Pappas v Noble [2007] ACTSC 26 (23 April 2007)

Last Updated: 7 May 2008

YANI PAPPAS v VICTOR NOBLE

[2007] ACTSC 26 (23 April 2007)

DAMAGES - personal injury - motor vehicle collision - injuries to neck - pre-existing asymptomatic degeneration in the thoracic and lumbar spine - assessment of damages for loss of earning capacity

EVIDENCE - admissibility - assessment of damages for personal injury - Civil Law (Wrongs) Act 2002 - observations on single expert provisions

No. SC 148 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 23 April 2007

IN THE SUPREME COURT OF THE )

) No. SC 148 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: YANI PAPPAS

Plaintiff

AND: VICTOR NOBLE

Defendant

ORDER

Judge: Master Harper

Date: 23 April 2007

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $494,000.001. The plaintiff in this action claims damages for personal injury arising out of a motor vehicle collision on 27 February 2004. Liability is not in issue.

The lay evidence

2. The plaintiff was born on 26 March 1972 and is 35 years of age. He was almost 32 at the date of the accident. He and his wife have three young children. They live on an eight-acre (3.2 hectare) block at Royalla, a semi-rural residential area about twenty kilometres south of Canberra.

3. The plaintiff went to high school in Canberra, leaving after year ten. He did well at school at physical activities but poorly academically. His numerical skills were quite good, but his reading, writing and spelling were poor. He undertook an apprenticeship as a ceramic tiler, which he completed successfully. The apprenticeship was entirely practical and did not include any technical or college training. He became a qualified tradesman at 19, and worked with various builders as a self-employed subcontractor.

4. The plaintiff enjoyed and was good at sport. He played grade cricket as an all-rounder with Tuggeranong Valley Cricket Club. He also played golf, tennis, touch football and indoor cricket.

5. He and his wife bought their block of land at Royalla in about 2000. They designed a house and the plaintiff obtained an owner-builder's licence. His intention was to build the house himself, with unpaid help from friends who were tradesmen in other building trades. The arrangement was that he would help in return by undertaking the tiling when they built their own houses.

6. By about 2002, the frame of the house was in place, and water, electricity and sewerage were connected. The plaintiff put a caravan on the block and moved in, partly to save rent, but also to guard against trespassing and theft.

7. The plaintiff's evidence was that during the years leading up to the accident he had as much tiling work as he could cope with. The pressure of work varied; where a job needed to be completed quickly he might work seven days a week. At other times he appreciated a break between jobs which gave him time to work on his own house. At the time of the accident he had a significant amount of work available, including the tiling for 24 motel units at Goulburn. He was due to start work the week following the accident with the construction of a cricket pavilion for his club at Tuggeranong.

8. On Friday 27 February 2004, the plaintiff was driving his Mitsubishi Express van east on Johnson Drive, Richardson, on his way home from work. The defendant was driving in the opposite direction, and made a right turn into Cliff Crescent across the plaintiff's path. The vehicles collided and the plaintiff's van rolled over three times, ending up on its wheels.

9. The plaintiff's evidence was that he felt dizzy and disoriented. He recalled some surprise that he was still alive. He had a sore arm but was not immediately conscious of any other injuries. A friend came and took him home. There was some delay waiting for police. By the time he left the accident scene he was beginning to feel stiffness in the centre of the back. This progressed to the lower back and to the lower neck between the shoulders. By the next morning he was in such pain that he could hardly get out of bed and could hardly walk. He had intended to go to work to finish a tiling job, but was unable to do so. He lay in bed for most of the weekend, his wife looking after him.

10. The plaintiff was unable to start the cricket pavilion job on the following Monday. He attended Tuggeranong Medical Practice, a group practice which his family usually attended. He saw a Dr Sivan Rasaratnam, who referred him for x-rays and prescribed pain-killing and anti-inflammatory medication. A day or so later he came under the care of Dr Ian Pryor at the same practice. Dr Pryor referred him for physiotherapy and massage therapy. His back remained painful. The medication and other treatment did not help much. He was unable to return to sport. He found it very difficult to cope with everyday activities, including putting his shoes on and cutting his toenails. He was unable to cope with bedmaking, dishwashing or cooking.

11. The whole of his back felt painful. The pain was concentrated in the centre of his back. He experienced sharp pains in the lower back on bending or twisting. He was unable to straighten up fully. His neck and shoulders were hunched because of the pain.

