Deegan v Hayhoe [1993] QSC 380

r· . • · S<:..93/38o ·~iF State Reporting Bureau . TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Col>it·s thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 378 of 1992 TERRENCE MICHAEL DEEGAN and TERRENCE JOHN HAYHOE BRISBANE .. DATE 19/11/93 JUDGMENT Plaintiff Defendant 1 -- 1 of 17 -- 191193 HIS HONOUR: There will be judgment -for the plaintiff for $139,306.30. 1 ' 10 HIS HONOUR: This was a case whic~ on the view I have taken of it,depended upon a soft tissue injury. An ambitious attempt .was mounted and maintained to show it was a more serious case with other types of injury and with far wider implications, particularly of economic loss. Those attempts failed. In my view, the awarding of District Court scale costs in the plaintiff's favour sufficiently meets the requirements of justice to both parties in this situation. I do not think that the argument upon which the plaintiff's counsel has relied in seeking Supreme Court scale costs, namely that the solicitor in the event that he had succeeded in showing greater damages would have been liable for negligence in respect of the shortfall between the potential award and the jurisdiction of the District Court. It seems to me that the appropriate order is to limit-the costs to the appropriate scale of the District Court applicable to an award of $139,306.30, and I so order, including reserved costs, if any, to be taxed. JUDGMENT 2 20 30 40 50 60 -- 2 of 17 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN:· TERRENCE MICHAEL"DEEGAN AND: TERRENCE JOHN HA YHOE REASONS FOR JUDGMENT- THOMAS.J. ·Delivered the 19th day' Of :Nov'emtfer," 1993 ·· CATCHWORDS: Damages - quantum. Counsel: B.A. Latirie for the plaintiff· -- · SL93j380 . ~ tl • " .. ......._ No. 378 of 1992 . ·, Plaintiff Defendant .. ,. ) _, . • J- __,. r .. ~ • ~ - ; . ' . .' Solicitors: Gall Standfield and Tiley solicitors for the plaintiff Foley and Eardley solicitors for the defendant Hearing date: 25th October, 1993 -- 3 of 17 -- .. IN THE SUPREME COURT OF QUEENSLAND ···;-_.- BETWEEN: AND: . - .. · TERRENCE MICHAEL DEEGAN TERRENCE JOHN HAYHOE REASONS FOR.JUDGMENT- THOMAS J. Delivered the 19th day of November, 1993 No. 378 of 1992 Plaintiff Defendant The plaintiff was injured in a motor vehicle accident more than ten year_s ago, on 9th July, 1983. He was then a 42 year old business man who had been involved in a somewhat similar accident three years previously (14th January, 1980). As I see it his case is based essentially upon a soft tissue injury to his neck. He has undergone no operations, and I do not consider that he is presently under a great deal of physical disability. He also claims to be suffering. from a psychiatric disability caused by the accident, but I find that no serious symptoms emerged until six years after the accident, and I do not regard any current psychiatric condition from which he may suffer as attributable to the accident upon which he sues. The dimensions of this case, which occupied four sitting days, must be seen within the context of a relatively minor injury. The plaintiff was born on 30th October, 1940. He is a resident of Adelaide. He and his wife have a grown up daughter and a dependent daughter (12) who attends school in Adelaide. -- 4 of 17 -- 2 . After leaving school he followed various occupations including- jackeroo, roofing;_ encyclopaedia sales; the devising and promotion of a burglar alarm system; and various other business ventures including convex mirrors, and the promotion of a toy. The ventures had differing degrees of success and some failures. In 1979 he developed an illuminated display sign which he and his· salesman (Mr Metcalf) commenced selling. His sales method was mainly . by travelling or door to door selling, generally to small and medium sized businesses. On 14th . 1anuary, 1980 he sustained his first accident. His vehicle was stationary and it was subjected to a very forcible rear end collision rendering his Ford falcon motor vehicle a write-off. He complained of a shearing pain up the left side of his face, down the back of his neck and into the chest region. He was prescribed a neck collar which he wore for six to eight months. He was initially off work for three or four weeks. Valium was prescribed, and there is evidence that he became an excessive user of it. Although the plaintiff initially denied that he had received any psychiatric ·treatment prior to the 1983 accident (upon which he sues), there is clear evidence that he was referred to a psychiatrist Dr Gabrynowicz in January 1981 "for relaxation therapy for his anxiety and dependence on valium", which were thought to have resulted from his motor vehicle accident twelve months earlier. The referring doctor, Dr Morris observed with respect to the musculo- ligamentous injury to his neck, that "such an injury should have settled down by now, but Terry is still much troubled by tightening in the back of his neck and shoulders and at times b~-~numbness and pains in the fingers and hands and he also has difficulty in getting to sleep because of the pain." He attended three sessions of therapy with Dr Gabrynowicz but "dropped out" from treatment. '· -- 5 of 17 -- 3 ' In March 1981 · the plaintiff was referred by his· solicitors to Dr Sidey an orthopaedic specialist, apparently .for purposes associated with his claim in South Australia for damages for the 1980 