Eikrem v Fitzgerald [2003] ACTSC 66 (19 August 2003)

Last Updated: 2 September 2003

PAUL DANIEL EIKREM v DONALD FITZGERALD

[2003] ACTSC 66 (19 August 2003)

DAMAGES - personal injury - soft tissue neck injury - no issue of principle.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No SC 470 of 2000

Judge: Connolly J

Supreme Court of the ACT

Date: 19 August 2003

IN THE SUPREME COURT OF THE )

) No SC 470 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PAUL DANIEL EIKREM

Plaintiff

AND: DONALD FITZGERALD

Defendant

ORDER

Judge: Connolly J

Date: 19 August 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $216,133.70 with costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred at about 9.20 am on 11 July 1998 at the intersection of Marcus Clarke and Alinga Streets in Canberra City. The plaintiff was on his way to work in the city, and says that he drove along Marcus Clarke Street and came to a halt at the lights at the intersection, being in the right-hand lane. He indicated his intention to turn right into Alinga Street, as he usually did in order to park at his office nearby. He says that as he was stationary at the lights he was struck from the rear by the defendant, and as a consequence of the impact has sustained soft tissue type injuries to his cervical spine, which he says has had a significant impact on his employment as a sales executive in the telecommunications industry.

2. When the hearing commenced on 18 March 2003 it was apparent that there were significant issues between the parties on both liability and assessment. The defendant's case was that the accident occurred in quite different circumstances, with the plaintiff in effect accelerating rapidly in the left-hand lane in order to overtake the defendant, and then suddenly cutting in front of the defendant as the defendant was approaching the lights.

3. There were expert reports tendered from road traffic engineers giving competing versions of the mechanism of the accident. Mr FW Schnerring, a traffic and road safety engineer, prepared a report based on the plaintiff's version of the facts, and Mr W Karamadis, an expert in forensic engineering and collision reconstruction, prepared a report based on the defendant's version of the events. Mr Schnerring gave evidence and was cross-examined. When the defendant gave his oral evidence and was cross-examined, his evidence was in certain respects inconsistent with the version of events that had been set out in the expert reports, and indeed his oral evidence as to where his vehicle had been and speeds at certain points was such that, on Mr Schnerring's evidence, the accident could not have occurred in the manner described by the defendant. At the end of the first week of hearing I made the observation to counsel that it would be necessary to closely examine the transcript of this evidence, and that in particular it would be necessary for the defendant's expert to be appraised of the version of events sworn to.

4. At the resumption of the hearing I was advised by counsel that the defendant was no longer contesting liability, and the matter would proceed by way of an assessment of damages only. It seems to me that this was entirely appropriate.

5. The plaintiff was born in July 1959 in Canada, and migrated to Australia with his family in 1971. He completed his secondary education in Canberra, and studied at the University of New South Wales and the Australian National University to graduate with a Bachelor of Economics degree in 1980. In the early 1980's he worked for oil exploration companies in Canada and Australia, and developed an interest in information technology. He undertook full-time study for a period in British Columbia to obtain a further qualification by way of a Diploma of Technology in 1985, and then worked in the information technology field as a consultant, developing software systems for share brokers. He moved to Norway for a period in 1993 where he was married for the first time, but this did not last and he returned to Australia in late 1993, and worked as a sales executive for a software company.

6. From this point on Mr Eikrem has worked in the area of sales for information technology or telecommunications. He joined Optus in 1994, and at the time of the accident had risen to the position of an account manager. This was a senior sales position based in Canberra, with responsibility in effect for major sales to large clients of telecommunications services. This is an industry that emerged following the opening up of the market to competition. Where all major corporate, government and institutional clients would have utilised the services of Telstra, changes in the late 1980's saw this market become competitive. Optus, then as now, was a major competitor for such services with Telstra, and the plaintiff's role was to develop tenders to win over major clients. Although a strongly sales focussed job, it also required technical skills, and the plaintiff gave evidence of how he would work with the technical side of the firm to develop particular applications or innovations to suit specific needs of particular clients.

7. The position was well remunerated, and the plaintiff's evidence, supported by documentation, was that in the financial year 1998/99 his package comprised a salary component of $82,200, a car allowance of some $18,000, and commission earnings of $35,200 assuming he achieved his sales targets. He gave evidence that these commissions could rise if target sales were exceeded.