12. Some time in April 2004, that is a few weeks after the accident, the plaintiff attempted some work for a neighbour at Royalla. This involved preparation for the tiling of a large kitchen, a laundry and four bathrooms, and also a substantial area of floor tiling in the living areas of the house. Preparation involved sweeping, cleaning and vacuuming. The plaintiff found that he was able to last only a couple of hours. At about this time he became tearful and depressed. Dr Pryor prescribed anti-depressant medication.

13. The plaintiff persevered with the job at his neighbour's house. He would work for two or three hours, but would then need to take the next day off to rest before resuming. His wife was very sympathetic, and provided massages. He and his wife bought a massage seat with heat controls which provided some relief. Over time, and with a lot of help from the neighbour, he finished the tiling on the next-door property. He was unable to undertake any paid work for the rest of 2004. During that year he was referred by the defendant's insurer for a rehabilitation program. He also undertook a ten-week hydrotherapy course. Slowly and gradually the movement in his back increased. He was also referred to a psychologist as part of the rehabilitation program. At the end of the course he was advised to try to resume work. He attempted further work on his neighbour's kitchen. He found that he could cope for two or three hours, and on a couple of occasion four hours a day, but no longer.

14. During this period his back pain affected his sleep. One of the builders he regularly worked with offered him a couple of small jobs, which he completed, working for two or three hours at a time, and resting between these periods. He found that the work aggravated his back pain and stiffness.

15. The plaintiff was offered a few other small jobs. After some time he obtained work at a ceramic tile showroom at Fyshwick, preparing display boards of tiles for model kitchens and bathrooms. He was still unable to work for a full day, and was sore and stiff at the end of each work period.

16. The plaintiff was conscious of the need to complete his own house. He tried to get back to some tiling when he could. He obtained tiles from the showroom and worked at completing the tiling of a bathroom. In the course of this, while standing on top of a spa he bent down to pick up a tile. As he straightened he felt a sharp pain, which jolted him. His foot slipped off the spa and he fell and sprained his ankle. (It is not part of the plaintiff's case that this incident was causally related to the negligence of the defendant.)

17. In October 2005 the insurer referred the plaintiff for a vocational assessment in Sydney. He was assessed by a physiotherapist and a vocational psychologist. They concluded that he would never be able to resume work as a ceramic tiler in an unrestricted capacity, though they noted that he remained hopeful that his back would improve and that he would eventually get back to his trade. In the alternative, he had expressed interest in cricket coaching as a career.

18. The vocational team assessed the plaintiff's suitability for full-time sedentary, semi-sedentary and light work. His English literary skills were noted as poor, though his non-verbal reasoning skills were well into the average range, and his numeracy skills strong. He had skills for a range of straightforward administrative, sales and service tasks, although the team acknowledged that he might find some of those environments constraining. He might be better suited to light delivery work. He would be suitable for receiving, dispatch and stocktaking work, subject to undergoing some computer skills training. Suggested employment options for him were: sales assistant; betting agency counter clerk; car salesman; usher or turnstile attendant; and delivery driver. With additional formal training he was seen as suitable for work as a locksmith and as a receiving and dispatch clerk. The psychologist noted his strong interest in practical outdoor activities. The plaintiff expressed some interest in occupations such as carpenter, plumber, farm worker, sports coach and real estate agent. He did not express interest in office work. He saw himself as having an ability to work with people, and having practical skills and abilities.

19. By the time of the hearing, the plaintiff had commenced cricket coaching with younger boys' teams. He had also helped out with coaching girls' teams up to under-sixteen level. By the hearing he had resumed some domestic tasks but was still unable to do all of the things that he could do before the accident. A number of the tasks led to increased discomfort and pain. Some of the tasks around the small property were beyond him, including cleaning out stables and carrying heavy gas bottles and water containers, though he helped to the extent he could with household and outdoor jobs.

20. The plaintiff did not express much interest in any of the occupations which had been suggested to him at the vocational assessment. He was asked how he had seen his working future before the accident. He said that he had intended eventually to employ and train some junior tradesmen, and to subcontract work to them gradually. He had an idea of becoming a tile supplier, and tendering for jobs which he would subcontract to the junior tilers. He had at least some ambition that he might one day have his own tile shop.

