Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1969) 119 CLR 118 at 125

Wilson v Piesley (1975) 7 ALR 571

1. Judgment for the plaintiff in the sum of $235,171.35.

2. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred at the intersection of Hindmarsh Drive and Mugga Lane at Narrabundah in the Australian Capital Territory on the evening of 11 November 1993. The plaintiff was proceeding through a green light and his car was struck on the driver's side by the defendant, who had driven through a red light at some speed. The uncontradicted evidence is that the defendant was travelling at a speed in the order of 100 kilometres an hour at the time. The impact was severe, spinning the plaintiff's car several times and knocking it into traffic lights, which were in turn knocked over. His car was written off. Liability was properly conceded, and the matter proceeded before me as an assessment of damages matter only. The plaintiff has complained of neck and back pain on an ongoing basis which he attributes to the motor vehicle accident.

3. The plaintiff was born in 1946, and joined the Australian Public Service at a young age. He commenced tertiary studies at Sydney University, but completed his honours degree at the Australian National University on moving to Canberra in the early 1970's. He had held a variety of posts in the public service at around the present Executive Level 2 or Senior Officer Grade C level since the mid 1970's. By the early 1980's he was working at this level in the Ombudsman's office, a job which he said frequently involved long hours.

4. I accept the evidence of the plaintiff and his partner that as well as enjoying the challenge of his work, he was also very keen on fitness, engaging in competitive and recreational running, both at lunchtimes and weekends, and bushwalking. It was his pattern to spend a weekend in Canberra, and then a weekend away with his wife at the coast or the mountains running or bushwalking. He also played squash, golf and touch football at a competition level to this time.

5. As well as these activities the plaintiff had been developing an interest in the industrial affairs of the trade union covering clerical workers in the Australian Public Service, which at that time was known as the Administrative and Clerical Officers Association. In January 1983 he ran for and was elected to the position of Secretary of the ACT branch of the union. Under the arrangements then in force with the Public Service Board he was able to take leave without pay from the Australian Public Service to take up this position, and the position had a salary package broadly in line with that of a Clerk Class 11, being equivalent to the top of the Executive Level 2 range.

6. I am satisfied that this was a demanding role, and the plaintiff put long hours into his duties as a union official. He was involved in complex negotiations, sometimes to the level of direct negotiations with Ministers, and I am satisfied on the evidence of the plaintiff and others that he also devoted considerable energies to recruiting and building up the financial base of the Canberra branch of the union. He was re elected to his position in 1986, and says that this was quite unusual, as the elections for this position were traditionally closely fought affairs, and incumbents were rarely re elected. From 1986 he served on the national executive of his union, and also represented it in various forums of the Australian Council of Trade Unions.

7. The next election was held in 1988, and on this occasion the plaintiff was unsuccessful. He says that in the latter part of 1988 he supervised the change over to the new secretary, which also involved a change of many other staff in the union office, as the successful new secretary appointed their own team to the various union positions. He says this was a particularly stressful time, and he saw his general practitioner with some difficulties during this period.

8. He exercised his right to return to the Australian Public Service, and was appointed on promotion to an acting position within the Senior Executive Service as an Assistant Secretary within the Chief Ministers Department in the Australian Capital Territory as part of the transition team on the introduction of self government for the Territory in 1989. He described this as a busy time. In 1990 he combined recreation long service and leave without pay entitlements to take the year off, and to undertake some overseas travel with his wife. He continued to enjoy his running and bushwalking, but was no longer playing sports at the competitive level that he had in the early 1980's. He said that he was able to maintain a degree of running and walking even during his very busy time with the union from 1983 to 1988.

9. In 1991 he returned to the Australian Public Service, to an Executive Level 2 section head position in the Department of Education Employment and Training. He continued with his running and walking. In 1992 the department introduced more widespread use of personal computers, and the plaintiff, who acknowledged that up to that time he had little experience in computers, undertook appropriate training. He developed some low back pain due to prolonged sitting at the keyboard, and underwent some massage therapy. An appropriate ergonomic chair was obtained and his back problems resolved.

