New South Wales District Court CITATION: BELL v DODDS [2007] NSWDC 183 HEARING DATE(S): 29-30 August 2007 EX TEMPORE JUDGMENT DATE : 31 August 2007 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ CATCHWORDS: ASSESSMENT - severe back injury - effect of drug and alcohol abuse on life expectancy LEGISLATION CITED: Motor Accidents Compensation Act 1999 PARTIES: Stephen Charles BELL Heidi DODDS FILE NUMBER(S): Newcastle 156 of 2007 R J M Foord - Plaintiff COUNSEL: S J Harben SC - Defendant Kingston Swift - Plaintiff SOLICITORS: Dibbs Abbott Stillman - Defendant JUDGMENT 1 The plaintiff, Stephen Charles Bell, on his own admission is no angel. Over the last twenty years or so he has spent fifty per cent of his time in gaol. He has long term addictions to drugs and alcohol. 2 The matter before the court arises out of a motor vehicle accident that occurred on 2 August 2000 when he broke his back. The evidence establishes that he is significantly permanently impaired and it is agreed between the parties that his injuries exceed ten per cent whole person impairment. Breach of duty of care was admitted, contributory negligence was agreed at twenty five per cent. 3 The issues ventilated before the court were as follows. 1. The extent to which I should accept the plaintiff as a witness of credit. 2. The extent to which his lifestyle has affected his life expectancy and therefore, the damages to be awarded for non-economic loss. 3. His income earning prospects having regard to the requirements of s 129 of the Motor Accidents Compensation Act 1999. 4. His requirements for personal and domestic care; and 5. His requirements for future medical expenditure. Issue one - credit 4 The plaintiff is forty years old. I have already noted an extensive criminal history as set out in exhibit 3. The plaintiff did not concede that the criminal history set out in that exhibit was accurate but he conceded that, from 1988 to date, approximately fifty per cent of his life has been spent in custody. He is currently in custody. His first offence was committed in 1978 when he was eleven years old. 5 The offences for which he has been in prison have been varied. Many involved breaches of motor traffic laws; including driving whilst unlicensed or disqualified, dangerous driving, driving unregistered motor vehicles or unlicensed motor vehicles and driving or being conveyed in a stolen motor vehicle. There have also been offences of driving whilst under the influence of alcohol. Other offences include theft, receipt of stolen goods, assault, break enter and steal, drug cultivation or possession and the possession of unauthorised firearms. 6 He is currently in custody, on his evidence, for driving offences which have not been detailed. His custodial term expires in December 2007, unless a severity appeal listed for October 2007 is successful and he secures an earlier release. 7 The plaintiff has been a long term substance abuser. There was evidence which indicated a history of addiction to heroin. He conceded his addiction but stated that he was no longer using heroin. He is currently medicated with physeptone, the tablet form of methadone. 8 There was evidence of alcohol abuse also. The plaintiff denied that he was an alcoholic, stating that he was a binge drinker. I understood by this he meant that he drinks occasionally, but on those occasions he drinks to excess. 9 There was much evidence of the plaintiff that was inconsistent and indicative of a past and continuing practice of departing from the truth when it suited his circumstances. He stated in his evidence-in-chief that he was employed at the time of the accident. This was inconsistent with evidence of receipt of unemployment benefits at that time and his statement in the claim form, exhibit 2, that he was unemployed at the time of the accident. 10 The plaintiff's statement that he has not been employed since the time of the accident was inconsistent with parts of a report of Miss Robilliard, exhibit V, of 26 July 2001, indicating that he was continuing to work as a handyman and that he had expectations of earning income from the pottery that he makes. 11 The plaintiff stated that at the time of the accident he was not using heroin. This is contrary to the notes of the Dubbo Hospital to the effect that he was using three points of heroin daily. He stated that the records were wrong or that they reflect information given by him when he was in great pain and heavily medicated. 12 He stated that he was not alcohol dependent, contrary to various prison records indicating daily substantial alcohol consumption. He stated that those records were wrong. 13 On the basis of the evidence of the plaintiff's background and of the inconsistencies in his evidence to this court, I have proceeded to determine his claim on the basis that all of his evidence must be considered very carefully and that in circumstances where I should find some material to support his evidence amongst the other evidence before me. Issue two - non-economic loss 14 The motor vehicle accident occurred on 2 August 2000 when the plaintiff was thirty-three years old. His injuries involved facial lacerations and bruising to both legs. He has recovered from those injuries and the evidence at the hearing concentrated on the injury to his spine which was a severe multi-fragmented fracture of the L4 vertebrae. The defendant accepted that the injury was serious but pointed to aspects of the evidence that indicated that the plaintiff to date had not been limited in his activities by his injuries to the extent that he claimed. 15 Further it was suggested that the plaintiff's life expectancy was reduced by reason of his lifestyle so that his damages for non economic loss should be assessed at $100,000. 