21. At the time of the hearing the plaintiff was continuing to take Mobic and Baclofen. He was seeing a physiotherapist once a fortnight and attending Pilates classes once a week. His disabilities prevented him from playing sport and engaging in physical activities with his children, aged ten, eight and four, and had had a negative effect on his intimate relationship with his wife. His wife had started a part-time job at the Hellenic Club at Woden, mostly working in the evenings, about six or eight months before the hearing.

22. In cross-examination, the plaintiff made some concessions though his credit was not seriously dented. It was apparent that observations of the plaintiff's activities had been carried out at the behest of the defendant's insurer. It was put to the plaintiff that he had engaged in a number of activities not volunteered in chief. As each was put to him he readily admitted it. For example, he agreed that he had probably lifted and moved a bale of hay on his property since the accident, and that he might have carried and moved a bag of glue. He conceded that he had assisted an electrician who was carrying out wiring work at the house, including mounting a ladder and cutting holes in the ceiling for down lights, and also cutting holes in the walls for power points. He readily agreed that he had undertaken some painting, using a ladder in the process, a few months before the hearing.

23. He also agreed that he had often prepared breakfast for the children, cut their lunches and driven them to school. He agreed that on some such occasions he may well have returned to the house and undertaken painting work for two or three hours in the morning, and a further two or three hours in the afternoon, possibly on consecutive days. He agreed that he had demonstrated bowling when coaching cricket at nets at an outdoor park, bowling perhaps six to twelve balls, that he had demonstrated batting strokes in the nets, and that he had demonstrated wicket-keeping. He volunteered that on one occasion, as he demonstrated a dive and roll as a wicket-keeper, he heard a crack and felt a sharp pain in his neck. He determined at that moment not to attempt such a thing again. He agreed that he had engaged in some physical activity at a gymnasium as part of a cricket-coaching course the week before the hearing.

24. He agreed that he had engaged in some light football practice with his children, passing the ball but not running or kicking. He also agreed that he had taken his children to a tennis court and demonstrated some shots to them during the year before the hearing.

25. He conceded that he had claimed on an income protection insurance policy after his injury, and had been receiving monthly payments since then, initially of $2,600 dollars and by the hearing $2,700 or perhaps a little more. He agreed that these payments had alleviated the need for him to look for paid work, though he did not agree that without the income protection payments he would have been capable of working any more than he had, or that he would have been likely to have done so.

26. He was asked whether he might consider work as a builder or project manager in the future. He agreed that he would have some interest in this. He would have to complete a four-year course to obtain a builder's licence. He had not looked at the question of project management and I had the impression that he had little comprehension of what this involved. He was not attracted to `working under a boss'. He enjoyed the freedom of self-employment.

27. He expressed some concern about work which would involve lengthy driving. When he had driven with his wife to Sydney for the vocational assessment, they had had to stop three times on the way to allow him to get out and move around.

28. There was no video film put to the plaintiff for comment, nor was there any evidence by an investigator.

29. The plaintiff's wife gave evidence corroborating her husband, and supporting his claim for an increased need for the provision of personal and domestic services. Her evidence was not seriously challenged in cross-examination.

30. Mr William Lubbock, an experienced builder who had used the plaintiff as a subcontractor, gave brief evidence of the plaintiff's competence and reliability as a ceramic tiler. He explained that the pressure of building a house or a commercial building under contract was such that there was no scope for taking on a tradesman capable of only limited hours. He added that he would require a subcontractor to work continuously for at least two to three weeks, at least 40 hours a week, perhaps a little longer, to complete a job in time. Ceramic tiling was a critical part of the building schedule. It was a wet and dirty part of the building process, and until it was finished it was not possible to move on to some of the finer finish work carried out by other tradesmen. It would be impractical and untenable for a ceramic tiling subcontractor to expect to find work for perhaps five hours a day, a couple of days a week. Mr Lubbock was not cross-examined, and his evidence is unchallenged.

31. The plaintiff seemed to me a truthful and honest witness, and I did not detect any evasion or exaggeration. It follows that I accept his evidence.

