Fail v Hutton & Anor [2003] QSC 77

SUPREME COURT OF QUEENSLAND File No 11220 of 2001 BETWEEN: GLENN NORMAN FAIL Applicant AND: HUTTON First Respondent AND: SUNCORP METWAY INSURANCE Second Respondent MOYNIHAN J – REASONS FOR JUDGMENT CITATION: Fail v Hutton & Anor [2003] QSC 077 PARTIES: Glenn Norman Fail (Plaintiff) v Paul Hutton (First Respondent) Suncorp Metway Insurance Ltd (Second Respondent) FILE NO/S: SC11220 of 2001 DIVISION: Trial Divison PROCEEDING: Claim ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: Wednesday 26 March, 2003 DELIVERED AT: Brisbane HEARING DATE: 6 November 2002 -- 1 of 6 -- 2 JUDGE: Moynihan J ORDER: Damages for the plaintiff in the amount of $367,587.40 CATHCWORDS: DAMAGES – General Principles – General and special damages DAMAGES – Measure and Remoteness of Damages in Actions for Tort – Measure of Damages – Personal Injuries – general principles – medical and hospital expenses – loss of earnings – whether plaintiff would be capable of re- employment - expense flowing from plaintiff’s inability to work - non-pecuniary damage – pain and suffering COUNSEL: M.Grant-Taylor for the Plaintiff M.J. Liddy for the Respondents SOLICITORS: Butler McDermott & Egan Walsh Halligan Douglas [1] On 29 June 2000 the plaintiff was a passenger in a vehicle which was stationery in a line of traffic when it was run into from behind by another vehicle. Liability is no longer an issue but it is necessary to assess the plaintiff’s damages. [2] Immediately following the accident the plaintiff attended his regular general practitioner. He was diagnosed as having sustained a moderately severe whiplash injury to his cervical spine. His general practitioner considered that the injury would probably take between 12 to 18 months to resolve and that the most important aspect of dealing with it was to be ongoing physiotherapy. It appears that the plaintiff also suffered a back injury but any consequences of that have been overwhelmed by the effect of the neck injury. [3] Follow up visits gave rise to concerns that the plaintiff was not making the progress, which had been expected. He was referred to a consultant orthopaedic surgeon who he saw on 16 August 2000. The surgeon confirmed the diagnosis of a moderately severe soft tissue whiplash injury and thought it would probably take 8 to 12 months for the injury to resolve. [4] The plaintiff continued to suffer from severe headaches and disabling pain. These disabling effects of the 29 June 2000 incident continue today and will continue. The plaintiff deals with them by restricting his activities to accommodate his capabilities, by the heavy use of analgesics and by physiotherapy and massage. [5] In my view the plaintiff is a credible witness not prone to exaggerating and is doing his best to accommodate the restrictions caused by the injuries he suffered on 29 July 2000 and to get on with his life. -- 2 of 6 -- 3 [6] The plaintiff has been assessed orthopedically of having a permanent 5% impairment of the whole person as a consequence of the injuries he suffered on 29 June 2000. As will emerge the effect of the injuries is greater than that percentage might suggest. [7] The report of 31 January 2001 by the Whiplash Physical Diagnostic Clinic, Department of Physiotherapy, University of Queensland, is a comprehensive assessment of the causes of the plaintiff’s disability and treatment considerations. The report concludes that he has dysfunction of the right C3/4, C2/3 and C0/1 zygapophyseal joints which is “likely to be responsible” for the plaintiff’s cervical spine pain and headaches. The symptoms are “perpetuated by neuromuscular control of the cervical spine and the right shoulder girdle”. The main aim of treatment is to improve that control including the provision of manual therapy. [8] The diagnosis was supported by x-ray evidence. A report of 20 March 2001 shows a general restriction to the range and motion of the cervical spine, with motion apparently occurring only at the C3/4 level which appeared comparable to the appearance of the functional views in x-rays reported on 29 June 2000. A further x- ray report of 29 June 2002 reported some loss of the normal position of the cervical spine which was considered to be associated with muscle spasm. The evidence does not sustain a conclusion of any pre-existing condition that could be a cause of the plaintiff’s disability. [9] By way of summary the plaintiff sustained an acute muscular ligamentous strain of the cervical spine in the accident of 29 June producing instability particularly at C2/3, which is the cause of his ongoing symptoms and consequent disability. There does not appear to be any indications supporting surgical or other intrusive intervention. The plaintiff’s future depends on the effective management of his systems by analgesics and physiotherapy and accommodating his activities to the restrictions imposed on him by his injury. [10] At the time of the accident the plaintiff, who was born on 27 November 1972, and was a self-employed cabinetmaker and kitchen installer. His work had been as a sub-contractor, substantially but not completely relying on work from a particular contractor. He was engaged in making the transition from that to working as a direct contractor. The plaintiff stated, and I accept, that this mode of working was more profitable than being a sub-contractor. [11] In my view the plaintiff would have successfully made the transition and continued as a self-employed contractor. There was some controversy at the trial about the effect of the introduction of the GST on the plaintiff’s work but I am satisfied that it would have been fairly transient. He planned to deal with that by having a house built to lock up stage and then completing it. He ultimately did so with considerable assistance from his father and friends. [12] I mentioned that the plaintiff’s impairment was more severe than the orthopaedic assessment of 5% impairment of the whole person. That is because his impairment -- 3 of 6 -- 4 precludes him