Danaher v Holt [2004] ACTSC 128 (23 December 2004)

Last Updated: 31 January 2005

WILLIAM DANAHER v KEVIN HOLT [2004] ACTSC 128

(23 November 2004)

EX TEMPORE JUDGMENT

No SC 445 of 2003

Judge: Crispin J

Supreme Court of the ACT

Date: 23 November 2004

IN THE SUPREME COURT OF THE )

) No SC 445 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WILLIAM DANAHER

Plaintiff

AND: KEVIN HOLT

Defendant

ORDER

Judge: Crispin J

Date: 23 November 2004

Place: Canberra

THE COURT ORDERS THAT:

1. there be judgment for the plaintiff in the sum of $153,273.87;

2. the defendant to pay the plaintiff's costs.

1. This is an assessment of damages. On 12 November 2002, the plaintiff was the rider of a motor bicycle travelling in a northerly direction on Telopea Park Road, Barton which is a public street in this Territory.

2. The defendant was the driver of an Australian Post Ford van, travelling in a south-easterly direction along Currie Street, Barton. As the van entered the intersection of Currie Crescent and Telopea Park Road it collided with the bicycle being ridden by the plaintiff.

3. A breach of the defendant's duty to the plaintiff has been admitted and there has been no suggestion of contributory negligence. I am required only to assess damages.

4. The plaintiff was knocked to the ground in the accident. Whilst lying on the road, he had some fear that people who were about to move him might cause him serious injury if he had sustained an injury to his neck. Mercifully, that proved not to be the case.

5. He was taken to hospital and kept there for a period of about 6½ hours before being discharged. He said that upon being discharged he felt very sore, battered, bruised and shocked. He saw his General Practitioner, Dr Horsley, on 14 November 2002, that is two days later. Dr Horsley noted in an examination the following injuries:

"shallow grazes over the left lateral anterior shin, bruising over the lateral and medial malleoli of the right elbow and grazes over the right lateral lower ribs . . ." , bruise to the right hip, tenderness of the anterior superior iliac spine, reduced range of movement to the left shoulder. Tenderness over the long head of the biceps and supraspinatus tendons.

6. Dr Horsley also noted that the right shoulder had a large and obvious fusion and that the plaintiff had been unable to move it more than 15 degrees in any direction. He prescribed Celebrex and Panadeine Forte and gave the plaintiff a certificate to the effect that he would be unfit for work until 25 November 2002.

7. The plaintiff said in evidence that his right shoulder gradually lost movement and was later diagnosed as a frozen shoulder. It was very painful and the pain became much worse at night. He found over time that Panadeine Forte was virtually useless and said that he had no real relief prior to an operation carried out by an orthopaedic surgeon, Dr Woods, on 26 March 2003.

8. He had seen Dr Woods earlier in that year and then had Cortisone injections but they apparently proved ineffective. Following the operation, his condition improved gradually over a period of some months.

9. It also appears that as a consequence of the accident, the plaintiff suffered some degree of nervous shock and this later required him to consult a psychologist.

10. Following the operation, the plaintiff engaged in physiotherapy and a gymnasium program that had been suggested to him by those advising him in relation to his medical condition. Nonetheless he was unable to return to work as an auditor at the Australian National Audit Office (ANAO) until 21 July 2003.

11. For some time prior to his return to work, the plaintiff had developed what he described as an aggravation of "restless legs" syndrome and had great difficulty in sleeping. He attempted to alleviate that problem in a number of ways including exercise to the point of making himself exhausted.

12. When he initially returned to work he was not permitted to work for more than about 30 minutes at a time without taking a break. He was re-employed on a three hours per day basis for three days per week but gradually built up his hours and was able to return to work on a full time basis on 17 November 2003.

13. However, it is clear that upon his return to work, he was assigned auditing work that was somewhat more simple than that which he had previously undertaken in his work with the ANAO. He was confined to what he described as follow-ups, which apparently were investigations intended to ensure that recommendations made in previous performance audits had been properly implemented. He found the work to be less challenging and plainly, he found it less satisfying.