The medical evidence

32. The solicitors for the plaintiff sent their client to Dr Ron Brooder, consultant neurologist, for the purposes of the case. Dr Brooder saw the plaintiff in June 2004 and August 2005. On each occasion he took a detailed history and conducted a thorough physical examination. He had the benefit of radiological reports which revealed early degenerative changes, predating the accident, in the lower thoracic spine. He felt that the plaintiff was suffering from a significant functional disability precluding him working as a ceramic tiler, and interfering with his previous unrestricted daily activities. He accepted that the plaintiff had developed increased stress and anxiety resulting in depression. His pain syndrome was likely to be the result of a musculo-ligamentous strain injury involving the supporting structures of the mid-thoracic spine, extending to involve the lower thoracic and upper lumbar spine. The injuries and disabilities were directly and totally attributable to the motor accident. Any future treatment would be conservative, for example physiotherapy and hydrotherapy accompanied by muscle-relaxant and anti-inflammatory medication. The prognosis was guarded. It appeared likely that some degree of pain would continue indefinitely, causing associated functional disability. The plaintiff might be permanently unable to return to his previous work, in which case he might need to undertake a period of vocational retraining and rehabilitation for an alternative form of employment.

33. Shortly after the plaintiff's first appointment with Dr Brooder, his general practitioner arranged an MRI on his lumbar spine. This showed degeneration at T11-12, L4-5 and L5-S1. There were disk bulges at L4-5 and L5-S1, with a small annular tear at L4-5. Dr Brooder accepted that these findings would have predated the car accident and that the latter would not have been a cause of any of the abnormalities seen.

34. The defendant's solicitors sent the plaintiff to Dr Chris Oates, occupational physician, who saw the plaintiff in January 2005. Dr Oates arrived at the same diagnosis as Dr Brooder, that is musculo-ligamentous strain of the thoracic and lumbar spines with aggravation of pre-existing degenerative changes at the lower thoracic spine and lower lumbar spine. He recommended continuation of a self-managed exercise program, preferably at a gymnasium with swimming facilities. The plaintiff was in his view unfit for his pre-accident work, but he was fit for part-time work, four to five hours a day, so long as he avoided repetitive or prolonged bending, heavy lifting, pushing and pulling. Dr Oates expected further improvement over the ensuing six months, leading eventually to full recovery, though he added a rider that the prognosis was guarded because of the pre-existing degenerative changes. He thought that maximum improvement should have been reached within two years of the accident, by which time a decision should have become possible as to whether the plaintiff could go back to his work as a ceramic tiler, or should consider training for some other occupation. The presence of anxiety and depression in addition to the physical symptoms acted as a poor prognostic factor for a successful return to work.

35. The solicitors for the parties agreed to appoint Dr John Talbot, orthopaedic surgeon, as a single expert pursuant to chapter six of the Civil Law (Wrongs) Act 2002. Dr Talbot saw the plaintiff in October 2005. He described the degenerative changes in the MRI report as slightly more marked than one would normally expect for a man of 33, even one who has undertaken active physical work for several years. Dr Talbot's diagnosis was an aggravation or unmasking of pre-existing degenerative changes in the thoracolumbar and lower lumbar regions, together with a small annular tear of the L4-5 disk which might have been a result of the motor accident. In Dr Talbot's opinion, the plaintiff's condition should have permitted him to undertake more paid employment than he was undertaking. The injuries and disabilities were in Dr Talbot's opinion 50% due to the accident and 50% due to the pre-existing degenerative changes. The plaintiff was capable of at least four hours of work a day as a tiler, though he might never recover to the extent where his back was completely pain-free. His situation would depend on his ability to cope with chronic pain. The situation was probably permanent, and the plaintiff was probably as pain-free as he would ever be. It was a question of the plaintiff deciding whether to return to tiling, working reduced hours, or to choose another occupation. There was no available treatment he could be offered.

36. Dr Talbot accepted that the degenerative changes had not been causative of any symptoms prior to the accident. He thought that the plaintiff's symptoms were genuine, and that his condition was likely to worsen gradually, though it was unlikely that the accident would result in acceleration of the degenerative process, which would probably have gradually worsened at the same rate whether or not he had been involved in the accident.