from pursuing his pre-accident income generating and recreational activities. [13] The plaintiff is unable to carry on his activities as a cabinet-maker or kitchen installer because of the nature of the work involving it as it does activities such as overhead work, working in confined spaces and the like which aggravate the plaintiff’s pain and cause him to suffer headaches. [14] The plaintiff sought other avenues of income earning. This led him to take a basic computing course, a course in computer-assisted drafting and a course in kitchen design. Ideally his employment future lies in areas where he can work using these skills at his own pace or at reduced hours. [15] On 13 June 2002 the plaintiff obtained employment as an estimator with Asken Cabinets in Caloundra. This involves his spending a large part of his day sitting and working at a computer with his cervical spine flexed and it aggravates his headaches. He deals with this by taking stretch breaks and analgesics. [16] The plaintiff’s future earning capacity is problematic. He is obviously disadvantaged on the open labour market. There must be a question mark over his ability to work a 40 hour or more week over the rest of his working life. [17] Before the accident the plaintiff engaged in indoor cricket, martial arts, gym work, surfing, camping and fishing with his partner Tracey Crothers and her three children. At the time of the trial Ms Crothers was pregnant with their child. Put shortly the plaintiff prior to the accident lived an active life with a wide range of vigorous physical activity. He is no longer able to pursue that life style. He began to drink heavily and appears to have suffered mood changes. He has made efforts to control his drinking. The mood changes appear to have lessened following adjustments of the plaintiff’s medication. [18] The plaintiff deals with his pain as I have said by analgesics; he is a heavy user. He uses a tens machine, often lies on the floor on a thin hard mattress, massage by Ms Crothers affords him relief. He accommodates his activities to his capabilities. [19] Against the background of those findings I turn to consider the plaintiff’s damages in terms of the conventional heads of damage. PAIN, SUFFERING AND LOSS OF AMENITIES. [20] The plaintiff suffers constant pain with severe restrictions on his enjoyment of the amenities of life that he enjoyed before the accident. I award $30,000.00 Interest on $12,000.00 at 2% $565.00 -- 4 of 6 -- 5 LOST EARNING CAPACITY – PAST [21] There is in evidence a report by forensic accountants calculating the plaintiff’s past and future economic loss based on four separate sets of assumptions. It takes into account the implications of his disability for a lease on a motor vehicle used in his business as cabinetmaker, which he was not able to pursue. The second of those assumptions proceeds on the basis that of a 25% increase for the 1999/2000 financial year until the expiration of the lease. This is a useful starting point but the 25% is essentially arbitrary on a matter of judgement. The plaintiff’s actual earnings ($12,675.65) have to be brought into account. I allow $85,000.00 Interest at 5% $10,030.00 [22] The plaintiff’s net business income for the financial year ending 30 June 2000 was $47,975. I concluded earlier that the impact of GST on his earnings would be transient. I also concluded his income would increase as he became less reliant on sub-contracting work. The evidence does not allow this to be assessed with any precision. LOST EARNING CAPACITY - FUTURE [23] The plaintiff’s submissions in respect of this head take as a starting point that he suffers an approximate $200 per week when his earnings immediately prior to the accident are compared with his current earnings. The present value of $200 per week to age 65 is $175,120.00. [24] As I have already indicated there are however a number of interactive variables to be taken into account which are a matter of judgement rather than of calculation. [25] Had the plaintiff not been injured in the 29 June 2000 accident he would probably, subject to the ordinary vicissitudes of life, been a successful self employed cabinet maker focussed on the building and installation of kitchens. He could have however used his skills in other areas of cabinet making. [26] As a result of the accident the plaintiff can no longer follow his trade. He has retrained to acquire skills which allow him to work within his capabilities. Even so he is unlikely to be able to use those skills to their full extent for the whole of his remaining working life. He is disadvantaged on the open labour market. He may not always be employed, he may spend periods as a self employed worker, he may not be able to work full time consistently. While he is employed the plaintiff has the benefit of his employer’s superannuation contribution, while he was and is self employed he does not. Taking these consideration into account I allow $200,000.00 SPECIAL DAMAGES -- 5 of 6 -- 6 [27] These are dealt with by Exhibit 5, I do not understand them to be controversial. I allow $9,007.40 Interest on $2,435.40 $285.00 FUTURE TREATMENT [28] Physiotherapy: The plaintiff will continue to need this. His claim is calculated on the basis of $50.00 per week discounted @ 5% over 35 years, discounted for contingencies by approximately a half. I allow $20,000.00 Pharmaceutical expenses: A figure of $9 - $10 per week is justified for the present by the evidence but should be discounted for future contingencies. $6,000.00 TRAVELLING EXPENSES [29] 12 round trips @ 200km per round trip @ 50 cents per km to Brisbane for the kitchen design course. I allow $1,200.00 To and from Nambour for the CAD course.: Interest $1,800.00 [30] The plaintiff will incur some travelling expenses in the future for treatment. I allow $500.00 GRATITIOUS CARE [31] This head largely relates to massages and other assistance provided by Ms Crothers. I allow $2,000.00 For past care interest $200.00 Future care $1,000.00 TOTAL $367,587.40 -- 6 of 6 --