt that this accident has had the greatest impact on him. The plaintiff says that he had about two weeks off following this accident, but the wage records show that he had 15.2 hours of sick pay in the week of the accident, and 22.8 hours in the following week. The records show no sick leave since then, although the plaintiff and his father say that he is given flexibility at work and can take time off when needed. In the video material he was seen for extensive periods over various days with no observable breaks.

32. Mr Cerullo was apparently quite fit before the first accident, and had played schoolboy sports to a representative level, although not for some years prior to the accident. I accept that he is no longer active, although he acknowledged that he can on occasion mow lawns and do other household chores. He certainly was observed undertaking a range of activities on the video material. He said that after a days work he will return home exhausted, and be in bed by 7pm. He was supported in this by family members, but this is a considerably more extreme version of the impact of his disability than recorded by any doctors who have provided reports in his case. I am satisfied that the plaintiff has exaggerated the impact of his condition in this respect. His father agreed that, before the plaintiff started full time work in March 1998 he had been employed part time doing labouring work, "cleaning gutters, sweeping footpaths, that sort of work".

33. Evidence was given in the plaintiff's case by Mr Dunn, a construction manager with Canberra Contractors. I was impressed with the frankness and honesty of his evidence, and he was not cross examined. He said that, before the plaintiff commenced on a full time basis in 1998, he had observed him doing labouring work around sites. Asked whether the plaintiff had any physical disability during this period, which is after the first accident, Mr Dunn said, "Not that I recall". He said the plaintiff was first employed on a full time basis as a labourer.

34. He recalled the November 1998 second accident, and said that the plaintiff had "around about a week off" as a result. This seems consistent with the wage records. He said that they tried to find him lighter duties than labouring work, and,

"As he was working sort of as a semi leading hand grade checker, which was sort of regarded as not really strenuous work, we do continue to use him in that capacity".

35. He said that the plaintiff is able to carry out his full duties but,

"From time to time he has come to me and said, "Gee I've got a bit of back pain today"."

36. He said from time to time he had observed the plaintiff leave the site early but,

"He has basically fulfilled a capacity as a grade checker, sub foreman person on the sites".

37. Mr Dunn was asked whether the plaintiff could maintain his employment if the company was not influenced by his father, and replied,

"I would think that if he was to get up in the seniority ladder, a little bit further up in the company where there's no demand to do any physical manual labour, from what I can gather from his injuries, I think he probably would be able to perform those duties".

38. He agreed that the plaintiff wouldn't be able to work as a labourer and that at present,

39. "he is struggling to work without some restrictions on what he has to do".

40. The plaintiff has been seen by Doctors Mc Ewin and Battlay for the defendant. Dr McEwin has provided three reports, in June 1998, July 1999 and April 2000. He diagnosed soft tissue injuries arising from both accidents only. He had available to him the CT and MRI scans, and acknowledged that there were the minor bulges observable on the July 1996 CT and January and April 1997 MRI scans, and in the latest reports a CT of the lumbar spine on November 1999 which showed a small bulge at L3-4 and L5-S1 which he considered to be within normal limits. In each of his reports Dr Mc Ewin noted that he had not read the reports of Drs Fuller and McGrath. As Dr McGrath has made the diagnosis of degenerative spinal condition aggravated by the accident it seems to me unfortunate that Dr Mc Ewin has not had the opportunity to consider and comment on this specific diagnosis.

41. Dr Battlay has provided reports in June 1998 August 1999 and March 2000. In his first report Dr Battlay said that the MRI scan, and I take him to be here referring to the 1997 scans, "demonstrated degenerative changes at L3 and L4". He formed the view that,

"The described accident appears to have been of a trivial nature and would not have been expected to cause injury to an otherwise fit young man. Judging by his subsequent progress, and his present MRI findings, he would have had some pre existing degeneration in the lower lumbar discs, at least at a pathological if not a clinical level. It is possible that a sudden strain drew his attention to the problems."

42. In his last report he said, in relation to the plaintiff's back,

"I accept that his pre existing disc degenerative problems have been generally aggravated."

43. This opinion seems consistent with Dr McGrath's views, in that he diagnosed Scheuermann's disease, which I understand to refer to a degenerative osteochondritis of the spine.

44. I am satisfied that the plaintiff does suffer from a widespread degenerative spinal condition, and that, apart from isolated episodes of what appear to be muscle pain only, this condition was broadly asymptomatic until the first accident. I am satisfied that the first accident, although relatively minor in terms of the forces involved, being a rear end collision in a car park, was sufficient to aggravate the degenerative condition in the manner described by Dr McGrath and Dr Battlay. In accepting this diagnosis, I also accept Dr McGrath's opinion expressed in his report of 11 December 1997 that the plaintiff had a "developmental weakness" in his spine, and that he would have come to problems with this condition eventually in any event. Dr McGrath concluded that,

"The motor vehicle accident ushered in the onset of disability several years prior to what might be expected."