37. Dr Talbot gave oral evidence by telephone. He had read, before preparing his own report, copies of the reports of Dr Brooder and Dr Oates, as well as material from the general practitioner and the radiological reports. Since his report, he had been sent a further report of MRI studies of the cervical, thoracic and lumbar spine conducted a little over two weeks before the hearing, and a copy of a letter by Dr Malcolm Thompson, the radiologist who gave the report. The report was to the effect that there were minor fractures observed of T11 and T12, which were healing, and that a minor degenerative change was apparent involving the L4-5 disk. The previous films had incompletely demonstrated the T11 vertebral body, so that previously the fractures had not been apparent. The fractures may have been caused by previous injury: if so, it had happened well before August 2004; and, I infer, well before the motor accident.

38. Dr Talbot was asked by counsel for the plaintiff whether it was appropriate that he continue with physiotherapy. Dr Talbot said that he shared the opinion of evidence-based medicine that, so long after the injury, and having regard to the plaintiff's condition, any kind of physiotherapy, particularly manipulation, would be of no use at all. He agreed that a fitness program would be beneficial, and that review from time to time by a general practitioner was advisable. Intermittent specialist review would be reasonable but in the category of a counsel of perfection.

39. Counsel for the defendant put to Dr Talbot that there was a real likelihood that if the plaintiff had continued with his work as a ceramic tiler, assuming the accident had not happened, he would not have continued to work until the age of 65. Dr Talbot accepted that that was a reasonable proposition. Counsel then put to him that the probabilities favoured the conclusion that the plaintiff would have had perhaps only ten or fifteen years left to him as a ceramic tiler, if the accident had not happened. The doctor's response was that that was reasonably probable, but that one had to state that one could not be more definite than that. Counsel then put that it could have been even less than ten to fifteen years before that plaintiff would have had to give up that type of work. The doctor's reply was that it possibly could have been, but he would say not probably.

40. By agreement between the parties, I admitted into evidence the reports of Dr Brooder and Dr Oates, limiting the use of those reports under s 136 of the Evidence Act 1995 (Commonwealth) so as to exclude any expressions of opinion made by their authors. I admitted the earlier radiological reports on the same basis. The MRI reports by Dr Thompson dated 10 April and 18 April 2006, which had been made available to Dr Talbot shortly before he gave evidence, were admitted into evidence without objection, and without any such limitation.

Analysis of the medical evidence

41. The present case illustrates a potential difficulty with the single medical expert provisions in chapter 6 of the Civil Law (Wrongs) Act. As Justice G.K. Downes of the Federal Court of Australia said in a paper delivered at a seminar on expert evidence conducted by the Australian Institute of Judicial Administration (`Expert evidence: The value of single or court-appointed experts', 11 November 2005):

The ultimate decision-maker must always be the judge. Expert opinion plays a subservient role. ... The final decision lies with the judge even if there is only one expert witness. ... In cases where there is an issue on a field of expertise and there is only one expert witness, the requirement to expose criteria to enable a conclusion to be evaluated seems somewhat pointless when there is no alternative opinion available.

...

The fallacy underlying the one expert argument lies in the unstated premise that in fields of expert knowledge there is only one answer. Of course, this is nonsense. The law is a field of expert knowledge. How often do the seven wise persons in Canberra arrive at the same answer, and for the same reason? One wonders why appellate courts sit in banc, if one expert is enough, or why appellate courts are even necessary, if one person can be trusted to arrive at the correct result. The answer that is given is to say that single witnesses will not be appropriate in every case. My thesis is that they are rarely appropriate.

42. The parties prepared for the hearing of the present action on the assumption that expert medical opinion evidence, other than that of Dr Talbot, would be inadmissible. The question arose squarely for determination when counsel for the plaintiff tendered the clinical notes of the treating general practitioner. I held that the notes, including expressions of opinion, were admissible for reasons which I published at the time: Pappas v Noble [2006] ACTSC 39. In short, I found that s 84 of the Civil Law (Wrongs) Act, which provides that expert medical evidence may be given only by a single appointed expert, was inconsistent with s 56 of the Evidence Act, and hence inoperative to the extent of the inconsistency.

43. The issue arose during the course of the hearing: the parties had not contemplated until then that the evidence of other specialists, such as Dr Brooder and Dr Oates, might be admissible. Their reports had not been formally served, and notice requiring their attendance for cross-examination had not been given. The problem was resolved to an extent by my admitting their reports into evidence as part of the material with which Dr Talbot had been provided for the purpose of expressing his opinion. I limited the use of the reports of Dr Brooder and Dr Oates so as to exclude their expressions of opinion as evidence before me.