8. It is the plaintiff's case that the soft tissue injuries that he sustained as a result of this rear end collision affected his ability to perform high pressure sales work, and that his pain and restriction in movement lead to him being perceived at work as a person who was not pulling his weight in a highly competitive work environment. His case is that as a consequence of the accident he was, in effect, forced into resigning from Optus at the end of August 1999. He received a severance package from Optus in the order of some $64,000 after tax.

9. It is not his case that the soft tissue injuries precludes him from working, or indeed from earning substantial earnings in his profession. He continued on high earnings until his resignation. He then worked from December 1999 to May 2000 with a small telecommunications venture, Tri Tell Communications Pty Ltd, which was just starting up. This was not a profitable venture, and he did not in fact draw a salary, but such is the nature of this industry, and had it proven viable it could have been highly remunerative. He found employment in the telecommunications industry in the United Kingdom with Global One as an accounts director performing similar work to the work he had been doing with Optus, and this position, which commenced in February 2001, was well remunerated, with a salary component of £65,000 and potential for commission earnings that the plaintiff particularised at between £30,000 and £45,000.

10. This employment finished in September 2002, and he left with a redundancy type payment of some £27,000. The plaintiff said that this was before tax, and at the time of giving evidence he was not entirely clear what the taxation implications of this were going to be. It is the plaintiff's case that the reason he was made redundant was his accident-related disabilities. He has subsequently returned to Australia, and by the time the hearing commenced he said that he had obtained a contract to commence employment with another telecommunications provider, AAPT, as an account manager. His remuneration package being in the order of $110,000. When the hearing resumed in July 2003, the plaintiff said that he had in fact commenced employment on 27 March 2003, and was continuing with that work.

11. The plaintiff says that as he was stationary at the lights he was hit from behind, and he estimated that the defendant was doing about 20 km per hour at impact. He says that his car was pushed forward, and sustained damage to the rear bumper area. There were photographs of the damage, which appear relatively minor, but which required repairs in the order of some $3,000. At the scene of the accident he had a discussion with the defendant, and phoned his employer to report that he had been involved in the accident. He was wearing his seatbelt at the time of the impact. He initially thought that he had not been injured, and continued to work on that day.

12. The plaintiff was understandably concerned about the damage to his car, and he commenced the appropriate process to make a claim on his insurance, stating his version of the facts of the accident. The defendant, who was insured with the same company, also put in a claim for the damage to his vehicle with his version of the facts. It appears that the defendant's claim was accepted first in time, and so when the plaintiff's claim for property damage came for consideration the insurer had a record of him being the driver considered at fault. The plaintiff began protracted correspondence with the insurer.

13. The plaintiff, as is apparent from his employment history, may fairly be described as a person used to a high pressure sales environment. He clearly is able to articulately and persuasively put his position, whether orally or in writing, and it seems that entering into a debate by way of correspondence is not an unfamiliar procedure for him. I have by way of evidence much of this type of material in this case, both in respect of the insurance dispute on the property claim, which is not relevant given that liability has now been acknowledged, and also in respect of disputes within the workplace at Optus, leading up to his redundancy, and within Global One leading up to his severance package with the English employer.

14. The plaintiff says that he completed his work on the day of the accident with little difficulty until the late afternoon and evening when he noticed a progressive stiffness about the shoulders, and over the next few days he developed headaches, which increased in severity. He attended his local general practitioner and was prescribed the usual anti-inflammatory medication and Paracetamol. An x-ray revealed no frank injuries, and he was referred for physiotherapy, but his neck pain continued. In July he started attending an osteopath and chiropractor, but despite treatment over some months he continued to experience increasing neck pain and headaches. He obtained medical certificates for occasional days off, and withdrew from participating in a work skiing competition. His evidence and that of his wife is that he had been a keen and accomplished skier.

15. The plaintiff described the classic symptoms of soft tissue whiplash type injury arising from a rear end motor vehicle accident which, on its occurrence, appeared to be relatively trivial. A medico-legal report from Dr G Griffith, consultant surgeon, of January 1999 makes the diagnosis of musculo-ligamentous strain to the cervical and lumbar spine. This diagnosis is consistent with the only medico-legal report tendered in the defendant's case, that of Dr K Hashemi. Dr Hashemi examined the plaintiff in June 2002 in the United Kingdom. In his report Dr Hashemi stated that -

... the mechanism of the injury in question would have resulted in acute neck strain. The initial symptoms experienced by Mr Eikrem, namely pain and stiffness of his neck as well as headaches, are consistent with this type of injury, though the degree of severity, often varies between individuals.

