Hawkes v Chronopolous [2005] ACTSC 116 (25 November 2005)

Last Updated: 30 November 2005

DARREN HAWKES v DIMITRIS CHRONOPOLOUS

[2005] ACTSC 116 (25 November 2005)

DAMAGES - Assessment - motor vehicle accident - no issue of principle.

No SC 274 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 25 November 2005

IN THE SUPREME COURT OF THE )

) No SC 274 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DARREN HAWKES

Plaintiff

AND: DIMITRIOS CHRONOPOULOS

Defendant

ORDER

Judge: Connolly J

Date: 25 November 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $56,018.50 with costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred on 26 February 2003 when the plaintiff's motor vehicle was struck from behind by a vehicle driven by the defendant on Stonehaven Crescent, Deakin. The plaintiff had slowed to allow a vehicle in front to move into a driveway at a residence, and, I am satisfied, was struck with considerable force by the defendant. Liability was admitted, and the matter proceeded by way of an assessment of damages only. 

2. The plaintiff's case is that in the injury he sustained significant whiplash injury which has given rise to ongoing neck and back pain. It was conceded that the considerable force of the impact resulted in his head striking the back window of his utility vehicle, breaking the glass and then impacting on a metal structure in the back of the vehicle. 

3. I accept that he was taken from the accident scene to the Canberra Hospital, where lacerations to his scalp were sutured and pieces of glass were removed. An x-ray of his cervical spine was undertaken, but reported as normal. 

4. The plaintiff's case is that since the accident he has had ongoing headaches, neck pain and an inability to concentrate. He had qualified as a journeyman plumber some years before the accident, and was in the course of undertaking further TAFE studies to enable him to undertake contracting work on his own account. He had set up a business as a plumber, and was working for himself at the time of the accident. It is his case that his accident related neck and back pain and headaches have prevented him from continuing to operate a plumbing business, and he makes a significant economic loss claim on this basis.

5. The defendant's case is that the accident related injuries were of a minor nature, and moreover the plaintiff's pre-accident health and work record, and the economic record of his plumbing venture, suggest that he would not have been able to sustain a viable contract plumbing business regardless of the accident. Since he has abandoned the plumbing venture, he has obtained regular employment driving backhoes and excavation equipment, and his taxable earnings from these ventures is, says the defendant, far higher than anything he is recorded as earning in the years prior to the accident. 

6. The medico-legal reports provided in the plaintiff's case support the proposition that the plaintiff suffers ongoing neck pain and headaches that are attributable to the injury. However, it is apparent that the plaintiff did not provide a full history to these doctors.

7. After his attendance at the Canberra Hospital, he did not see a doctor until he attended a general practitioner, Dr MacIver, on 16 September 2003. It is apparent from the documentation in this case that this occurred after he had been in contact with his solicitors. Dr MacIver took a history of constant daily headaches, neck pain, feelings of depression and frustration and inability to concentrate, and attributed all of these to the accident, and made a diagnosis of chronic pain syndrome and possible associated depression. He was referred by Dr MacIver to Dr Eaton, an occupational physician. In a report to his solicitors, Dr Eaton takes a history of severe neck pain and very severe headaches immediately after the accident, and severe pain thereafter. He made the observation in his report of 23 April 2004 that -

On examination Mr Hawkes appeared to be a straightforward, honest person who did not appear to be embellishing or exaggerating his symptoms.

He made a diagnosis of persistent neck pain and post-traumatic headaches. He noted that the plaintiff had not undertaken any formal treatment at this point. Although Dr Eaton recommended some rehabilitation therapy, the plaintiff had not, to the date of the hearing, undertaken any such treatment. In a report of 23 October 2003 Dr Eaton expressed the view that the plaintiff's present condition, which he described as ongoing headaches and neck pain, were directly and consequentially a result of the injuries sustained in the motor vehicle accident.

8. The clinical notes from the Canberra Hospital do not disclose any complaint of neck pain on his presentation following the accident. They do record the glass injuries to the back of his head, and the need for sutures. They record "No cervical tenderness". The ambulance notes also contain no reference to neck pain, only to the lacerations to the back of the skull. These contemporaneous notes are inconsistent with the history given to Dr Eaton of immediate severe neck pain and severe headaches immediately after the accident.

9. Moreover, medical records from his former general practitioner from Jindabyne reveal a significant history of longstanding headaches and other health issues, including depression and other psychiatric complaints, none of which were disclosed to the doctors who have reported in his case.

10. There is a letter to his general practitioner in September 1996 from Dr Andrews, consultant neurologist, that indicates that the plaintiff had at that time a psychiatric condition relating to aggression, and had a history of "migraine several times a week", being "a throbbing bitemporal headache". He placed him on medication for "epilepsy, aggression and migraine".

11. Where a person claims that ongoing headaches are a consequence of a motor vehicle accident, there is an obvious difficulty when the contemporary notes show no complaint of headache. The first recorded complaint is many months following the accident, and the plaintiff has not disclosed to doctors a significant history of migraine, requiring specialist intervention some six years prior to the accident. 