44. I am informed that the Attorney General for the Australian Capital Territory proposes to introduce legislation having the effect of `repatriating' the Evidence Act: that is, passing an Act in identical terms to the Commonwealth Act as an Act of the Territory. The Commonwealth Act provides for the making of a proclamation, upon which the Commonwealth Act would cease to apply in relation to proceedings in a court of this Territory, except insofar as it was applicable to proceedings in all Australian courts: s 4(6) Evidence Act. The effect of the passage of such Territory legislation, accompanied by a Commonwealth proclamation, would be to remove the inconsistency. If this comes to pass, the difficulty which confronts me in this case is likely to arise regularly.

45. I remind myself that I am not obliged to accept the evidence of a witness, including an expert witness, simply because that evidence is not challenged. Having said that, there is nothing particularly contentious about Dr Talbot's evidence as to the plaintiff's present condition and capacity. His apportionment of causation for the plaintiff's condition (50% to the motor accident and 50% to pre-existing asymptomatic degenerative changes) is an opinion in terms of medical causation, and was not challenged by counsel for either party, but it is not determinative of causation in legal terms.

46. Two issues were put to Dr Talbot in the course of his cross-examination by telephone, neither of which he had dealt with in his report. Both were put to him as `questions without notice'; he had no opportunity to give his answers the consideration which they deserved and which he could have given them if they had been put to him as assumptions for the purposes of his report. The first was whether it was appropriate for the plaintiff to continue with physiotherapy. His `off the cuff' answer was that physiotherapy would be of no use at all. The answer struck me as a general one, unrelated to the plaintiff, and based solely on the fact that, when he gave his answer, it was more than two years since the injury. I note that Dr Brooder took a contrary view; Dr Oates was not asked to express an opinion on the question. The plaintiff's evidence was that he was continuing to see a physiotherapist once a fortnight, on the recommendation of his general practitioner, and that his perception was that the physiotherapy was of benefit to him. I think it likely that the plaintiff will continue with physiotherapy: I see no prospect that he will be persuaded by Dr Talbot's expression of opinion in the course of his telephone evidence to discontinue this facet of his treatment. This is a question on which I am not disposed to accept Dr Talbot's opinion.

47. The other issue which was put to him for the first time related to the plaintiff's future working capacity immediately prior to the motor accident. Counsel for the defendant, as I have said, obtained Dr Talbot's agreement to the proposition that the plaintiff would probably not have been able to continue working as a ceramic tiler to age 65, by reason of the likelihood of the development of symptoms caused by the degenerating condition of his thoracic and lumbar spine. Counsel put to Dr Talbot that a timeframe as short as ten to fifteen years would have been on the cards; the doctor accepted that timeframe as `reasonably probable'. Questioned further, Dr Talbot expressed the view that a timeframe of less than ten to fifteen years was possible but not probable.

48. This hypothetical question was not one which had been put to Dr Brooder or Dr Oates. I am not sure that Dr Talbot's expertise to express the opinion was adequately grounded in the evidence as to his training or experience. One can reasonably assume that orthopaedic surgeons generally come into contact, in a treating capacity, with patients who are complaining of symptoms viewed by their general practitioners as warranting an expert view as to whether they might be candidates for surgery. The expression of the opinion extracted from Dr Talbot would seem to require some study of a number of symptom-free manual tradesmen in the plaintiff's age group, some with and some without spinal degeneration, over a period of years. Dr Talbot had earlier agreed that there might be a poor correlation between radiological findings and symptoms, with some patients having significant damage or degeneration radiologically demonstrated, with little complaint; and other patients with significant signs and symptoms but little disclosed radiologically. It seems to me counterintuitive that a ceramic tiler aged 32, working at his trade for half his life by then with no pain or other symptoms, could reasonably be condemned to retirement within ten or fifteen years on the basis of degenerative changes detectable on an MRI scan. The proposition could be properly tested only by conducting periodic radiological investigations of a control group of tradesmen every five or ten years during their working lives. I do not suggest that my intuitive view is of comparable weight to the opinion expressed by Dr Talbot on this question, but taking account of the considerations I have set out, I am not inclined to find, as counsel for the defendant urged me to do, that the plaintiff would have been likely, at the time of the motor accident, to have continued working as a ceramic tiler for as little as ten or fifteen years from the date of the accident; that is, to an age range of 42 to 47.

