McEwan v Roth [2004] ACTSC 27 (14 May 2004)

Last Updated: 19 May 2004

GEORGE MCEWAN v DOUGLAS ROTH

[2004] ACTSC 27 (14 May 2004)

DAMAGES - personal injury - soft tissue injury to previously asymptomatic lumbar spine with existing degenerative changes - soft tissue injury to neck - no issue of principle

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

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

No SC 219 of 2003

Coram: Master Harper

Supreme Court of the ACT

Date: 14 May 2004

IN THE SUPREME COURT OF THE )

) No SC 219 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GEORGE McEWAN

Plaintiff

AND DOUGLAS ROTH

Defendant

ORDER

Coram: Master Harper

Date: 14 May 2004

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff against the defendant in the sum of $163,800.00.

1. The plaintiff was born on 23 October 1944, and is now 59. On 30 January 2001, he was driving along Erindale Drive, Wanniassa, on his way home from work. He reduced speed as he approached a roundabout at Ashley Drive, and his car was struck from behind by a car driven by the defendant. Although liability is not in issue, it is part of the defendant's case that the impact was a very minor one. The cost of repairs to the plaintiff's vehicle, a 1988 Ford Fairlane, was less than $1,000.00, although the plaintiff's evidence was that the damage was not fully repaired. The defendant's car was a much smaller one, a Mazda 121, but there is no evidence of the cost of repairs to his car, to the extent that that might be relevant. The police report contains the description `front end damage, extensive bonnet and panel and lights'.

2. The defendant was not called to give evidence. He completed a witness statement for the Rehabilitation and Workers' Compensation Unit at the Australian National University, the plaintiff's employer. He said that he had collided with the rear end of the plaintiff's vehicle `at about 20 km/h'. He described the damage as minor to both vehicles. He said that he was not injured, and that the plaintiff did not appear injured.

3. The plaintiff's evidence was that his vehicle was still moving when struck, and that the impact was of sufficient force to push his vehicle off the roadway onto an embankment. He was not immediately aware of any injuries, although he had some pain across the chest which he associated with his seatbelt. He exchanged contact details with the defendant, who apologised to him. He then said that, while at the scene, his `vision went'. He described this as a sensation of tunnel vision, and he sat in his car for about 10 minutes before his vision returned to normal and he was able to drive home.

4. There is no explanation for the fact that the defendant was not called to give oral evidence. I prefer the plaintiff's evidence to the brief written statement of the defendant. I am satisfied that the impact was one of some substance, as described by the plaintiff. The defendant must have been travelling considerably faster than the plaintiff at the time of impact, and perhaps the defendant's reference to 20 km/h was intended to convey the differential in speed between the two vehicles at impact.

5. The impact threw the plaintiff backwards into his seat and then forwards into the seatbelt. He went home and rested, and felt well enough to go to work the following day as usual. During the course of that day, he was standing on an extension ladder when he suddenly became aware that he had lost feeling in his left leg, a sensation he described as a kind of deadness. He was no longer able to use the left leg for support. He hung onto the ladder, placing his weight on the right leg, and after about five minutes the feeling returned to his left leg. The plaintiff got back down the ladder and broke into a cold sweat. He had never had anything similar happen to him before. He went home and made an appointment to see his general practitioner, Dr Meyer, for 2 February 2001, two days later.

6. According to Dr Meyer's notes, the plaintiff described some initial dizziness and pain in the neck and lower back. His left leg felt heavy and he complained of fatigue. He went back to see Dr Meyer a week later, on 9 February, complaining of neck and back pain and paraesthesia in the left leg. Dr Meyer referred him for a CT scan of the lumbar spine. Dr I Stewart, radiologist, reported mild degenerative changes in the facet joints at L1-2, moderate degenerative changes in the facet joints at L4-5, particularly on the right, and endplate degenerative changes at L5-S1. No disc herniation or nerve root impingement was detected

7. Dr Meyer referred the plaintiff for physiotherapy, which he undertook over a period of some eight months. Dr Meyer recommended that the physiotherapy treatment be continued fortnightly until December 2001, but the recommendation was not accepted because of difficulties with Comcare about payment. The plaintiff's employer, the Australian National University, is a Commonwealth instrumentality, which entitled the plaintiff to Comcare benefits, including the assistance of a case manager, Ms Kennedy, from the Rehabilitation and Workers' Compensation Unit of the University.

8. The plaintiff had only a couple of days off work on compensation. He had accumulated a considerable number of hours in flextime credits, and he explained that he took time off on full pay as flextime when his symptoms prevented him from working.