45. I accept that, in addition to soft tissue injuries, the first and second accidents have both aggravated the plaintiff's underlying degenerative condition, asymptomatic before the first accident but rendered symptomatic by it and aggravated, in his case, by the second accident. Although the plaintiff says that the second accident has had the greater impact on him, I find that apart from time off in the two weeks after the accident, but not the full two weeks, he has continued to work in a manner where no significant disabilities are apparent, and indeed the greater proportion of the medical expenses have occurred between the first and second accidents. Nevertheless, I accept that the second accident further aggravated the plaintiff's condition.

46. 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'."

47. In assessing the plaintiff's damages I must consider each accident separately, as I have made a finding of contributory negligence in respect of the first accident. Nevertheless, the principles to be applied are the same. Apart from the transient soft tissue injuries, the plaintiff's ongoing problems, which I accept to be present albeit somewhat exaggerated by him, relate to the underlying degenerative condition in his spine rendered symptomatic by the first accident and further aggravated in the second accident. I have accepted Dr McGrath's opinion that the first accident "ushered in the onset of disability several years prior to what might be expected". I accept that this report was made before the second accident, and note that there is no subsequent report from Dr McGrath.

48. Where the action of a tortfeasor renders symptomatic a degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic degenerative condition, they will be held liable for that aggravation, but the fact that the condition was present and would have come to the symptoms must be taken into account. In Wilson v Peisley (1975) 7 ALR 571 Barwick CJ said at 575

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely king, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

49. It is thus necessary to assess the damages in respect of the aggravation of the underlying degenerative condition by considering its onset following the accident compared with its hypothetical onset had the accident not occurred, applying the principles set down by Dean, Gaudron and McHugh JJ in Malec v J.C.Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-3, and discounting the award of damages to take account of the possibility of onset in any event.

50. In some cases the evidence will be that a degenerative condition was rendered symptomatic, but the course of the condition absent the accident will be a matter of speculation only, with conflicting opinions from doctors who may say that the condition could have remained asymptomatic for decades or may never come to symptoms. It is commonly stated by orthopaedic surgeons that degenerative changes observable on CT or MRI scans may be conducive of symptoms in one person, yet in another be present for many years or decades with no symptoms at all. In such a case it is hard to say when the degenerative condition may have come to symptoms in the absence of the accident, and so a modest discount only is appropriate. In the present case, the evidence, put forward in the plaintiff's case, is less ambiguous. Dr McGrath, whose report I accept and who provides the key diagnosis, was of the view that the radiology showed the presence of adolescent Sheuremannn's disease, and that the accident "ushered in the onset of disability several years prior to what might be expected." On the basis of this I am satisfied that the accidents here have brought on the condition some years only before they would have inevitably become symptomatic, and it follows that I must assess the damages accordingly.

51. I accept that following the first accident the plaintiff has made regular complaints of back pain. I accept that these caused him some difficulties, and that he found it uncomfortable to study. I am not satisfied, however, that this is the sole reason for his failure to complete his tertiary studies, noting that he had deferred a year before the accident in 1995 after very mixed results in 1994 including a number of fails and failure to submit results. This is not a case where an academic record shows a marked discrepancy between the results achieved before and after an accident, and I must conclude that he was struggling with his studies in any event. While I accept that he gave up security work, I find that this was only part time, and that he has since March 1998 worked in a full time capacity for his fathers firm, with very limited time off, and with earnings steadily increasing to his estimate of $48,000 plus allowances for the year just past. I am satisfied from observing long periods of video film that the plaintiff is quite active at work and able to bend, run, lift and undertake a range of tasks. I accept Mr Dunn's evidence that from time to time he complains of back pain, and may leave early. I accept also that he can use this time to do paperwork for the firm. He should not undertake constant labouring duties, but this is not his role. I accept that the accident has limited his recreational activities, but his description of himself as bed bound from 7pm due to back pain I find to be an exaggeration, as it has not been referred to in the medical reports, and it is quite inconsistent with the range of activities with no apparent disability observed on video. At no point did I observe the plaintiff rub his back, stretch or otherwise show any sign of disability on this material.

52. In relation to general damages, I award $30,000 in respect of the first accident, reflecting the onset of symptoms of a degenerative condition which would have come to symptoms in any event. The bulk of this must relate to past loss, as I find he would have come to his symptoms in any event and I award interest of $25,000, generating a sum of $2,190 for a total award of $32,190.