10. In 1993 redundancy offers were made in his department, and the plaintiff elected to leave the Australian Public Service. He obtained an appropriate payout, which as well as his entitlements in terms of superannuation and salary, also contained what he described as a bonus of about $30,000. The total pay out was in the order of $110,000, based on a final salary of $53,000, and the plaintiff decided to obtain a taxi license and become a taxi owner operator. He purchased a taxi in April 1993, and by August 1993 had successfully obtained his license so that he could drive the taxi. He says that he saw this as a chance to change lifestyle and to be in his own business, and it was his intention to in effect drive the taxi himself during day shifts, and then put drivers on for evening shifts. The arrangements, as he described them, would be that he would not employ drivers, rather the drivers would operate independently, and he would receive a percentage of the fares they collected while on their shift in his taxi.

11. He acknowledged that he had not been sure about how long he would remain in the taxi industry, and that even by late 1993 before the accident he was considering getting out, as he did not find the work enjoyable.

12. The accident occurred in his private car. He was taken by ambulance to what was then Woden Valley Hospital. He says he thinks that he may have momentarily lost consciousness, and this is recorded in the hospital notes. The hospital notes record discomfort in the neck, and tenderness in the mid cervical spine. A neck collar was issued. He was x rayed in the cervical spine, and the hospital records show that this indicated, "some degenerative changes are noted but no evidence of an acute injury is seen." Although the hospital notes refer only to complaints of neck pain, the ambulance report records complaints of pain to "back neck" and the schematic diagram has a line running from the upper cervical spine to the mid back to record the area of pain.

13. He was discharged and returned home. He took some time off from taxi driving, but then returned to duty. In a personal injuries claim form signed in August 1994 he said that he lost three days following the accident only. He first saw his general practitioner, Dr Bicknell, on 17 November 1993. She reported on 21 September 1994 that he complained of headaches, ache in the base of the cervical spine and upper back pain. She noted some restriction in neck movements, and diagnosed soft tissue injury to the neck, and referred him to physiotherapy. She said that she had not seen him again for that complaint up to September 1994 and said,

"I therefore assume he has fully recovered with no permanent disability and no adverse effects on his working capacity. It is possible that he may be predisposed to further neck pain in the future due to this accident which could necessitate temporary analgesia and physiotherapy. In general terms though, Mr Paramore appears to have made a good recovery and has an excellent prognosis."

14. The plaintiff continued to see Dr Bicknell as necessary for other unrelated health conditions.

15. The plaintiff says that, although he was not seeing his general practitioner regularly for back pain, he was continuing to experience symptoms, and he did attend other health professionals. There is a report from a Dr Watkins, who is an osteopath and not a medical practitioner, who reports that he first presented to his office on 13 October 1994 with complaints of pain through out his shoulder, neck and mid thoracic area. This is some 11 months after the accident.

16. He continued to drive his taxi through 1994, but he says that when in pain he would reduce his hours on day shift driving. He purchased a special seat to provide additional lumbar support, but apparently the other shift drivers objected to this, and it was taken out. In January 1995 he commenced some casual work with an organisation known as Work Watch. He said that by that time he realised that it would be hard to make a decent living as an owner operator if he was unable to do at least half of the driving of his cab, and he needed to look for something else. He did acknowledge, however, that cab driving was not as interesting as he thought it would be, and he probably would have moved out of this industry after a few years in any event. He continued to drive and work part time until mid 1995 when he sold his taxi, and began full time work with Work Watch, which involved occupational health and safety issues. In October 1995 he commenced full time duties as an industrial officer with the Australian Services Union, with normal duties as an industrial officer/organiser, working in Canberra and with some travel around south eastern New South Wales. He has continued in this job on a full time basis to the date of trial, but says that he experiences back and neck pains, and has particular difficulties with travel if he has to drive long distances, and with sitting in long meetings and negotiations if he cannot get up and move around.