9. He had been employed by the University for thirteen years, and by the time of the motor accident, he was the sole qualified electrician on its staff. He had an apprentice. The work involved, from time to time, heavy lifting and pulling of gearboxes, air conditioning units and the like; climbing ladders, and carrying equipment and other items up ladders; and working in awkward and confined spaces. He was able to share the work with his apprentice in such a way that he avoided the heavier and more awkward work.

10. When the assistant finished his apprenticeship, he was not replaced. The plaintiff described a management culture at the University of seeking to minimise overheads by reducing expense, and in particular by reducing staff. After the apprentice had gone, the plaintiff was expected to attend to all electrical work himself. As tasks arose which required heavy lifting and pulling, and extension ladder work, the plaintiff tried to enlist the assistance of other employees of the University. I had the impression that this was not always available, and was not necessarily provided with a good grace. The plaintiff's inability to carry out all of the work expected of him was a factor which ultimately led to his resignation. The decision of the University not to provide him with the assistance he required was a contributing factor.

11. The initial pain and restriction of movement in the plaintiff's neck recovered completely within six to eight weeks of the accident, although he has been left with a clicking sensation on rotation. During the months after the accident, the plaintiff developed what he described as footdrop on the left side. As he was walking, the front of the foot would tend to drop and tuck underneath him. He developed a technique of flicking his left foot to avoid stumbling. The footdrop caused him to stumble a few times, and twice to fall from a ladder, fortunately from one of the lower rungs. By the middle of 2003, the plaintiff had adapted to the condition, the flicking of his foot when walking having become a habit. He still complains of some pain in the left foot after walking three or four kilometres which is relieved by taking his shoes off.

12. However, his lumbar spine has not recovered, and his evidence is that his pain in his low back is constant and is always with him. It is made worse by particular physical activities from time to time. There were numerous incidents in the course of the plaintiff's employment after the accident which exacerbated his back pain. On 30 August 2002 the plaintiff saw Dr Meyer complaining of an aggravation of his lumbar back pain following an incident of pulling a heavy object at work four days earlier. The plaintiff sought compensation for the four days off work and associated treatment expenses from Comcare, but an administrative difficulty stood in the way. Comcare declined to treat this period of incapacity and treatment as related to the motor vehicle accident, and required the plaintiff, if he wished to purse the claim, to lodge a fresh claim form in respect of the incident on 26 August . The plaintiff became frustrated by this and other instances of what he regarded as inflexibility on the part of Comcare. I am satisfied that the injuries sustained by the plaintiff in the motor accident were causally connected with the various aggravations to the plaintiff's low back injury which he suffered subsequent to the accident in the course of his work, including the incident on 26 August 2002.

13. The plaintiff's solicitors qualified Dr GG Griffith, consultant surgeon, as an expert witness. Dr Griffith examined the plaintiff twice, in October 2001 and May 2003. On the first occasion, Dr Griffith became concerned that some of the plaintiff's neurological symptoms might result from a tear in the carotid artery or some similar condition. It was important to investigate and exclude this as such an injury could lead to a stroke. For this reason the plaintiff was referred to Dr Roger Tuck, neurologist, who referred him to the Canberra Imaging Group for tests, all of which were normal. There was no evidence of dissection or any other form of cerebrovascular disease. Neither Dr Griffith nor Dr Tuck was able to identify a specific cause for the neurological symptoms which included the tunnel vision experienced immediately after the accident, the loss of feeling in the left leg on the following day, and later weakness in the left arm. All of these seem to have resolved satisfactorily. The timing is highly suggestive of a causal relationship between the trauma of the motor vehicle collision and these incidents, and in the absence of any other explanation, I accept that it is more probable than not that there was a causal relationship between the collision and these experiences or symptoms.

14. The plaintiff is a married man but has no children. He migrated to Australia from Scotland in 1968. His evidence is that, prior to the accident, his intention was to retire at age 65. He and his wife had spent time in the Bundaberg area in Queensland on previous holidays and had owned a block of land there. It was their intention to move to Bundaberg on retirement. The plaintiff's case is that his injuries brought this forward. He formally resigned his employment with the University on 16 March 2004 and has moved to Bundaberg, where he and his wife are living. A complicating factor is the unrelated illness of the plaintiff's wife. She has had at least two operations. Although she did not give evidence, it seems that she was keen to get away from Canberra to Bundaberg's warmer climate. The plaintiff and his wife had placed their Canberra house on the market during 2002. The plaintiff said that at that stage they were simply testing the market. They subsequently accepted an offer, but the sale did not go ahead and fortunately for them, the market was still rising at that time.