12. Hospital notes from the Canberra hospital also record numerous attendances over the years where references are made to migraine headaches. There is a record of 9 April 1998 that refers to a history of "chronic depression, personality disorder, panic attacks and dissociation of thought, PTSD/epilepsy, migrainous headaches". A reference in notes produced by Dr Crocker of October 1996 refers to "severe headaches 2-3/week". There is a note of 29 August 1999 that the plaintiff "reports history of depression, violent behaviour, relationship problems, MVA- back and leg injury". 

13. Dr Tym, consultant psychiatrist, diagnosed him in 1996 as having Post-traumatic Stress Disorder.

14. Given this long history of migraine headaches prior to the accident the subject of specialist intervention, and the lack of recorded complaints of headaches until many months after the accident, despite medical records indicating that over the years the plaintiff has never been reticent about going to a medical practitioner with complaints of aches or pains, I am not satisfied on the balance of probabilities, that the headaches that he now complains of were caused by the motor vehicle accident. 

15. It is the plaintiff's case that the physical consequences of the motor vehicle accident, being neck pain and headaches, contributed to psychological difficulties which have prevented him from continuing with his small business venture. Dr Eaton, in his report of 16 September 2004, expressed the view that -

he does appear to have emotional and psychological problems and reports cognitive dysfunction which may be related to his injuries and resulting chronic pain and discomfort.

16. Dr Knox, consultant psychiatrist, has expressly agreed with that opinion, although he added that he believed that the pain and disability resulting from the neck injury "have impacted on a pre-existing Attention Deficit Hyperactivity Disorder".

17. Dr Eaton acknowledged in cross-examination that he was not aware of the plaintiff's extensive prior history of psychiatric difficulties. It is clear that he spent considerable time on social security benefits during the 1990s on disability payments due to epilepsy and other conditions. A hospital note of 29 August 1999 says that he has been unable to work as a plumber and landscaper -

due to epilepsy, back problems and behavioural problems. On disability pension. Wants to start own lawn-mowing business but finds it hard to get motivated....

18. Significantly when the plaintiff was examined by a psychiatrist for the defendant in July 2005 he is recorded as having declined generally to answer any questions about previous psychiatric history. He gave a history to Dr Waldon that the main reason why he had to give up his plumbing business was that -

`my head doesn't work properly'. He said he was making mistakes at work and forgetting things.

19. The failure of the plaintiff to fully disclose his history must of course significantly undermine the value of the medical reports that link his present condition, both physically and psychiatrically, with the accident. 

20. I must point out that I do not make a finding that the plaintiff has consciously and deliberately lied in relation to his history, which is a very complex one. Indeed, there are notes on the hospital records where he was attending for unrelated and entirely non-compensable injuries (a severe insect sting) that indicate that he was a very poor historian. Mr Black, for the defendant, made it clear in his submissions that he was not attacking the plaintiff as a liar. However, for whatever reason, his failure to give a full history must, it seems to me, significantly weaken any attempt to link his present condition with the accident.

21. Having said that, I do make the finding that this was an accident of some significance, where the plaintiff sustained a significant head injury. I accept that a consequence of such an injury has been a degree of neck pain, which I accept may have been masked for some time by the pain of the frank injury by way of the cut to the back of his head and the embedded glass which needed to be removed and the wound sutured. I accept that this has resulted in some ongoing soft tissue type neck pain, which has remained untreated, but which should respond to the type of treatment recommended by Dr Eaton. I am not satisfied that the headaches are attributable to the accident, being a clearly established pre-existing condition, but I do accept that there has been some degree of aggravation for a closed period in the past of his pre-existing migraines. 

22. It seems to me that this can only sound in a modest award of general damages, which I would award in the sum of $17,000, inclusive of interest.

23. Past out-of-pocket expenses were agreed in the sum of $1,018.50, which I understand to be inclusive of interest. It seems to me that, consistent with my finding that the injury has caused some minor unresolved soft tissue neck injury that should respond to the type of intensive treatment recommended by Dr Eaton, I should award a modest buffer for future expenses to enable this treatment to occur, and I do so in the sum of $3,000.

24. The plaintiff's claim for economic loss for both the past and the future is premised on the finding that, but for the accident, he would have been able to develop a successful business venture as a contract plumber. I am not satisfied that this claim has been made out. 

25. This is for two reasons. Given my findings on the extent of the accident related injury, and the extent of the pre-existing conditions that had not been disclosed to doctors, I am not satisfied that whatever it is that may be precluding him from working on his own account as a contract plumber is accident related. To the extent that his difficulties flow from cognitive and planning difficulties, lack of organisational ability and related matters, I am satisfied that this relates to his longstanding pre-existing condition. Dr Knox was of the view that his poor concentration and irritability was a significant issue in relation to his future employment, and these are clearly longstanding issues. He acknowledged in cross-examination that he had poor concentration at school. As well as various medical reports over the years going to irritability and lack of concentration, it is the case that for a period in the late 1990 the plaintiff found himself in considerable conflict with the Jindabyne police. Clearly he and his mother, who gave evidence in his case, believe, as he told Dr Knox, that he had been hounded by the police, but it seems to me that this does go to undermine any claim that present irritability is an accident related condition. 