17. Mr Paramore and his wife say that he has not been able to engage in running since the accident, but he is still able to enjoy light bushwalks, but not overnight trips with a heavy pack. He still tries to be active, but operates within his limits. He still plays occasional golf. I am satisfied that, while he is still active and able to engage in activities, he has cut down his pre accident levels of physical activity considerably.

18. He again presented to Dr Bicknell's practice on 6 January 1995 and was seen by Dr Brown complaining of persistent neck pain and stiffness in the neck. He was given anti-inflammatory medication, and an MRI was ordered of his cervical spine. This showed, on the view of radiologist Dr Price a broad based central and right paracentral disc protrusion at C5/6, with no evidence of impingement on the cervical cord, and a small right posterolateral disc protrusion at C 6/7. Dr Brown in her report of 13 March 1995 revised Dr Bicknell's diagnosis with the benefit of the MRI scan, and concluded that the plaintiff,

"..suffered soft tissue injury and disc damage at the C 6/7 level in the motor vehicle accident of November 1993. He is presently able to work but complains of constant pain and reduced neck mobility and may in due course need surgical management."

19. The plaintiff has also been seen by Dr Corry who provided a medico legal report in his case. Dr Corry examined the MRI and concluded that the changes were essentially degenerative. He said in his report of 16 October 2000,

"The best diagnosis here is of soft tissue injury sustained in the cervical and lumbar regions. MRI scans of the cervical spine taken in February 1995 confirm that he has structural changes at the C 5/6 and C 6/7 discs and this is the most probable cause of his persisting neck pain. Only minor degenerative changes are noted in the dorsal and lumbar spine, and consequently, the pain in this area is most probably related to soft tissue trauma and secondary deconditioning responses."

20. Dr Kitchen, who examined the plaintiff for the defendant and reported on 22 May 1996, said that the plaintiff,

"..sustained a neck extension injury in a motor vehicle accident on 11.11.93. This is consistent with the nature of the accident. He then had ongoing symptoms of cervical and thoracic pain. His investigations have demonstrated degenerative changes in the mid cervical spine at two intervertebral levels, C5/6 and C6/7. These degenerative changes are long standing. The accident would have aggravated this underlying problem and by this stage some two years since injury, the aggravation would in my view, have ceased. The ongoing symptoms are degenerative in nature."

21. Dr Keiller, who has also reported for the defendant, also formed the view that the plaintiff has sustained soft tissue injuries and an aggravation of a previously asymptomatic degenerative condition at the C5/6 and C 6/7 level.

22. It should be observed that no general attack was made on Mr Paramore's credit, and the doctors reporting in the defendant's case made the observations that he was reporting symptoms fairly and with no exaggeration. There was some challenge to the link between his complaints of pain in areas other than the neck and the accident due to his acknowledgment that he only began to seek treatment for lower back pain some ten months after the accident, but I am satisfied that he did make complaints of back pain to the ambulance officers and to Dr Bicknell. I am satisfied that in this accident, which involved considerable force and occurred at some considerable speed, the plaintiff sustained soft tissue injuries to his neck and back, and that the pre existing degenerative condition in his cervical spine was aggravated by the accident. Although the plaintiff did complain of some postural lumbar pain as a result of a transition to computers operations at work in 1992, I am satisfied that the degenerative cervical spine condition was asymptomatic prior to the accident.

23. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesley (1975) 7 ALR 571 Barwick CJ said at 575 :

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

24. It seems to me that in all of the circumstances of this case I should assess the plaintiff on the basis of a motor vehicle accident of considerable force producing a degree of soft tissue injury, but also aggravating a degenerative condition in the cervical spine, which has continued to cause problems.

25. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J In Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 where His Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

26. In respect of general damages, I assess the plaintiff on the basis that this accident, which was of considerable force, has produced soft tissue injuries and aggravated his pre existing asymptomatic degenerative condition. I accept that he has continued to experience neck and back pain, with his back pain emerging as a problem some time after the accident, but I note that he did report mid back pain to the ambulance officers and his general practitioner of first presentation. I accept the evidence the plaintiff has given about his physical limitations, which has been supported by evidence of co-workers.