14. He had been a very keen cyclist prior to the accident, cycling up to 250 or 300 kilometres per week and competing in Masters' Games, where he had enjoyed some success. It is abundantly clear from his evidence that he was a cycling enthusiast and that this was an important part of his life.

15. He was able to resume cycling about the time he returned to work in July 2003 but obviously on a much more limited basis. He has clearly spent a great deal of time since then working out in gymnasiums and riding bicycles in an attempt to regain the fitness that he had enjoyed prior to the accident. He initially resumed cycling on an indoor trainer set up near a television set and has gradually built up his cycling activities since then to the point where he now cycles some 120 to 130 kilometres per week. However, he is unable to attain the speeds that he was able to reach before and has been unable to return to velodrome competition, though he has taken part in some road races.

16. Shortly after his return to work he felt that he was becoming somewhat paranoid and after an episode, which he described as a "huge dummy spit", he was advised by his case manager to see a psychologist, Mr Parsons. He saw Mr Parsons some five times over a range of stress related problems. In particular, he had experienced difficulties in sleeping and found that he constantly had three images in his mind. The first was the face of the driver whose vehicle had collided with him. The second was the image of people standing over him and the third was of his helplessness as he was moved from the road. As a result of seeing Mr Parsons he came to understand his feelings about these matters better and has apparently made a substantial recovery from the stress that he experienced at the time. It does not seem to be suggested that he has any continuing psychological disability.

17. On 3 May 2004 he had two Cortisone injections for his shoulder. Later that month he decided to take leave from his employment with a view to eventual retirement on 2 July 2005. He said in explanation for this course that he had decided that, in his condition, he could not continue work under the then present arrangements. He explained that there were a number of factors in his decision to retire.

18. They included the fact that he was not comfortable at work, that he could not use a mouse for more than five minutes at a time and that most of his work was computer based; that he found the work demeaning - being confined to what he described as "Mickey Mouse" audits; that he had been accustomed to working three to four hours in solid blocks and found it difficult to concentrate, working for only 30 to 40 minute blocks with constant breaks; and that he was exhausted because apart from maintaining working hours of seven hours and 21 minutes per day, he was obliged to spend 15 to 20 hours outside of work in activities relating to gymnasium, physiotherapy, swimming and travel all of which were associated with his continued rehabilitation.

19. Whilst the plaintiff was subject to a searching cross-examination, I found him to be an impressive and reliable witness and generally accepted his evidence. I am satisfied that the accident made a significant impact upon his lifestyle.

20. I note that Mr Ryan, who appeared for the defendant, urged me to significantly discount the effect of this accident by reason of earlier problems from which the plaintiff had suffered. He had had a motor vehicle accident in 1994 in which he sustained injuries and had suffered from tendonitis in the left wrist from about 1999 onwards. Mr Ryan submitted that I should take into account not only the fact that these conditions put him in a more fragile state than he wanted to admit, but also the fact that he had not candidly disclosed them to the medical practitioners who had assessed him. I am unable to accede to his submission.

21. I accept the plaintiff's evidence that he had sustained a substantial recovery from the injuries sustained in the 1994 accident though the tendonitis to his left wrist persisted. It seems relatively clear, if only from the level of fitness that would have been required to carry out the cycling activities to which I have already referred, that he was generally in reasonably good health at the time the accident occurred. The tendonitis had a particular significance in relation to his capacity for work because he had previously used the mouse in his left hand as a matter of preference, though he is generally right handed. However, following the onset of tendonitis he had been able to use the mouse in his right hand and generally sustain the more demanding work required of him prior to the accident in November 2002. That work, however, required what he described as "huge volumes of typing and screen work" and he has not felt able to resume that work since the accident occurred. It was, presumably, substantially for that reason that he was allocated less demanding work during the course of his gradual resumption of duties.

22. I am satisfied that the disabilities he described were caused by injuries sustained in the accident.

23. Out of pocket expenses have been agreed in a global figure of $68,073.87, that being the amount paid by Comcare both in respect of medical expenses and past wage loss. The plaintiff claims a further sum for past wage loss based upon two contentions.

