Smith v Perry [2001] ACTSC 44 (11 May 2001)

Last Updated: 11 June 2002

Christopher Sidney Smith v Matthew Perry [2001] ACTSC 44

(11 May 2001)

CATCHWORDS

DAMAGES - Assessment - Motor vehicle accident - Personal injuries - Aggravation of pre-existing degenerative condition - No issue as to principle.

Fry v McCufficke (1998) 1499 FCA

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

Ramsay v Watson (1960) 108 CLR 464

Wilson v Piesly (1975) 7 ALR 571

No. SC 693 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 11 May 2001

IN THE SUPREME COURT OF THE )

) No. SC 693 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CHRISTOPHER SIDNEY SMITH

Plaintiff

AND: MATTHEW PERRY

Defendant

ORDER

Coram: Master T. Connolly

Date: 11 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $90,089.60.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages arising from a motor vehicle accident which occurred on 14 December 1997 at the intersection of the Barton Highway and William Slim Drive in Gungahlin in the Australian Capital Territory. Liability for the accident has been admitted, and the matter proceeded by way of an assessment of damages only. The matter was heard over two days, 21 and 22 March. The parties were, however, unable to provide me with the out of pocket expenses figures during the hearing, due to problems arising from the financial status of the insurer. I gave the parties leave to submit this information in writing, and on 8 May an agreed figure was obtained by me.

2. The plaintiff, who was 38 at the time of the accident, was and remains a self employed rural contractor. He claims that the motor vehicle accident aggravated and rendered symptomatic a previously asymptomatic degenerative spinal condition, and that as a consequence he is significantly restricted in his ability to undertake rural work.

3. The plaintiff was a passenger in his wife's car at the time of the accident, and described a substantial impact, with the car being struck from behind by the defendant, and pushed forwards across two lanes of traffic. He says that he immediately felt pain in the back and a headache. The car was drivable, although he says that there were substantial repairs necessary to the vehicle. The accident was reported to Belconnen police by the plaintiff and his wife. The police report records "nil injuries".

4. He attended an after hours medical centre on the day of the accident and was seen by Dr Stevens, who reports that the plaintiff complained of headache and low back pain. He diagnosed soft tissue injuries, and ordered x-rays, but did not see the x-rays. On the following day, 15 December 1997, the plaintiff attended his normal family general practitioner, Dr Cross of Bungendore, and reported symptoms of neck and back pain. In her initial report she says that imaging showed degenerative discs, and she diagnosed soft tissue injuries and symptoms from a degenerative disc disease exacerbated by the accident. She referred him for physiotherapy, which was conducted through to February 1998 at the Queanbeyan Physiotherapy Centre.

5. He was referred by Dr Cross to Dr Bryan Ashman, an orthopaedic surgeon. In a report of 22 June 1998 Dr Ashman reported that he examined the plaintiff twice, in March and April of 1998, and had the benefit of both a CT scan and an MRI scan. He noted complaints of pain in the lumbo sacral spine, and found 75% range of movement in that area. He said that the MRI scan confirmed degenerative processes at L5-S1 and L4-5. He said:

"My final diagnosis in this man is of pre existing lumbo sacral and L4-5 disc degeneration which has been temporarily aggravated by the motor vehicle accident that he sustained in December 1997. I anticipate that the effects of this temporary aggravation will last for approximately 12 months."

6. It is the defendant's case that this opinion, in a doctor who was the first specialist the plaintiff was referred to by his treating general practitioner, is valid and consistent with all of the evidence, and that the motor vehicle accident of December 1997 caused only a temporary aggravation of a longstanding degenerative back condition. The defendant moreover argues that the plaintiff's degenerative back condition was longstanding, and had previously been symptomatic.

7. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesly (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 kind, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

8. The plaintiff has told doctors who had examined him that he did not have pre accident symptoms. Dr McGrath, who reported for the plaintiff in August 1998, says that the plaintiff has, "not confirmed pre existing pains." Dr Chandran, in his report of January 1998, concluded that the plaintiff's headaches, neck pain and back pain are consequent upon the degenerative changes "which were probably present prior to the accident in an asymptomatic fashion, and became symptomatic now." In a report from Dr Scott of May 2000 it is stated that the plaintiff gave no past history of relevance, in particular no musculo skeletal problems, and Dr Scott concluded that his headache and neck and back pain was the consequence of soft tissue injuries and "aggravation of a pre existent, but apparently asymptomatic degenerative lumbar back condition." In a report for the defendant Dr Battlay in March 1998 recorded that the plaintiff denies any previous back problems.

9. An examination of the plaintiff's general practitioner records, however, shows a previous history of complaints of low back pain and headaches, and consequent radiological examinations which indicated early degenerative signs. A note from his general practitioner, Dr Cross, of June 1987 records, "low back pain with headaches". This note goes on to refer to multiple falls from horses, and the plaintiff confirmed in his evidence that he used to undertake mustering work on horses, as well as competing in polo cross, and that falls from horses were a not uncommon experience. An x-ray of the plaintiff's lumbar spine taken at this time showed early osteophytes at L5. There is again a note for "back" in 1989, with a note "suggestions- Adrian Rumore". Mr Rumore is a Canberra physiotherapist. An x-ray of his lumbar spine in the general practitioners records in June 1994 showed degenerative change and disc space narrowing at L5/S1.

10. The general practitioners notes establish to my satisfaction that the plaintiff had been complaining of low back pain and headaches as far back as 1987, and the contemporary radiology shows that the degenerative condition of his lumbar spine was already present on x ray, and symptomatic. In this case the experts reports relied upon by the plaintiff all take a history of no prior back symptoms. For an expert report to be of assistance to the court the facts on which it is based must of course be made out on the evidence. In this case I am satisfied that the doctors who based their opinions on a history of no prior relevant back symptoms were not in possession of all of the facts, and to this extent their opinions, based as they are on and incorrect medical history, are accordingly of less assistance to the court (Ramsay v Watson (1960) 108 CLR 464).

11. The plaintiff also has a longstanding medical history of significant abdominal problems, resulting in pains he has described as "knife like" between his shoulders, and as radiating to his back, and headaches. He has been diagnosed with thromocytosis, and is now under careful medical supervision, and a medication regime which, I am satisfied on the evidence, keeps this condition under control. I note however that in a report of September 1997 Dr Ardlie made reference to recurrent visual disturbances associated with headaches. This significant complaint in relation to headaches just three months prior to the accident is difficult to reconcile with his claim that headaches are associated with the accident and that there was no relevant history.

12. The plaintiff acknowledged that, when the physiotherapy ceased in early 1998 as a consequence of the insurer ceasing to pay, he effectively ceased treatments. He undertook one session of physiotherapy at Queanbeyan Hospital, but found this less than satisfactory. He says that he could not afford treatment himself. He also said that cost was the reason why his general practitioner notes show not treatments for back pain, although he acknowledged that he does have private health insurance, and also that his notes show regular consultations for other matters. He saw his general practitioner on four occasions in 1998 where back pain is recorded in the notes, frequently with other matters, but has not attended in 1999 for back problems, although there were 8 visits for other matters relating to his blood condition, and a similar number of visits in 2000. At least 2 visits on unrelated matters are recorded to February 2001.

13. The plaintiff gave evidence that he maintained a diary where he recorded his pain levels on a scale of 0 to 10, and he has consistently recorded back pain in the scale of 7 or more. He says that he did this on advice from an acquaintance with a view to legal proceedings. These records of pain are hard to reconcile with his lack of attendance on his general practitioner, and with his levels of activity and lack of apparent disability on video surveillance. In a report from Dr Van Der Rijt of 7 April 1999 tendered in the defendant's case the doctor records a history of the plaintiff saying that he can now walk whereas it had previously been difficult to walk, and asserting that his back pain is never below ten out of ten. This is quite inconsistent with the surveillance material, his acknowledged activities at the time, and his record of lack of attendances for any treatment.