27. Where an injury aggravates and brings to symptoms a previously asymptomatic degenerative condition it is not uncommon for expert witnesses for the defendant to report, as Dr Kitchen and Dr Keiller have done in this case, that in their opinion the effects of the aggravation have now ceased. It is for the defendant to prove such an assertion, and I am not satisfied in all of the circumstances of this case that the plaintiff would have come to his present symptoms regardless of the accident by now. He was a very vigorous and active man, engaged in a wide range of sporting and recreational activities of a physically demanding nature for many years before the accident with no back and neck pain. He acknowledged some low back pain due to postural difficulties when first engaging in keyboard related computer activities in about 1992, but says these resolved with some massage, and appropriate occupational health and safety advice and ergonomic equipment. I have no reason to believe that this difficulty was related in any way to his underlying back condition.

28. This is not a case where there was a relatively minor accident, such as a low speed rear end impact which is said to aggravate a condition. The trauma here was substantial, and has had a marked impact on an otherwise very physically active man. I accept, however, that the underlying condition was present and was heading for symptoms at some time. Taking all of the evidence into account I assess general damages in the sum of $50,000, which is consistent with the submissions made to me by senior counsel for the plaintiff, with $40,000 attributable to past loss based on the underlying degenerative nature of his present symptomatology generating interest of $5,830. I should add that I consider it quite appropriate for counsel, if they wish, to address me on their view of specific quantum in terms of general damages. While there has been a traditional reluctance to do this, based it seems on remarks of the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1969) 119 CLR 118 at 125 it seems to me that it is now appropriate, particularly in this jurisdiction where decisions on quantum are made by a judge or master and not a jury, for such reference to be made, and this seems consistent with remarks of the Full Court in Hebditch v Shepperd (unreported, 12 July 1996, Gallop, Higgins and Ryan JJ).

29. Out of pocket expenses were agreed in the sum of $17,421.35, and I award this full amount.

30. Future out of pocket expenses were not expressly particularised, but it was apparent that this was a claim based on an ongoing accident related incapacity, and no issue was taken of the plaintiff making a claim. The plaintiff has been seeing various alternative health therapists, and says he obtains some benefit. Dr Corry, who gave evidence in his case, said in his report that, "no specific treatment is likely to alter Mr Paramore's overall situation" but that, "It is probable that his function could be significantly improved in a remedial therapy program, emphasising spinal health and fitness." His general practitioner gave evidence in her report that his future treatment would be reviews as needed, anti inflammatories as needed and physiotherapy as needed. Although she put this on the basis of a consultation every 3-5 months, this is a greater frequency than has been the pattern to date. Dr Keiller, who saw him for the defendant said in his report in August 1998 that he might be helped by a rehabilitation physician, and that he would benefit from physical therapy. It seems to me that this is a case where I must adopt a buffer approach in relation to future care expenses, bearing in mind that the underlying condition is degenerative in nature. I award the sum of $12,000 in respect of future medical expenses.

31. The claim for economic loss was particularised on the basis of loss of earnings to date based on the difference between assumed earnings as a taxi owner operator and his actual earnings. On the basis of his particulars, a claim was made for $69,300 being the difference between a claimed net income as a taxi owner operator of between $35,400 and $37,500 and his actual earnings, which have been in the order of $31,300 since his commencement as a full time industrial officer in 1995. There was no reference made in the particulars to the basis of comparison wages as is required in Order 36A rule 3. Mr Muir, the director of the Canberra taxi cooperative gave evidence, but he was unable to provide meaningful information on actual average net earnings of owner operators. He was able to say that the average billings across the year for all taxis in the years 1996 to 2000 is $126,950 per annum, but of course from this must be deducted all expenses, drivers wages or percentage payments and the like.