16. In August 1999 Dr Griffith again reported for the plaintiff, maintaining his diagnosis, and observing that there was also a degree of aggravation of pre-existing asymptomatic cervical spondylosis. He noted in this report, of 18 August 1999, that -

This man is undoubtedly fit for work, and is discharging his normal work duties but obviously at a markedly decreased level of efficiency.

17. This report was some two weeks before the plaintiff left Optus. Dr Griffith again reported in December 2001, and maintained his diagnosis, with a prognosis of ultimate resolution of the symptoms, although he noted that radiology confirmed that there had been pre-existing age-related degenerative changes.

18. The plaintiff was referred by his general practitioner to Dr G Eaton, occupational physician, in March 1999, and he coordinated the development of a program at the Canberra Injury Management Centre which involved physiotherapy and some psychological counselling on pain management issues. Dr Eaton confirmed a diagnosis of -

Whiplash (acceleration/deceleration) injuries to the cervical, thoracic and lumbar spines resulting in initial acute musculo-ligamentous strain which became chronic. Probable aggravation and possible acceleration of underlying cervical spondylosis. Associated symptoms of anxiety, stress and depression.

19. There is also a medico-legal report from Dr RS Browne, a consultant orthopaedic surgeon in Hampshire, United Kingdom. He has confirmed the diagnosis of soft tissue injuries consequent upon the motor vehicle accident, but also notes, in his report of May 2002 that the plaintiff had developed a shoulder difficulty, described as a frozen shoulder. Dr Browne's report expresses the view that this is attributed to the strain of working at inappropriate workstations with the accident-related neck problems, and so attributes this condition to the effect of the accident, although it only emerged, on the plaintiff's evidence, some years after the accident. Dr Browne predicted that the condition would resolve, and it is the plaintiff's evidence that it has resolved. On all of the medical evidence I accept the relationship between the accident and the subsequent development of the now resolved frozen shoulder.

20. Although the plaintiff and his wife gave evidence, which is consistent with all the medical reports, of ongoing neck discomfort, the plaintiff did not present as or claim to be an invalid. He has maintained employment in senior sales roles in the telecommunications industry, and acknowledges that he continues to try to be active. He can still ski on the more difficult runs but, he says, that he is far more guarded and cautious. I am satisfied on all the evidence that the ongoing soft tissue injuries continue to impact on his range of activities, occupationally, recreationally and domestically by way of pain and inconvenience, although he perseveres.

21. He says that he recorded in a diary instances of headaches and neck pains, and this was tendered as exhibit N being a range of entries from July 1998 to July 2000. Such documents can frequently be treated with some caution by courts, being in essence self-serving, but it is apparent that the plaintiff has quite frankly recorded many instances which show that he has persisted with vigorous activates, but that neck pain and headaches interfere. A couple of examples of this would be the entry for 19 April 2000 which states "Headache yesterday and today - due to lifting to help a gyprock contractor move some tools into our house". On 11 May 2000 he records "I've been painting in the basement today and at 5 pm I find my neck and upper back to be very stiff and sore". On 16 September 1999 he recorded back pain noting "Yesterday's exertions in carrying my son for some of the time while my wife and I visited the Chifley Cave at Jenolan."

22. These diary entries are not consistent with a self-serving attempt to paint a picture of gross disabilities, and indeed the impression that I formed of the plaintiff, after extensive cross-examination, was not that of a person exaggerating his claims. He documented with precision what he felt to be his case, and he presented this with a high degree of particularity, but he acknowledges that he is able to engage in a wide range of activity, albeit with a degree of neck pain and headaches.

23. In relation to general damages, I assess the plaintiff on the basis of the soft tissue injuries sustained in the accident, and I also take into account the development of the frozen shoulder, which I accept was a consequence of his continuing to work with neck difficulties. I accept that he continues to have symptoms of neck pain and discomfort, exacerbated by activity or prolonged work at a computer work station which also results in headaches. I accept that this limits his recreational and leisure activities, although he is still able to engage in activities such as skiing. I accept that before the accident he was a very keen participant in outdoor activities, some of which he has not been able to resume, such as scuba diving, where heavy tanks must be carried. In considering his ability to engage in extreme sporting activities, I must also bear in mind that he and his wife had their first child in September 1998, which would have meant that he would have had less time to pursue his leisure activities.