26. He has also disclosed to doctors over the years consumption of cannabis, at one period of three cones a day, and occasional intravenous heroin use. 

27. The plaintiff's pre-accident tax returns show that for a number of years his earnings were very low. In 1999 his taxable income was $6,818. There were no returns for the 2000 tax year, but there is evidence that for a large part of 1999 he was on a disability benefit. His 2001 tax year shows a taxable income of $8,994, of which $5,372 was sourced to Commonwealth benefits. His 2002 tax year shows a taxable income of $5,918, from a variety of employers. For the 2003 tax year, he showed a total income of $818, of which $745 came from one employer. It is the plaintiff's case, and it was his evidence, that his plumbing business, for which no real business records were produced, was commenced about 12 months before the accident, so it must follow that the 2003 tax year covered the first year of operation of the business, in which a taxable income of only $818 was generated, most of which related to one outside job of some $700. For the 2004 tax year, being the year after the accident, he disclosed a taxable income from the plumbing business of $9,959. That is clearly the largest taxable income over the previous four years before the accident, and some ten times greater than the income for the year he says he was operating his plumbing business before the accident. 

28. Even allowing for the fact that the first start up year of a business will be difficult, it is hard to see on the tax records where the accident generated any loss at all, and this is essentially the defendant's case. 

29. He says that he was forced to close the business about 18 months after the accident, and then obtained employment driving a backhoe, for which he was paid $980 a week after tax. He has maintained this type of employment, at around these earnings, ever since. He said that his after tax income for the 2005 year was somewhere between $20,000 and $23,000, and he estimated that he had earned between $9,000 and $12,000 in the period from 1 July 2005 to the hearing date of 19 October. Again, these are considerably greater earnings than he was achieving before the accident.

30. Clearly in the year before the accident, when he was working in his own business with a taxable income of $818 (or something under $16 per week) he must have received additional funds to survive. The plaintiff acknowledged that his mother provided him with financial assistance during this period. But, given his evidence that all earnings were disclosed, and in the absence of any financial records of the business showing outgoings, it seems that the business was extremely marginal and incapable of generating a living income before the accident. His mother also gave evidence that, as she owns and manages a plumbing supply business in Cooma, she was able to assist with supply of products. Even with this benefit, the business was marginal and unable to generate a living wage. In the year after the accident, his taxable income increased tenfold. He agreed in cross-examination that he was working longer hours in the business in the year after the accident. This is hardly compatible with the version of events given to doctors of a growing business cut down by a motor vehicle accident.

31. I am not satisfied on all of the evidence that the accident related injuries, which I find are limited as yet untreated soft tissue neck injuries giving rise to neck pain, were the cause of him abandoning his attempt to operate a plumbing business. He did not complete the necessary TAFE studies to obtain his contractors certificate, but I am not satisfied, given the history undisclosed to doctors, that this was due to the accident.

32. I should note that, I accept that the plaintiff has long had poor concentration and memory, and I do not say that he was lying when he did not disclose these conditions. Moreover, it seems to me that the plaintiff deserves real credit for turning his life around in recent years. There was clearly a period in the late 1990s when, despite qualifications as a tradesman, he was not working, he was becoming involved in drug use, and had difficulties with the police. Unfortunately, on the criminal side of the court, we too often see young men in such a position who descend into a criminal life.

33. The plaintiff clearly has made a commendable effort to turn his life around and, despite being unable to succeed as a contract plumber, he has been working full-time now for some years, and is earning good money as a plant operator. It seems to me that his accident related neck difficulties, which I accept as genuine and accident related, must have some impact on his earning capacity, particularly if he sought to utilise his tradesman qualifications as an employed plumber, which would require him to work in enclosed and confined spaces. I do accept his evidence that it was in these types of jobs that he most noticed pain. While the prognosis for resolution of what I find to be soft tissue injuries is positive if the treatment regime is followed, it seems to me that I should allow a modest buffer for a genuine interference with earning capacity. The fact that the plaintiff has become more motivated to work in recent years, so that his present income is considerably higher than it had been some years before the accident, should not preclude him from recovering proper damages for a genuine loss. I award the sum of $35,000, inclusive of interest, for past and future wage loss.

34. This amounts to a total award of damages of $56,018.50. I order that there be judgment for the plaintiff in this amount with costs.

 

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 25 November 2005

Counsel for the plaintiff: Mr WL Sharwood

Solicitor for the plaintiff: Howes Kaye Halpin

Counsel for the defendant: Mr AJ Black

Solicitor for the defendant: Abbott Tout

Dates of hearing: 19 and 20 October 2005

Date of judgment: 25 November 2005