32. I am satisfied that the plaintiff was not able to operate his taxi as long as he would have liked due to his neck and back pain. I am satisfied that this was a reason why he left the industry, although I also accept his evidence, which was frank and in a sense against his interest, that he would have probably left the industry after a few years in any event, as he did not find the work interesting enough. He has, despite his difficulties, returned to work in the industrial arena, which he clearly enjoys and is committed to. Mr Mick Doust, an industrial officer with the Electrical Trades Union, gave evidence that he had worked with the plaintiff in connection with joint industrial activities involving the electrical supply authorities in southern New South Wales in recent years, and he spoke very highly of Mr Paramore's skills. He said that he had observed him having apparent difficulties with his neck and back, and on one occasion having to lie on the floor during a meeting. I accept his evidence.

33. Mr Doust also gave evidence to support the plaintiff's evidence that there had been negotiations between the plaintiff and the Electrical Trades Union about the plaintiff joining that union for a job in their Sydney head office at a higher level of pay and with a full private use car. This did not come to fruition, because the plaintiff said that he would not be able to cope with the travel involved. The job would have been in Sydney, and he would have continued to reside in Canberra. I accept that there were negotiations about Mr Paramore filling this position, and that his back and neck would have been a problem with travel, but I note that there would be other reasons why a job requiring a person to work in Sydney might not be attractive if they wished to continue to reside in Canberra as Mr Paramore did.

34. The position Mr Paramore continues to hold, and apparently to do very well, is remunerated at a level below that which he attained when he was an elected secretary of his union, and also below that which he had attained when working in the public service. I am satisfied that, if it were not for his limitations from his neck and back, which I accept are to date entirely attributable to the accident, the plaintiff would probably have left the taxi industry within a few years of the accident, and he then could have been expected to have been able to have attained a position within the public service at around his prior level of remuneration. A complicating factor here is that he did not give evidence that he had or would have attempted this, as he clearly enjoys working within the trade union movement, and he has found a position which he enjoys. Moreover, he had made a conscious decision to leave the public service for lifestyle reasons and accepted his redundancy package in order to move into the taxi industry for a period. It seems unrealistic to adopt an arithmetic approach to past wage loss based on continued public service employment from the date of the accident.

35. Ms Kerrie Smith, who works within the public service at the Executive Level 2 level gave evidence in support of Mr Paramore, and I permitted her to give evidence of her earnings, even though she had not been identified as a comparable employee as required by Order 36A. Her earnings after tax were between $10,000 and $15,000 greater than Mr Paramore's earnings as an industrial officer. It seems to me that this is a case where it is appropriate to adopt a buffer approach to past wage loss, taking into account all of the factors set out above, and I award the sum of $55,000 inclusive of interest for past wage loss.

36. The plaintiff's claim for future wage loss was particularised on the basis of the assumption that he would have been either a taxi operator or a senior union official to age 65 years, and was claimed in the sum of $292,800. I permitted the plaintiff to revise the basis on which this claim was put, within the outer bounds of the particularised claim, to base future wage loss on the assumption that he could otherwise have worked within the public service at the Executive Level 2. This claim was put forward on the basis of a net loss of $300 per week, which I am satisfied is reflective of the difference between his present earnings and an Executive Level 2 within the public service. Mr Donoghue projected this forward to in his final claim for 452 weeks, taking the plaintiff to retirement age. He then applied a normal 15% discount for contingencies, to produce a future wage loss claim of $115,000.

37. It seems to me that this is a broadly fair approach on the facts of this case, save that the contingencies factor does not take into account the possibility that the plaintiff's degenerative condition could have come to the present symptoms. It seems to me that I must factor this in to any wage loss claim. A discount of 30% for contingencies produces a figure of $94,920, and it seems to me that this is more appropriate. I would add that I am influenced in this approach by my impression gained from the evidence that the plaintiff has been quite driven and successful in his career to the date of the accident, and I am satisfied that he is a person who would strive to succeed in any venture. I am satisfied that an award of $94,920 for future wage loss is appropriate in all of the circumstances.

38. This amounts to a total award of $235,171.35 which I consider to be appropriate in all of the circumstances. The defendant should pay the plaintiff's costs.

I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Counsel for the Plaintiff: Mr Donohoe QC with Mr Meagher