14. The plaintiff has continued to operate his business as a rural contractor, particularly in fencing, and advertises his expertise. His taxation records show that this business did better than it ever has in the 1999-2000 year. In the years prior to the accident his taxable income had varied, in the period 1993-1997 from $5,213 to $9,449, with 1993-4 being his worst year, and 1994-5 being his best. In the years after the accident his taxable income was $4,291 for 1997-8, when just over half of the year was post accident, $6,524 for 1998-99, and $25,594 for 1999-2000. The plaintiff says this was because of high demand for fencing before the introduction of the GST, and also because a lot of other contractors in the district were busy on another job. He acknowledged, however, that he would again seek to meet any high demands. It is his case that because of his back injury he has been forced to employ additional labourers to assist him, but he acknowledged in cross examination that it was a sensible business practice to engage labourers to allow him to undertake supervisory functions, and undertake more jobs in less time. He said that he has had to fit a mechanical device to his tractor to dig post holes, which he previously could do manually, but he again acknowledged that this was a sensible business practice to undertake the work more quickly and with less effort.

15. The plaintiff acknowledged that he continued to work long hours. Video tapes were shown of the plaintiff leaving for work, and displaying considerable agility in climbing to the back of a utility truck and bending deeply from the waist to adjust the load. He was also shown at the end of a long day when he said he was assisting in putting up windmills, and in none of the tapes was any disability apparent.

16. The plaintiff says that before the accident he regularly worked as a farrier, shoeing horses in the district, and he has been unable to continue with this work. He described this as being very heavy work, with involved him having to get underneath the horse and at times support the horses weight with his back. This is clearly unsuitable work for a man with a relatively advanced degenerative back condition. Although he says that this was very profitable, he has also told doctors that his fencing is the more profitable enterprise, and the taxation records confirm that the business had its most successful year in 1999-2000 when he did no farriers work.

17. 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'."

18. In this case I assess the plaintiff on the basis that the rear end motor vehicle collision in December 1997 produced some soft tissue injuries which have now resolved, and aggravated a longstanding degenerative spinal condition. I am satisfied that this aggravation was essentially temporary and has largely resolved. I accept that for the year or so after the accident the plaintiff was unable to carry on his rural contracting business as fully as he would otherwise have done, and that the back problems caused him to abandon that aspect of the business related to farriers work.

19. In cases where a degenerative back condition is aggravated an issue frequently arises as to whether the plaintiff would have come to his present symptoms regardless of the accident. It is frequently observed by orthopaedic specialists that many members of the community will have degenerative signs evident on radiology, but remain symptom free. The court must make an assessment as to whether the person would remain symptom free, or come to their condition at trial regardless of the accident. This is necessarily a matter where probabilities are being assessed, and in this case it is relevant to observe that the plaintiff had been for many years engaged in rural labouring activities, including mustering activities where falls from a horse was a frequent risk, as well as competitive polo cross. His medical notes record such falls, which have resulted in some internal injuries and skeletal injuries, not related to his degenerative spinal condition, but evidencing the fact that his body was exposed to risk in these activities. For such a man it seems to me that a degenerative condition evidenced on x-ray in 1987 and where symptoms were recorded by the general practitioner at that time which mirror present symptoms should be considered to be a condition that the plaintiff would have come to regardless of the accident.

20. I accept that the plaintiff has had a greater degree of back pain since the accident, but I also find that he has not presented for treatment, and I find his claim that this is due to cost inconsistent with his general practitioners notes which record regular consultations for other matters. I am satisfied that his descriptions of his symptoms to doctors and to the court have been overstated, and that he has not fully disclosed his prior symptoms of back pain and headache.