24. First, he claims that he would have received a higher assessment and hence been eligible for what might loosely be described as performance pay had it not been for the accident. In support of that contention, two pre-accident assessments have been tendered showing he was rated at a level of three during the year prior to the accident. A third pre-accident assessment has been tendered showing that following his return to work he was rated as a two but that rating seems to have been substantially attributable to the fact that whilst he carried out his duties to a high standard, the duties themselves were not overly demanding. An amount of $1,328.00 is claimed in relation to this contention.

25. Second, he claims to have lost prospects of promotion. It should be noted, however, that he was 60 years of age at the date of the accident and it appears that he had been on the same level with the ANAO for a period of about 10 years. I accept his evidence that he did a number of things to improve his promotional prospects. But his evidence as to his aspirations for promotion and what he did to further them has regrettably not been augmented by any evidence from the management of the ANAO as to his actual prospects of gaining such a promotion. In all the circumstances I am not satisfied that those prospects were sufficiently great to sound in damages.

26. In relation to the claim for performance pay, however, I accept that he had strong prospects of gaining the sum of $1,328.00 to which I have referred. It is true, of course, that as the High Court observed in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, when an event has either not yet occurred or would have occurred but for the intervention of past events then unless the occurrence was either certain or so unlikely as to be dismissed as not worthy of consideration. The appropriate course is to compensate the plaintiff for the loss of the chance. Having regard to the probability that he would have received the performance pay, I allow a further sum of $1,000 in respect of past economic loss.

27. The issue of future loss is much more difficult to deal with in this case. Firstly and most obviously, the plaintiff has indicated that, in any event, he will not be retiring before his 63rd birthday on 2 July 2005. Secondly, he agreed in his evidence that he had not, prior to the accident, made any firm decision as to exactly when he would retire. Thirdly, as he quite candidly admitted, his decision to retire was based upon a number of factors, including the fact that he found the work demeaning. That fact alone does not establish that any loss sustained by ceasing work could properly be regarded as causally connected with the accident since, apart from any other consideration that may be relevant, a plaintiff has a duty to mitigate his or her own damage even if that involves taking work that may be less attractive. Though, in that event the fact that the work to which a person may feel condemned is more boring may be relevant to the issue of general damages.

28. The relevant issue is whether a retirement that will not occur until, at the earliest, 2 July 2005 can be said to have been caused by the accident using the common sense test of causation recognised by the High Court of Australia in March v E & M H Stramare Pty Ltd, [1991] HCA 12; (1991) 171 CLR 506. To be a compensable loss, of course, it would be necessary for the accident to be shown to have been an effective cause of that early retirement. However, as I have indicated that retirement has not yet occurred and will not occur until at least mid next year. In these circumstances, it seems to me that one must, again, approach the matter by reference to the approach adopted by the High Court in Malec.

29. In assessing the value of the "loss of a chance" I am obliged to take into account a range of factors, including the plaintiff's already significant recovery, efforts in consolidating his rehabilitation and securing a further improvement in his condition, the fact that there are another eight and a half months during which further improvements could be sustained and the fact that in any event, his condition has not been the single reason for his intention to retire. The strongest factor militating in favour of some award under this head is to be found in his evidence that, whilst he was still working prior to commencing leave in May this year, he found himself exhausted and he felt unable to maintain 15 to 20 hours of extra-curricula activities in addition to working.

30. As Mr Ryan correctly pointed out, he had done some gym work even prior to the accident and not all of that period of 15 to 20 hours extra-curricular activity could fairly be attributed to disabilities flowing from the accident. On the other hand, it seems inescapable that the pain which he experienced from time to time whilst working and whilst exercising and the additional activities which he did have to undertake were a factor in the decision that he made some six months ago.

31. However, the plaintiff has not yet submitted his resignation and it would be open to him to change his mind and return to work at the end of the period of leave. Mr Pilkinton, who appeared on his behalf, submitted that I should, in effect, regard his decision as having been locked in because he has indicated to his employer that he intends retiring on 2 July 2005 and he is a man of integrity. Nonetheless, he does retain the right to return to work. Furthermore, it seems to me that incapacity leading to retirement cannot be established merely by pointing to a decision made some 14 months prior to the anticipated date of retirement and suggesting that the plaintiff was locked in to that by reason of having given an indication of his decision to his employer. Whilst I accept that as a man of integrity he feels bound to honour the indication, nothing the defendant did in this case required him to give that indication and if circumstances change, I see no reason why he could not indicate that to his employer and return to work. The real question, therefore, is, it seems to me, is he entitled to anything for the loss of the chance that he will be required to retire on 2 July 2005 irrespective of what undertakings or indications he may have given to his employer in the past.