accident. At that stage he complained that the lifting of the signs (associated with his sales work) caused pain in the neck and shoulders which was so bad that he had to stop working at 2 p.m. and go home to rest. Dr Sidey thought then that it was too early to assess his disability. Seven further medica~ reports presented by Dr Sidey to the· solicitors between July 1981. · and September 1982 show that from May 1981 he started complaining of severe low back ache resulting in "agony". Dr Sidey found considerable difficulty in associating this with the accident. One particular relevance of these documented complaints is that he had a symptomatic back condition well before the occurrence of the second accident. He was still complaining of intermittent neck soreness at the end of 1981. He described his back soreness as "very bad" and complained that he was· not. able to work as. hard as he had previously. He later complained of an incident in March f982 . . . when he was raking leaves and suffered a severe pain over the back of his neck up into his head followed by severe headache which continued for the nirie days .until he· . saw Dr Sidey on 23rd March 1982. He said his neck was more stiff and that he had a semi-permanent heada"che. It seems that his symptoms tended to subside and reoccur. In September 1982 he complained that activities such as gardening were only possible for a short time. Dr Sidey was not able to say whether his symptoms would ultimately disappear but - suggested a settlement "along the lines of persisting disability of approximately 5 per cent of his total body capacity". This report {17th September, 1982) has been · used as the basis of a submission that he was 95 per cent recovered from any -- 6 of 17 -- 4 disabilities from the first accident· by 9th. July, 1983. Whilst I accept that his condition and his attitude to work improved in, the latter part of 1982 and the first half of 1983, I· consider that the above description is unrealistic. The claim in respect of the first· accident was finally settled in 1986. During the present proceedings an understandable attempt has been made to minimise the effects of the first accident, whilst the evidence shows that during pendency of that claim some attempts were made to maximise it. I interpret the evidence which I have so far summarised as indicating that prior to July 1983 events had occurred in the plaintiff's life, including the accident of January 1980, which had already established a pattern of poor adaptation, and his problems which fluctuated from time to time included continuing neck pain, a back condition, and an episode of psychiatric abnormality requiring treatiTlent. I accept however that in the months preceding the second accident he made no complaints to the doctors and was improving his work output. However from admissions made, to Dr Sidey it· is probable he was only working about four hours a day even at that stage. The plaintiff is a respectable· businessman, and probably did not try to mislead ·the court. However as a witness he was prone to making guesses or confabulating, sometimes argumentative and on the whole somewhat unconvincing. There were too many ·Occasions when he made assertions which were shown to be quite false and which had t<;>. be retracted. These include the denial of psychiatric treatment, some · of his answers in relation to his work at Menzells and some of his evidence sugges.ting a b~tter recovery between 1980 and 1983 than the contents of exs. 8, 9 and 10, and even the evidence of Dr Sidey, suggests. -- 7 of 17 -- 5 The accident of 9th July, 1983- occurred when he was stationary at lights at the Gold Coast,- and once again he ·was struck from behind. Liability is admitted by the defendant. Once again the plaintiff describes a "shearing pain"· at the back of his head. He alighted from the vehicle, spoke to the other driver, helped push a vehicle from the road, and, in order to obtain proper particulars from the other driver, took the driver to the driver's house and drove back to -the side street. He was probably given comfort by persons living near to· the scene, and eventually spoke with the police when they came. Later Mr Metcalf drove hirri to the Southport Hospital where he was given sedation, a collar, and told to "take it easy". He then left. The plaintiff had been intending to market a new sign which he had developed in the latter part of 1982 described as a clip-on illuminated sign. Arrangements: had been made for this to be manufactur~d at Menzells factory in Adelaide. Most of his stocks of the previous sign had been sold during the preceding months. Not long after the accident his salesman Mr Metcalf returned to Adelaide and decided not to continue his association with the plaintiff. The reasons he gave were that he had been on the road too long -and he had a new relationship with a lady. - ~ The extent to which the plaintiff was affected by" this accident· in the months immediately following it is difficult to gauge. The pattern of daim in the present case has a number of similarities with the first claim. For example in· the first - - claim he said that he had-- just developed a new sign and was just about to go to Sydney to launch the product when he was delayed because of ·the accident, ·and when he did start to launch it he found he could only work about two- or three hours;a day . because of the neck