15. In May 2003, the plaintiff took long service leave, and he and his wife went to Bundaberg. They sold their house in Canberra and bought a house at Bundaberg. They moved their furniture to the new house.

16. The plaintiff came back to Canberra, where he stayed with friends, in November 2003, and returned to work for about two months. His wife did not want to live in Canberra again, and declined to accompany him. His aim at that time was to negotiate a redundancy package with the University. He was unsuccessful in obtaining an offer of a package and by mid-March he had become resigned to this. He tendered his resignation.

17. The defendant's submission is that the state of health of the plaintiff's wife would have led to retirement and a move to Queensland at about the same time, regardless of whether or not the plaintiff had been injured in the motor accident. There is a degree of artificiality in attempting to predict what might have happened if one were to remove a specific event, the motor accident, from the sequence of events involving the plaintiff and his wife since early 2001 and continuing into the future. What is beyond argument is that the effect of the motor accident on the plaintiff during that period has been significant, and must have impacted in numerous ways on every aspect of the lives of the plaintiff and his wife, and of their relationship. It is now accepted that where a plaintiff has retired early following injuries which are a causative influence on his decision to do so, the plaintiff does not need to satisfy the Court that he had lost his earning capacity at the date of retirement: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. I am left in no doubt that if the plaintiff had not been injured, he would have remained in his employment for considerably longer, and that the move to Queensland would have been postponed accordingly, if not necessarily until the plaintiff reached the age of 65.

18. There is a causation issue which needs to be analysed. The CT scan taken shortly after the accident revealed underlying spondylosis in the plaintiff's lumbar spine, probably of many years standing but, until the accident, not productive of pain or any other symptoms. Dr D Billet, orthopaedic surgeon qualified by the defendant, saw the plaintiff on 27 March 2002 and expressed the opinion that the plaintiff's low back symptoms emanated from underlying pre-existing degenerative changes in the lumbar spine, aggravated by his injury, but that by then he had recovered from the effects of the exaggeration. Dr Billet accepted that the plaintiff was continuing to suffer from low back pain and related symptoms. He said in this regard that the prognosis was guarded and that he could not determine when the plaintiff would return to his pre-accident medical status.

19. Dr Billet was more recently provided with CT and MRI reports upon which he was asked to comment. He summarised his opinion as follows:

The accident of 31 January 2001 resulted in a soft tissue injury to the lower lumbar region, with aggravation of the underlying pre-existing constitutional age-related degenerative changes in the discs and facet joints of the lumbar spine and there was a suggestion of a discal problem. The first two would have resolved completely and his pain would be emanating from the discal problem and from the underlying pre-existing constitutional age-related degenerative changes.

20. Dr Billet was asked to give an opinion as to whether, on the balance of probabilities, the plaintiff's condition would have become symptomatic in any event and, if so, when. His response was:

I could not determine if and when Mr McEwan will [sic] become symptomatic.

21. I infer from this that Dr Billet's opinion is that the degenerative condition in the plaintiff's lumbar spine would probably not have become productive of symptoms by the date of his second report (30 April 2004); that the condition probably will become symptomatic at some time in the future; but that Dr Billet cannot say when this is likely to happen.

22. By the time of the motor accident, the plaintiff had reached the age of 56, and had been engaged for many years in heavy work of the kind I have previously described. He must have had the degenerative condition in his lumbar spine, probably also for many years. He had never experienced any symptoms referable to his lumbar spine. No medical practitioner has expressed the view that, absent the motor vehicle accident, the condition was likely to have produced symptoms within three or four years (that is, by now) or indeed within nine years (by age 65). Clearly this must have been a possibility, but I am unable on the evidence to assess it as other than quite unlikely. Rather than coming to a conclusion as to whether or not I am satisfied on the balance of probabilities that the plaintiff would have reached retiring age prior to his condition becoming symptomatic, I am required to factor the probability into my assessment of damages on the basis of its likelihood: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. Clearly in the present case, this is not an exercise which can be approached with any degree of mathematical precision.

23. The plaintiff was patently a truthful witness, who tended if anything to understate the effects of the accident on him. I am satisfied that prior to the motor accident, he was able to cope with all of the requirements of his work as an electrician with the Australian National University. Whilst he had an apprentice, he had no need to delegate any specific tasks to the apprentice because he was unable to cope with them himself.