21. In relation to general damages, I assess the plaintiff in the sum of $45,000, with $30,000 attributable to past loss, generating interest of $2,044 for a total award of $47,044.

22. Out of pocket expenses were not capable of resolution at the trial. This was a matter where the third party insurer changed shortly before trial due to the problems of the HIH insurance group, and I gave the parties leave to submit an agreed figure for out of pocket expenses, which was received on 8 May 2001. I award the agreed sum of $2,545.60, noting that $847 has already been paid and so is to be credited.

23. Future out of pocket expenses should be limited due to the nature of my findings in relation to the largely temporary aggravation, and I award the sum of $500.

24. The plaintiff's claim for past economic loss was particularised on the basis that 1999-2000 was an anomaly and should be disregarded for the purpose of comparing pre and post accident earnings. While I accept that this was a busy year, the fact is that the plaintiff did undertake the contracting work, and he said in cross examination that he would do so again. No financial records were tendered to suggest that he is no longer undertaking fencing contracting, or that there has been a significant drop off. I am left with the evidence that shows that, while there was some drop off in the year after the accident, his business has otherwise shown steady growth.

25. He claims the cost of contract labour, and gave evidence, taken from his diaries, that certain contract labour would not have been engaged but for his accident. I was not satisfied that this claim is made out, given his acknowledgment that it was sensible business practice to employ men to grow his business. His records show contract labour was used before the accident as well, and he has always claimed this, quite properly, as a business tax deduction. For this reason alone it would be inappropriate to award the total cost of contract labour.

26. I am satisfied that in the year after the accident the plaintiff did experience heightened levels of back pain attributable to the accident, and this had an effect on his business, in that it limited his ability to engage in rural contracting work. While he has been able to return to fencing, and acknowledged that this side of his business had grown and was profitable, he has avoided farriers work, and I accept that he has done this because of the accident. I am satisfied that this would not have been appropriate work for him in the long term, but I accept that the accident was the cause of his abandoning this work now. I also accept that it is no longer appropriate for him to engage in mustering work on horseback in rough country, although again this would not be appropriate in the long term given his longstanding degenerate back condition which had been symptomatic prior to the accident.

27. This seems to me to be a case where it is appropriate, taking account of what the Federal Court said in Fry v McCufficke (1998) 1499 FCA, to adopt a buffer approach to economic loss. I award the sum of $15,000 in respect of past loss, inclusive of interest. For the future, while I am satisfied that the immediate effects of the aggravation are now past, I accept that he has had to rearrange his activities, and has given up aspects of his rural contracting work that were remunerative. It is not possible from the financial records that were tendered to accurately attribute the sources of his income between the various forms of rural work. He has given varied accounts of this, saying to Dr Battlay, according to his report of December 1998, that horse shoeing was, "99 per cent of his work before the accident", but then in a subsequent visit to Dr Battlay, saying, according to his report of September 2000 that "he admits that fencing has always been the more lucrative part of his occupation." In his evidence in court he said shoeing horses would have been about half of his work before the accident, but the fact remains that his best earnings, by a considerable margin, occurred in the most recent full financial year, when he did no shoeing and worked solely as a fencing contractor with teams of contract labourers under him.

28. His work as a fencing contractor, where he is able to supervise a team of workers, will remain viable, but there should be some award for the premature loss of his other activities, tempered by my finding that this type of work would not have been viable in the long term given his degenerative condition and prior symptoms. I award the sum of $25,000 in respect of future economic loss.

29. This amounts to a total award of $90,089.60 which I consider appropriate in all of the circumstances and award, with costs.

I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 11 May 2001

Counsel for the Plaintiff: Mr Mildren

Solicitor for the Plaintiff: Meyer Clapham Lawyers

Counsel for the Defendant: Mr Austron

Solicitor for the Defendant: Hunt & Hunt

Date of hearing: 21 & 22 March 2001

Date of judgment: 11 May 2001