53. Out of pocket expenses were agreed arithmetically in respect of the two accidents in the sum of $21,410.60, with $13,757.60 incurred in the period between the first and the second accident, and $7,653 incurred in the period between the second accident and the date of hearing. It seems appropriate on the basis of my findings that the first accident rendered symptomatic a genuine underlying condition to award the full amount of claimed expenses, and I award $13,757.60.

54. In respect of economic loss, the plaintiff has claimed a week immediately after the accident to reflect his absence from part time employment, and then an ongoing loss up to the time he commenced full time employment in March 1998 at the rate of $90 a week. I am not satisfied that this is made out as an arithmetic claim, as it appears that the plaintiff varied his part time work, gradually moving away from the security work towards the better paid work with Canberra Contractors, which became a full time job in 1998, and has increased in remuneration each year since. I am not satisfied that his work at the car wash would have been affected at all. I nevertheless am satisfied that the presence of back pain was a barrier to his part time work while he was attempting tertiary studies in 1996 and 1997, although it has not prevented him from undertaking what I consider to be relatively demanding full time work from March 1998 in a supervisory role with earthmoving and civil engineering contractors and continuing to work for that firm in light labouring jobs on a part time basis before then. I award $4,000 inclusive of interest for past wage loss.

55. I have already addressed the issue of the plaintiff's studies. I am not satisfied that the accident and the onset of back pain, which would have developed in any event, had a catastrophic impact on his studies, and that I should assess him on the basis that the accident denied him the chance to complete his qualifications. I find that he was struggling before the accident, and the long video segments did not suggest that he would be physically incapable of study at the Canberra Institute of Technology. The plaintiffs claim in respect of future wage loss was put forward on the basis that he was in effect now in sheltered employment, and that he could not hold down a job but for the fact that his father is one of the principals in the company. On his evidence, and the descriptions provided by doctors, I had a picture of very limited supervisory activities with extensive time off. This is far from the picture which emerged with the playing of the video and the cross examination which followed, and I am not satisfied that the plaintiff is presently disabled as he goes about his general duties as a supervisor in a civil engineering firm, apart from the occasional problems referred to by Mr Dunn. I accept that heavy labouring work is precluded, but this was not his plan. I must however make allowance for the loss of the chance to undertake heavier work, taking into account that Dr McGrath has said that he would have come to his present condition in any event, and that the 1996 accident brought this forward some years only. I thus make a modest allowance only for future economic loss in the sum of $8,000.

56. In respect of the second accident, while the plaintiff says that this was more severe, I find that it only kept him off full time work for a period of less than two weeks, and it seems that his complaints of pain have been maintained at the levels they were after the first accident, accepting some improvement before the second. I thus assess this on the basis of an aggravation of an already symptomatic degenerative condition, as well as some soft tissue injury to the neck and shoulder. Taking all of the evidence into account I assess general damages in the sum of $15,000, again making allowance under the principles of Malec v Hutton for the fact that he was already experiencing symptoms of his underlying condition which would have become symptomatic but for the first accident in any event. I allocate $10,000 to past loss generating interest of $344 for a total award of $15,344.

57. I award the claimed amount of out of pocket expenses in respect of the second accident, being $7,653.00. No claim for future out of pocket expenses was particularised in respect of either accident.

58. In respect of economic loss, the plaintiff seems to have lost some days only after the accident, and thereafter to have worked full hours, including often weekend work. I am not satisfied, for the reasons I have referred to earlier, that the second accident had any impact on his studies, or on his ability to work in a supervisory capacity on a civil engineering site. I accept that the aggravation has had some impact in respect of any future ability to engage in heavier work, but this of course was already affected by the first accident, and was always limited by the underlying condition. I make a modest award of $5,000 only in respect of past and future economic loss in respect of the second accident.

59. This amounts to an award of $57,947.60 for the first accident, and $27,997 for the second accident. It is necessary, however, to take into account the contributory negligence of the plaintiff in respect of the first accident. I have found that the plaintiff made no observation of the first defendant, and rather stopped to make his turn. To stop suddenly in a carpark without checking in the rear view mirror for the presence of another vehicle is negligent, and it seems to me in all of the circumstances of the case that a reduction of his damages of one third adequately addresses the issue of contributory negligence, and therefore award $38,631.75 in respect of the first accident.

60. I will hear the parties as to costs.

I certify that the preceding forty nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 4 August 2000

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Romano & Co

Counsel for the Defendant: Mr Pilkington

Solicitor for the Defendant: Abbott Tout Harper Blain

Date of hearing: 3, 4, 5 & 6 July 2000

Date of judgment: 4 August 2000