49. I nevertheless accept that the degenerative changes, though causing no symptoms to the plaintiff at the time of the accident, were likely to progress, probably eventually becoming productive of back pain and restriction of movement, and probably cutting short his career to some extent. This finding is better reflected in an adjustment of the amount I would otherwise have allowed for loss of earning capacity for the future, rather than by an attempt to arrive at a likely early retirement age and to carry out a mathematical calculation.

50. I am satisfied that the effect of the motor accident on the plaintiff has been much greater, by reason of his pre-existing spinal degeneration, than the likely effect of a similar trauma on a man of the same age with a spine in normal condition for his age. In assessing damages, I have taken account of the fact that the plaintiff's spine immediately before the accident was such as to have made him more vulnerable to other trauma to which he might have been exposed over the years than the norm.

Damages

51. The injuries and disabilities must in my view result in a substantial award of general damages for pain and suffering and loss of enjoyment of life. The motor vehicle collision in which the plaintiff was injured was a major one: not so much the initial impact, but its aftermath in which the plaintiff's van rolled over three times. The injuries were also serious, more so than appeared immediately. Their impact on this plaintiff has been greater than it might have been on others, by reason of this plaintiff's physical occupation as a skilled tradesman in the construction industry, and also by reason of the considerable part played in his life away from work by sporting activities, in particular grade cricket. His interests and skills always ran towards practical and physical activities. Sedentary activities never held any attraction for him. He has been denied the opportunity to continue to participate in competitive cricket, and a future as a cricket coach at a senior level is not available to him. He has effectively lost his career in his chosen trade. His choice of a rural block with stables and farm animals, and his decision to build his own house, reflect his pre-accident interests and skills as a practical outdoor man. Much of the life which he could look forward to is now beyond him.

52. Counsel for the plaintiff argued for an award of general damages of $65,000; counsel for the defendant suggested a range of $40,000 - $45,000. Having heard the evidence and observed the plaintiff in the witness box, it seems to me that both counsel have, if anything, undervalued this aspect of the claim a little. I propose to award $70,000 for general damages, of which I would apportion $30,000 to the past, attracting interest of $2,000.

53. Treatment expenses by the time of the hearing amounted to a little over $28,000; the defendant's insurer had paid some $16,400 of these. Some accounts had not been paid, but the plaintiff had personally paid about $7,000 towards his treatment expenses. To allow for the period between hearing and judgment I award $30,000 for past out-of-pocket expenses. The $7,000 paid by the plaintiff attracts interest at commercial rates, which I assess at $1,000.

54. As to future treatment, I accept that the plaintiff will continue to see his general practitioner from time to time for repeat prescriptions and general monitoring of his condition. He may need to see a specialist on infrequent occasions. He is likely to continue with pain-killing and anti-inflammatory medication as he needs it. I accept that he will continue with his exercise program and with Pilates. I accept that he will see a physiotherapist from time to time, on referral from his general practitioner. He is likely to seek treatment only when he needs it, considering that he will be paying for the treatment out of his own pocket. The amount allowed for future treatment must be reduced to take account of the possibility that his pre-existing degenerative spinal condition would at some point in the future have become symptomatic, and must also be reduced to reflect the usual vicissitudes of life. The imponderables militate against a mathematical approach to this component. Counsel for the plaintiff sought a general allowance of $15,000; counsel for the defendant refrain from putting a figure on it. I propose to allow $12,000.

55. For past economic loss, counsel for the plaintiff submitted that $70,805 should be awarded up to the time of trial, based on a loss of $655.61 per week. Counsel for the defendant did not argue with the general approach, but put forward a figure of $625 per week based on the plaintiff's 2004 tax return. As I have said earlier, the plaintiff's earnings varied with the availability of work. I accept the evidence that he had ample work available to him at the time of the accident. It is common knowledge that at present in the Australian Capital Territory there is an acute shortage of skilled tradesmen in the building industry, and a considerable amount of construction work in progress and in contemplation. At the same time I must acknowledge that the building industry is subject to cycles, and that from past experience it is likely that there will be downturns and lean years as well as booms in the future.

56. So far as the past is concerned, it seems to me that a figure of about $650 net per week is appropriate. This would result in a calculation of $106,600 if it were to be accepted that the plaintiff would have worked every week since the accident. To take account of gaps between subcontracts, and other vicissitudes, I would reduce that figure to $100,000. The loss attracts interest at the prescribed commercial rate of 9% per annum, spread over the period. I allow interest of $14,000.