24. This changed following the accident. Many of the heavier tasks aggravated the plaintiff's low back pain, and he needed help with them. Additionally, he lost confidence in relation to working on extension ladders at more than moderate height. His work regularly required him to carry electrical equipment up a ladder, and to work at heights using electrical equipment. It may be that he could have continued to cope if provided with a replacement apprentice, or an offsider, but unfortunately for him, his need for assistance in these areas coincided with a period in the history of the University when staff numbers were being reduced as a matter of policy. I accept that the plaintiff did his best to cope for as long as he could, but that ultimately he came to accept that he was unable to do the work required of him without assistance. He attempted for some time to negotiate a termination of his employment on more favourable terms but was unsuccessful and eventually had no practical alternative but to resign. His resignation took effect in mid-March 2004, some six months prior to his turning 60. His evidence is that his pre-accident intention was to work until age 65. Any number of factors might have occurred in the future which could have influenced him to retire earlier: one factor which is now known, though it was not known at the time of the motor accident, is that the plaintiff's wife is now in ill health. This might have influenced him to retire earlier than 65 in the absence of any injury.

25. The only loss claimed by the plaintiff in respect of earnings prior to his retirement is $249.32, an amount paid by Comcare which he is required to repay out of his damages. I accept that he has taken about another four weeks off work, but has utilised his flextime credits so that this time was taken off on full pay. If not for his injuries, the plaintiff would have been able to take this time off for his own purposes, at a time of his choosing, and the fact that he lost this entitlement is a matter which should be reflected in general damages. He was earning $581.00 net per week at the date of his retirement, and has lost earnings at this rate from mid-March to date. I allow $5,500.00 for past economic loss, including interest and including the Comcare amount.

26. As to loss of earning capacity for the future, the present value of a loss of $581.00 per week to age 65, assuming an interest rate of 3%, is a little over $150,000.00. It seems appropriate to me to reduce this by one-third to take account of the vicissitudes of life, and of the contingency, already realised, relating to the health of the plaintiff's wife. The exercise must also take account of the fact that the plaintiff has some residual earning capacity as an experienced and qualified electrician, although one no longer able to engage in heavy work or work at heights. He would like to find some kind of work for about two days a week, even if it is on a voluntary basis. Although Bundaberg is a city of some 40,000, it does not seem to me particularly likely that a man aged 60 with a defective lumbar spine and constant low back pain has much likelihood of finding paid employment, and certainly the defendant adduced no evidence as to its availability. All in all, it seems to me that an appropriate amount for loss of earning capacity for the future is $100,000.00.

27. As to treatment expenses, Comcare has paid a total of $3,068.90, which must be refunded by the plaintiff out of his damages; and the Health Insurance Commission has paid Medicare benefits of $428.05, which is also refundable. Additional to these amounts, the plaintiff has himself paid `gap' payments to some of the treating doctors, and chemist bills for his medication. The evidence does not enable me to arrive at an exact figure. I allow $3,800.00 in all for past treatment expenses, which should be regarded as including a small component for interest on the payments made by the plaintiff personally.

28. An allowance for future treatment expenses is necessary to cover medication, and occasional visits to the general practitioner for monitoring and prescriptions. By reference to the Australian Life Tables, the plaintiff can be taken to have a life expectancy of about 21.5 years. The 3% multiplier for that period is 830.3. Allowing for vicissitudes including the prospect that the plaintiff's lumbar spine would have become productive of symptoms requiring treatment at some future time, it seems to me that an appropriate allowance for future treatment expenses is $3,000.00.

29. A claim was made in the statement of particulars for domestic assistance, but this was not made out on the evidence and is not pursued.

30. Whilst the injuries and disabilities call for an award of general damages of some substance, that award must also reflect the prospect that the plaintiff's low back condition might have become symptomatic in the future. It seems to me that a fair sum to compensate the plaintiff for pain and suffering and interference with the amenities of life is $50,000.00 which I apportion as to $20,000.00 for the past and $30,000.00 for the future. The past component attracts interest which I assess at $1,500.00.

31. The individual components of the award are as follows:

General damages $50,000.00

Interest $1,500.00

Past treatment expenses $3,800.00

Future treatment expenses $3,000.00

Loss of earning capacity - past $5,500.00

Future $100,000.00

$163,800.00

32. The total appears to me reasonably proportionate to the losses suffered by the plaintiff as a result of the defendant's negligence. There will be judgment for the plaintiff in the sum of $163,800.00. I shall hear the parties as to whether there is any reason why costs should not follow the event.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 14 May 2004

Counsel for the plaintiff Mr FMG Parker

Solicitor for the plaintiff Baker Deane & Nutt

Counsel for the defendant Mr DM Wilson

Solicitor for the defendant Phillips Fox

Date of hearing 4 - 5 May 2004

Date of decision 14 May 2004