injury. -- 8 of 17 -- 6 After the second accident he was fairly quickly_referred to Dr Sidey (who saw him on 28th July, 1983). It is-significant to note. that whilst he told Dr Sidey that his symptoms had been greatly aggravated as the result of the second accident, "he had had persisting pain before this happened" and had been to two doctors in Queensland and in New South Wales and told that he was suffering from arthritis or spondylitis in the back. His complaint at this stage (28th July, 1983) was that his neck gets bad if he works beyond late morning and certainly beyond 1 p.m. He seems to have been working about four hours a day in the early weeks immediately following the second accident. His next report (22nd May, 1984) records a complaint from the. plaintiff that "before the second accident he was able to work, but only four hours daily". At that stage (May· 1984) he acknowlec;lged having had no treatment apart from the collar since the previous November, but had been "quite unable .to work". He said that is . . ~ back condition had been considerably aggravated. There is . conflicting !Dedical opinion as to whether the second accident actually caused an aggravation to the pre-existing back condition. Dr Kidd, who was given a history that back pain did not occur until two months after the second accident .thought that this coul.d not be attributed to it even as an aggravation, and that the re-emergence of the coqdition was "coincidental". However Dr Sidey in his clinical notes recorded that on 3rd August 1983 _(three and a half weeks after the accident) he. was very stiff and very worried about his neck and low back, and this w~mld see~ to be a sufficient basis t~ justify the conclusion that the second accident prod_uced a te~porary aggravation . of the back condition. However the previous· history shows that it was already weH established and I do not consider that this · aggravation can be regarded as casting a new dimension upon the recurrence of -- 9 of 17 -- 7 problems that were already evident. The second accident should not be regarded as having done more than temporarily aggravate that condition. The picture described by Or Sidey in succeeding reports contains a composite picture of the disability that resulted from both the neck condition and the back condition. By May 1984 he considered that the plaintiff was suffering from between. 20 and 40 per cent disability of his body. The submission of counsel for.-the plaintiff was that the plaintiff commenced on 9th July, 1983 with a 5 per cent bodily disability attributable to. the first accident; that his disability progressively worsened up to this 20-40 per cent disability level by May 1985; that after this there was a definite improvement during the following eight years; and that over the last few years the total bodily disability level has been about 15 per cent. That is a useful summary of Or Sidey's assessments, but from it there needs to be subtracted the- effects of the previous accident and of the previous, conditions including most effects of the back condition. The claim for psychiatric injury depends upon the evidence of Or Bassett. He saw the plaintiff some fifteen to twenty times.. However his involvement seems to have been at the instance of the plaintiff's legal- advisers,- and he did. not see the , plaintiff until 27th September, 1989. This doctor -was of the-view that the plaintiff - tended to minimise his symptoms, a conclusion with. which I respectfully disagree.··- The history he was given does not appear to be complete or necessarily accurate, and · he was not told of earlier psychiatric disturbance preceding ·the 1983· accident. He conceded that such an omission was significant.· - It is worth mentioning that· in October 1986 the plaintiff had been sent· to a-psychiatrist (Or- Wurm) -for the express purpose of excluding psychiatric overlay, which had been hinted at in orie -of · Dr Sidey's reports. At that interview the plaintiff made· no complaint whatever of -- 10 of 17 -- 8 any anxiety, psychosis, . depression or any. psychological disturbance: He was then advised. that he had no such problems. The plaintiff concedes that' the anxiety of which he now complains . "seemed· to· get a lot worse" after he was defamed in Adelaide, and acknowledged that that incident accentuated his problems. That event appears to have occurred prior to the reference to Dr Bassett. In the result I am not satisfied that the plaintiff has established any psychiatric injury that was caused by the accident of 9th July, 1983. A claim ·was also presented relating to ear problems, principally in the left ear. He complains of a clicking and a fullness with associated dizziness and headache, although his headaches are said to be related to his neck pain. It would seem that he has a condition in the left ear and possibly in the right ear described by Dr Rolland as a "leaking window", and if its symptoms are sufficiently severe, . . operative treatment will be necessary. Such a condition can be caused by any sudden jolt, even a falling onto the buttocks, and of course it is possible that the motor vehicle accident· caused it. · However his failure to seek specific medical attention ·for such a condition or to raise it directly with a doctor before 1989 go against it having been caused by the 1983. accident. He may well have complained of dizziness and. headaches· and other