57. I adopt the figure of $650 net per week as a starting point for the assessment of the future component of the plaintiff's loss of earning capacity. If he had not been injured in the motor accident, I think it likely that the plaintiff would have continued as a ceramic tiler, and would as the years went by have taken on one or more apprentices or junior tradesmen with a view to subcontracting work to them as the business expanded. This would have allowed him to cut back on his own physical work and increase the amount of time spent on obtaining work for the business and quoting for jobs, as well as supervising his junior tradesmen. A developing change in the structure of his business of this nature over time would have reduced the physical demands on his back and increased his prospects of continuing to work in the ceramic tiling area of the building industry well into the future. I accept that the development of his business in this way is not possible or practical now that he is unable to work at his trade himself.

58. As an indicative guide to the assessment of his loss, I note that the present values of a loss of $650 per week, for a man aged 35 to 60 (multiplier 900.2) and 65 (1003.8) are $585,130 and $652,470.

59. The plaintiff has not suffered a total loss of earning capacity. He has been assessed as capable of working in a number of occupations. None of them appeal to him particularly; however, my task is not to predict whether or not he will choose to engage in them, but to assess the value of his impaired earning capacity. I have no doubt that once this case is behind him, the plaintiff will take steps to engage in some form of income-earning activity. He struck me as a highly motivated man and I have no doubt that he will succeed in finding some area of work from which he will resume earning a living for his family. To achieve this he may need to gain some additional qualifications, perhaps by attending courses and passing examinations. No evidence was called on behalf of the defendant as to the availability of work in the occupations identified through the vocational assessment process, but I take judicial notice of the fact that unemployment in the Australian Capital Territory and in Australia generally is at historically low levels. Again I recognise that the employment market is cyclical and that the present climate cannot be expected to be permanent. During an economic downturn in the future, the plaintiff will be more vulnerable to loss of employment than if he had not been injured in a motor accident. If he were to find himself out of work during an economic downturn, his prospects of finding new employment would be reduced to a similar extent.

60. Counsel for the plaintiff submitted that an appropriate range for loss of earning capacity for the future would be $320,000 to $480,000, calculated on the basis of a 50% to 75% loss of capacity. Counsel for the defendant did not put forward a range, though acceptance of his general submissions as to loss of earning capacity would produce much lower figures.

61. Again, this is an area in relation to which attempts to arrive at a figure mathematically would be inappropriate. The plaintiff's spinal degeneration meant that he was vulnerable in the absence of the motor accident to a progressively reduced capacity to earn income as a ceramic tiler, and to the possibility of early retirement. Nevertheless he retained a significant working capacity, which has been greatly reduced. On balance it seems to me that an appropriate award for loss of earning capacity for the future would be $250,000.

62. I generally accept the evidence of the plaintiff and his wife as to the tasks around the house and small property he has found himself unable to perform, and which his wife has undertaken instead. Counsel for the plaintiff submitted that an appropriate award for the past Griffiths v Kerkemeyer component was $10,000, inclusive of interest, and for the future $5,000. Those figures appear to be reasonable and justified on the evidence.

63. The total of the individual components is as follows:

General damages	$70,000.00
Interest thereon	$2,000.00
Past out-of-pocket expenses:	$30,000.00
Interest on portion paid by plaintiff	$1,000.00
Future out-of-pocket expenses	$12,000.00
Past loss of earnings	$100,000.00
Interest thereon	$14,000.00
Loss of earning capacity - future	$250,000.00
Griffiths v Kerkemeyer - past	$10,000.00
Griffiths v Kerkemeyer - future	$5,000.00
Total	$494,000.00

64. On consideration, the total amount appears to me to reflect appropriately the impact of the defendant's negligence upon the plaintiff. There will be judgment for the plaintiff for $494,000. I shall hear the parties as to costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 23 April 2007

Counsel for the plaintiff: Ms L A Walker

Solicitors for the plaintiff: Baker Deane & Nutt

Counsel for the defendant: Mr M A McDonogh

Solicitors for the defendant: Sparke Helmore

Date of hearing: 24, 26, 27, 28 April 2006

Date of judgment: 23 April 2007