32. The potential loss that may be occasioned as a result of premature retirement, if you can call retirement at the age of 63 premature, is significant. Calculations have been put forward suggesting a loss of wages of an amount in excess of $108,000 and it has been suggested that there would be a superannuation benefit loss in excess of $20,000.

33. Having regard to all of the factors that were canvassed in the addresses of counsel, it seems to me that the likelihood of the plaintiff's disabilities being an effective cause of early retirement in July next year are not so small as to be effectively dismissed as de minimus but, on the other hand, are not as great as 50/50. Having considered the matter carefully, it seems to me to be appropriate to award a buffer of $25,000 for further economic loss of all kinds, taking into account the potential loss of wages, the potential loss of superannuation benefit and other contingencies such as the prospect of higher ratings in the future resulting in performance pay.

34. I allow the sum of $5,000 on the principle in Griffiths v Kerkemeyer for assistance which the plaintiff required in the past. I accept Mr Ryan's submission that the plaintiff has not established the need for future assistance and I allow nothing for the future.

35. So far as general damages are concerned, I accept Mr Pilkinton's submission that this has been an accident which has had a significant impact upon the plaintiff's life. He has experienced pain and disability. It has significantly interrupted his career. It had, for a time, a significant impact on his sex life. It has, and continues to have, a substantial impact upon his ability to engage in cycling activities which were an important part of his life. And it continues to affect upon his general enjoyment of the amenities of life. He has had to undergo an operation. He has had to experience physiotherapy and engage in gymnasium work and other exercise activities. He did, it is true, experience a substantial improvement in the months following the operation but, at least during the early period after the accident, life must have been miserable for him. Since that time he has struggled with some continuing disability. He continues to have some discomfort and disability and, despite conflicting prognoses, it seems likely that his present level of disability is likely to be permanent. I accept that there is some prospect of further improvement, if only because the plaintiff is so committed to pursuing fitness, but he is unlikely to ever regain the level of cycling activities that he has previously enjoyed. It is plain that the pain, discomfort and resultant limitations which I have mentioned have had a significant influence on his decision to retire, even if that may not sound in damages in quite the way he would have liked. He continues, furthermore, to devote several hours per week to physical activities of various kinds and whilst I accept that he would have done much of that anyway, I think it is relatively clear that some, at least, is related to his continuing disability and pain and to an attempt to recover the level of fitness that he had enjoyed prior to the accident.

36. In the circumstances I award $50,000 for general damages. I apportion $30,000 of that sum as referable to pain, discomfort and general disruption of the amenities of life to date. I allow $1,200 interest on that component.

37. I allow a further sum of $3,000 for future medical, physiotherapy expenses and other expenses associated with his condition. On my calculations that comes to an amount of $153,273.87.

38. MR PILKINTON: There's just one matter for the sake of completeness your Honour. You didn't make any finding about Fox v Wood. It's implicit in - - -

39. . . .

40. I should say something about that. So far as the Fox v Wood component is concerned it appears to me from the documents that have been tendered that the figure of $16,709 claimed under that head was included in the figure of $68,073.87 paid by Comcare. I accept that there is some uncertainty about that from the Bar table and I grant the parties liberty to apply under the slip rule should it turn out that I am wrong in relation to that assumption.

41. . . .

42. I order that there be judgment for the plaintiff in the sum of $153,273.87.

43. . . .

44. I order the defendant to pay the plaintiff's costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 15 December 2004

Counsel for the plaintiff: Mr S Pilkinton

Solicitor for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr P Ryan

Solicitor for the defendant: Sparke Helmore

Date of hearing: 22, 23 November 2004

Date of judgment: 23 November 2004