24. I find that the soft tissue injuries have also rendered symptomatic some age-related degenerative spinal conditions, as outlined by Dr Griffith. I note his prognosis for ultimate resolution of his accident-related symptoms, although other doctors have indicated that full resolution may not occur. I generally find that the impact of the accident-related soft tissue injuries will subside over the next 3 to 5 years, leaving him with such residual difficulties attributable to the underlying degenerative condition. I note that this time frame is consistent with the claim for future out-of-pocket expenses.

25. I assess general damages in the sum of $45,000, with $30,000 for the past, generating interest of $3,067 for a general damages award of $48,067.

26. Out-of-pocket expenses were claimed in the arithmetically agreed sum of $13,066.70, and I would award this entire sum, as I accept the link made by Dr Browne between the now resolved frozen shoulder and the accident. I accept that he will require some future out-of-pocket expenses by way of general practitioner visits, medication as required and physiotherapy. I would award a discretionary buffer of $5,000 for future out-of-pocket expenses extending over the period set out in the particulars.

27. The plaintiff's economic loss claim for the past and future is premised on the assertion that, but for the accident, he would still have been working for Optus. The defendant submits that the plaintiff left Optus due to a personality dispute with his supervisor, Mr Thompson, and, after leaving with his redundancy payment, subsequently found employment at high earnings with a British telecommunications company, but again left due to disputes with management. The plaintiff argues that in each case the dispute was really triggered by his neck and back complaints.

28. There is an enormous volume of material, in exhibits O-AY detailing aspects of the plaintiff's employment, and the disputes that arose between him and his employers. I am satisfied from all of this that the telecommunications industry, at the level at which the plaintiff is employed, is a highly competitive industry, and that at Optus this competition has manifested itself in a range of internal workplace disputes. It is neither necessary nor appropriate to go into minute details here as to the rights and wrongs of the plaintiff's dispute with Mr Thompson. On certain aspects Mr Thompson seems to have been clearly wrong in some of his assertions. It is clear from the documents that it was asserted that the plaintiff had abused his sick leave by being on a diving holiday in 1997 while on sick leave. The plaintiff tendered documents that satisfy me that he had taken recreation leave, but fell ill while on leave, and obtained medical certificates to allow him to reclaim these days, so that the work records showed him as being on sick leave while in Cairns. On the other hand, Mr Thompson seems to have been acting quite correctly in reminding the plaintiff of his obligations in relation to the proper use of mobile phones, and was correct in taking the plaintiff to task for allowing his wife to use his company phone, rather than her own mobile phone. There is extensive documentation on this issue, and one is left with the impression that a simple apology could have laid the matter to rest, but this was not done.

29. There was extensive evidence from a former work colleagues of the plaintiff. What emerges is that I am satisfied that the plaintiff and Mr Thompson did not see eye to eye, and that Mr Thompson eventually made the plaintiff's position at Optus untenable, and that he left. I am also satisfied that this was the case with at least one other worker who left due to a difference with Mr Thompson, and that eventually Mr Thompson himself left. The level of mutual competition, if not outright suspicion, within the workplace is shown by evidence that it was reported by one of the plaintiff's colleagues that he was laying pipes in his yard on a day when he was on sick leave. I accept the plaintiff's evidence that on this day he was in his garden placing plastic irrigation pipes when a colleague out on a walk spoke with him. While laying pipes gives the impression of a person engaging in very vigorous activity while on sick leave, I find nothing improper in him being in his garden on a day when he says that he had a headache and so did not go to work.

30. There was also evidence and counter evidence about his activities at the workplace in regard to some private share trading, which he conceded he had done from time to time. Evidence was called that he had been observed reading the newspaper at work. This, it seems to me, is consistent with a range of activities, including checking for tender advertisements for potential telecommunications deals.

31. A significant volume of correspondence was generated over an assertion that he was taking too many sick days corresponding with a weekend. Again, I find nothing sinister here, and generally accept the plaintiff's analysis that, assuming a random distribution of sick days, 40 per cent would correspond with a day adjoining a weekend.

32. The extensive e-mail disputes between the plaintiff and his employers show a pattern of disputes which may indicate that personality clashes played a part in him leaving the workplace. His history since the accident is of periods of high-level employment and periods of unemployment.

33. In May 2002, Dr Browne reported that -

Although he is coping with his current job, he finds work more taxing than before the accident: his effectiveness and efficiency have declined.