symptoms which he now associates with this condition at an early stage, but such cornpl;1ints are in my view explicable by reference to the syndrome he described in relation to his neck and are not sufficiently clear for me to accept as evidence of the condition described by Dr Rolland at any time sufficiently close to the occurrence of that accident. It is possible that his wife is mistaken as to· the time when he started to complain about giddiness in any event. I am not satisfied on. the whole of the evidence ·that this problem is related to· the accident. -- 11 of 17 -- • 9 ., At attempt was .made to present this case as one justifying a very ·large award for economic .loss. I have so far endeavoured to describe the extent to which· the 1983 accident may be held responsible for producing his physical problems, and have rejected its responsibility for any mental problems. Looking at his history since 1980 it is clear that life has not bee.n the same for him ·since that time.- .There has been a recurrent history of pain, business attempts and business failures,· emotional or psychiatric reactions, periods of enthusiasm and partial recovery followed by flare- ups, and· overall a diminished. performance at work. Over much of· that period he claims to have been able to manage no more than four hours work per day. Th~ work has for the most part been selecting potential customers, driving a motor vehicle, removing a sign or signs from his vehicle showing it to intended customers. and· promoting sales. That he has been generally unsuccessful in business between '1980 and 1993 is undoubted. But what is the extent to which his lack of success between 1983 and 1993 is attributable to th~ second motor vehicle accident? The plaintiff's Claim is based on the assumption that but for the 1983 accident his sign.,-selling business would have been quite successful. He blames the accident for losses which were sustained in each and every financial year from 1984 to 1988 ! and for keeping his present earning level (in a printing business) to that of. only moderate success. The pre-existing problems have been down-played. A very thorough exercise was undertaken by an accountant, Mr Maynes . to . project his potential earning level and his actual earning level since 1983 .. However, having regard to the very limited level to which .I consider the plaintiff can attribute . his on-going problems to the accident,· and to doubtful assumptions of increasing· profitability of .the business, many of the assumptions made in this report (ex. 22)· are not to be accepted. As I see the plaintiff's business, he was in a highly competitive -- 12 of 17 -- 10 . area.· There was a modest market available for the signs he hoped to sell. The sign that he designed and arranged to have manufactured did not involve high technology or extensive capital, and it was a commodity in an ·area in which others, if mim:led to do so, could readily compete with him. He was in a small business of a kind with respect to which there has been a high failure rate over the . past decade. At the same time, his business was one of reasonable potential and had the potential for reasonable profit during the period whilst he remained in it. · ·His earnings during the 1982-1983 year were quite good, but it does not follow that it is realistic to select that figure as the base, and project it indefinitely forward. The "salary" paid from his trust company for that year was $19,132. The average over the three years including that year was $14,300 . . In 1989 he commenced:a printing business with his brother. This has been . moderately successful and has yielded reasonable income ever since. Examination of schedule 3 of ex. 22 shows that, with hindsight, his persistence in the sign selling business fr:om 1983 to 1989 was unwise. Indeed he sustained losses in all of those years except 1989 when a positive nett result for the year of $570 was obtained. Since becoming involved in the printing business his actual annual earnings have been $17,9=74, $12,237, $13,910 anq $17,442 respectively. It is true that the plaintiff's most serious complaints of adverse effects· from his injury relate to the period 1983 to·1985, but this cannot be the major explanation for continuing losses from 1983 to · 1989. Moreover, he still complains of disability, but is able to make a reasonable in~ome in the present business. It is more likely that market forces and other e~igen<;ies qf that particular_ busin~s tend~d against the maintenance of substantial profits over that period~ I do not regard his disabilities stemming from the accident of 1983 as the major cause of the losses .which he now seeks to recoup. Indeed, the .