34. In his report of June 2002 Dr Eaton was more pessimistic, stating that -

Clearly Mr Eikrem's work capacity was initially quite severely affected due to his injuries and his most recent report from the UK confirms ongoing severe disabling symptoms.

This, it seems to me, rather overstates the case and is not consistent with the earlier reports.

35. Dr Hashimi expressed the view in his report of June 2002 that -

Considering his training and occupation, his position in the open labour market should not be compromised by the accident in question and subsequent symptoms.

36. The plaintiff tendered a document being a performance review from Global One dated January 2002, which showed that he had been assessed by his then manager as having the second highest overall rating of "exceeds expectations", and was regarded as demonstrating great commitment to his tasks and being a good team leader. The plaintiff said that he felt that he fell out of favour at Global One because of his need for ergonomic workplace restrictions, and the need to take breaks from work. He acknowledged, however, that the company had been taken over by a former competitor, and that there were too many people at his level, and so some redundancies were inevitable. Again, he presents with the difficulty of some obvious restrictions of neck movement and headaches, but has demonstrated an ability to perform demanding work at a high level, and has a history of receiving redundancy payments due to a range of workplace issues.

37. Overall I am not satisfied that the correct approach in respect of past economic loss is to award the plaintiff the full rate of his Optus earnings for all the periods that he was out of work, less his redundancy payouts. It seems to me that, save perhaps for Dr Eaton, none of his medical evidence supports the proposition of a full loss of earning capacity. Indeed, he has demonstrated high levels of work performance. He left both Optus and Global One under redundancy arrangements, in circumstances where he acknowledged other sales executives also left. All of the evidence supports the view that this is a highly competitive and, using the colloquial phrase, "dog eat dog", environment. The plaintiff said that economic conditions meant that after he left Optus, and after his start up venture proved non-viable, the best option for him was to seek employment in the United Kingdom rather than Australia, and he succeeded in finding very highly paid work there. He has since returned to Australia, and although his earnings are not as high with his present employer, it is a matter of notoriety that there have been significant changes in the telecommunications market in recent years, with major collapses both here and abroad, which must impact on the industry. Indeed, he said the state of the industry in Australia led him to try his luck abroad.

38. That said, I am also satisfied that the plaintiff's genuine soft tissue injuries have had an impact on his employment. I accept that the workplace is high stress and requires, as he said "110%" effort, and that in this environment the need to take breaks, and to be seen perhaps as not giving 110% would have disadvantaged the plaintiff compared to his peers who were not so disadvantaged.

39. In relation to past economic loss, taking all the above into account, I assess his loss, inclusive of superannuation, interest and other benefits at $70,000. In relation to the future, I accept that for the next five years his ongoing accident-related neck discomfort and restrictions in mobility, as well as his headaches, will disadvantage him in a highly competitive industry, and this must sound in damages at a level commensurate with the levels of earnings that he has demonstrated an ability to command. Again, this must be dealt with as a buffer type claim inclusive of superannuation, and it seems to me that the sum of $75,000 would again fairly compensate the plaintiff.

40. The plaintiff particularised a quite substantial claim for past Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 domestic assistance. The medical evidence does not, it seems to me, justify a need for extensive care for these soft tissue injuries. That said, I am satisfied that there has been some rearrangement of domestic activities, which should sound in a modest award for past and future gratuitous care in the sum of $5,000.

41. During the final day of hearing Mr Purnell SC, for the plaintiff, asked me to rule that this was an appropriate case for senior counsel, and I so ruled. The issues in relation to liability were very complex on the original case, and it was only after the cross-examination of the defendant that this aspect of the case resolved. I can understand that the plaintiff would have felt very aggrieved by the fact that he has been accused of quite erratic driving behaviour, which was found to be an unsustainable proposition when fully tested.

42. On all the evidence I am satisfied that damages should be awarded in the sum of $216,133.70 made up as follows, which I consider to be appropriate.

General damages $45,000.00

Interest $ 3,067.00

Past out-of-pocket expenses $13,066.70

Future out-of-pocket expenses $ 5,000.00

Past economic loss $70,000.00

Future economic loss $75,000.00

Griffiths v Kerkemeyer $ 5,000.00

43. I award the plaintiff the sum of $216,133.70 with costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 19 August 2003

Counsel for the plaintiff: Mr FJ Purnell SC

Solicitor for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Ms D Fitzsimons

Solicitor for the defendant: Phillips Fox

Dates of hearing: 18-21 March, 14-15 July 2003

Date of judgment: 19 August 2003