~:_ • -- 13 of 17 -- ,· 11 accounting exercises seek. to convert the. losses into projected profits in each of the ensuing ten years commencing at- a level of $19,132 and increasing. I do not propose ·to discuss ex. 22 further. It is a useful·essay in figures and contains useful information and data including the plaintiff's actual earnings over the past ten years. I consider that the 1983 accident contributed to a pattern of difficulties confronting him since that time and that it has been productive of· economic loss. The period of greatest loss would have been during the first two years, rioting that a definite i~provement occurred in his condition from 1985. I also note that his business was successful during the year preceding the accident and that it is reasonable to assume the continuation of profitability for at least a few years. It is impossible to undertake calculations with any precision, and in the end a broad brush approach is nec~ssary having ·regard to .the uncertain contribution that . the physical prpblems attributable to the accident have produced upon his economic career. I have been prepared to act generally upon the approach taken by Dr Sidey ,· with a reservation that in making. his assessments he has given greater credence to the plaintiff than I have given. On his general statistical observation that .80 per- . cent of persons with soft tissue injuries recover in six months, a further 15 per cent in three to five years, and that about 5 per cent go oh indefinitely, Or Sidey places the plaintiff in that 5 per cent. However all. this must be seen in the -context that the continuing effect of that soft tissue injury is now relatively slight, and it will become even· more slight after· the -litigation is ended and as further time elapses. Bearing that in mind, along with his present relatively satisfactory ·level of earnings, in my view the prospect of future economic loss from this point on, which is· teri years after the acci<:Jent, is very slight indeed. -- 14 of 17 -- 12 · .The more difficult task is to assess his past economic loss~ It was submitted on behalf·of the defendant that. in 1984 the plaintiff unreasonably relinquished the benefit of a contract under which he had sold rights to a new sign (which were then subject to a pending patent application) to a company ("Fatson") for $100,000. It was said that that sum should· be brought into account as income. The debt was not paid and the plaintiff did not choose to rescind the agreement. Nor did he take advantage of consent caveats held by him. However I accept his explanation that there ·was little prospect of recovery of the debt and do not consider that he unreasonably failed to mitigate his loss by failing to pursue this particular entitlement more rigorously.One of the possibilities, which seems by no means remote, is that the business may have been unprofitable in any event, and that the plaintiff would in any event have stayed in it too long as he seems to have done in the event. However, in line with what I have indicated, I shall allow a reasonably substantial assessment for the first two years, a moderate assessment for a further three years and a diminishing assessment over the remaining five years. I shall assess past economic loss at $70,000, of which I regard $40,000 as attributable to the first two years. I assess future economic loss at $8,000. Damages for pain suffering ~nd loss of amenities must take account of the fact that the plaintiff is a person who cannot readily tolerate injury or set-back and that in the event the pain in his neck has had a considerable impact upon his lifestyle. Accepting as I do the general tenor of Dr Sidey's evidence, he suffered fairly serious pain and.disability for two years ·diminishing thereafter. However he· still has some pain and disability attributable to· this particular injury. It will diminish still further, and may ultimately subside to nuisance value, but on the -- 15 of 17 -- 13 : evidence I accept he will probably always have some difficulty with it. His main interest seem ·to have been .his family and his ·business· activity and the relevant injuries have interfered with these. I do not overlook however that ·the pattern of interference had been set before 1983. This accident however played a significant aggravating role in his neck problems and a minor aggravation of his· back problems. I assess damages for pain suffering and loss of amenities at $30,000. · · A schedule of out of pocket expenses· has been prepared.. , I shall allow all expenses that relate to treatment of his neck ($7,301.30) up to the present, and those which appear to relate to his back for an arbitrary period of four years after the accident, which I think errs in favour of the plaintiff. There is some uncertainty as to the level of those expenses in any event. The only items alleged to relate to back treatment which have not been allowed are items 6 and :10. I shall allow the amount· attributed to travelling expenses for the purposes of these treatments. In the result $7,646.30 will be allowed for medical and related expenses. A full decade elapsed since the accident and there was inordinate. delay in bringing the matter to trial. In the exercise of my discretioni .am not prepared to allow any period greater than five years for the assessment of interest. Interest should be allowed on $20,000 of the damages for pain ·suffering and loss of amenities for a period of five years at 2 per cent namely $3,000. Interest will also be allowed ori the past economic loss for a period of five years at 6 per cent, namely $21,000 . . Interest .will also be allowed on the. actual out ·of pocket expenses. in. ex. 7 (approximately $2,200) for five years at 6]Jer cent namely $660. The total interest allowed is $23,660. -- 16 of 17 -- 14 Summary · .,., Damages for pain suffering and loss of amenities $ 30,000.00 Past economic loss $ 70,000.00 Future economic loss $ 8,000.00 Medical and related expenses $ 7,646.30 Interest $ 23,660.00 ... - TOTAL $139,306.30 There will be judgment for the plaintiff for $139,306.30. -- 17 of 17 --