16 There was evidence that, apart from painkilling medication, the plaintiff received little ongoing treatment after discharge from Dubbo Hospital. His answer to this was that his requests for funding for physiotherapy, an MRI scan and specialist consultations were rejected by the defendant's insurer. Whether this is so or not, the medical evidence indicated that the treatment that the plaintiff has been receiving namely, medication and a supportive back brace, was appropriate. There was no suggestion of any need for alternative treatment, except that there may be prospects of surgery at a later stage in the plaintiff's life. 17 There was evidence that six weeks after discharge from hospital, the plaintiff engaged in assault and domestic violence and there were also firearms offences. This was certainly not conduct typical of a man who had recently suffered a serious spinal injury but one could by no means regard the plaintiff's self-destructive lifestyle as typical. In the light of the medical evidence, I would not regard this conduct as indicative of a reduced level of disability. 18 Dr Haynes noted that the plaintiff's hands were moderately work callused. The defendant put no questions to the plaintiff about this and he was therefore not invited to offer an explanation, if any. I have therefore not taken this material from Dr Haynes' report into account. 19 As far as the plaintiff's life expectancy is concerned, aside from his periods of custody and his drug and alcohol abuse, there was evidence that he was hepatitis C positive. There was some material in the evidence which indicated he is also hepatitis B positive,. This was rejected by the plaintiff. 20 The only evidence concerning the plaintiff's life expectancy came from Dr Redgment, the surgeon who treated him immediately after the accident. He stated in July 2001 that the plaintiff had probably reduced his life expectancy because he is hepatitis C positive. I accept that this is a matter to be taken into account in assessing the plaintiff's non-economic loss. 21 For the plaintiff it was contended that his injury was such that, in ordinary circumstances, an award of general damages in the range of $200,000 would be warranted. It was said that, taking into account the plaintiff's lifestyle and his physical condition, I should award him the sum of $150,000. 22 I accept this proposition for the following reasons. 1. Whilst the evidence of reduced life expectancy was limited, the plaintiff's lifestyle and physical condition is highly suggestive of some shortening of his life. Miss Robilliard's predictions concerning the remission of the symptoms of his anti-social personality disorder have not been proved correct to date. 2. The plaintiff's evidence of his physical limitations and their effects upon his quality of life, have been regarded by all medical experts as reasonable, having regard to the nature of his injury. That evidence was that he suffered extreme pain in the aftermath of his injuries and that he had a difficult time in hospital. He was discharged in a wheelchair. He was then provided with a four-wheeled walking frame, followed by crutches and then a walking stick which he still uses from time to time. He uses a back brace for support. He said he takes eight tablets a day for pain relief. He has three children; one son who is an adult, and two young children, a son who is six years old, and a daughter two years old. He is restricted in the games that he can play with the youngest of his children. He complains of ongoing pain and restriction in his daily activities. 3. The medical evidence indicates that the plaintiff's condition will deteriorate as he ages. He faces potential surgery for spinal fusion, which will disable him further. 23 I have therefore assessed his non-economic loss at $150,000. Issue three - income loss 24 No claim is made for past income loss. The plaintiff sought future income loss on the basis of $100 per week with a thirty percent reduction for vicissitudes. This was based on the proposition that Miss Robilliard predicted an improvement in his anti-social personality disorder as he matures. The defendant reminded me of my obligation to have regard to his past employment history in determining the plaintiff's most likely future employment circumstances. It was contended that on this basis only a very modest amount should be allowed to the plaintiff as a buffer in respect of any loss of income. 25 In looking at the plaintiff's past employment history, I have noted that there are in evidence no tax returns and there is no evidence of any prior employer as to work in which he has engaged since he left school at the age of fourteen years and nine months. 26 The plaintiff stated that he had worked in metal fabrication with his father and other family members. He said he has an interest in mechanics and motor vehicle engines. He said that at the time of the accident he was a self-employed handyman and he also had handyman work from a local builder, Marsden Homes. He was unable to provide evidence to support these assertions and had he been able to do so, it would have been indicative that he had been deceiving the Social Security Department from which he was receiving unemployment benefits. In the absence of evidence, and taking into account his criminal history, I find that at the time of the accident the plaintiff had no meaningful employment history. 27 The defendant also pointed to the material in the reports of Dr Bracken and Dr Haynes suggesting that the plaintiff had some residual earning capacity to work as a potter. All other medical experts stated that he had no meaningful prospects of employment. Pottery is a field of interest to the plaintiff. He produced photographs and a portfolio illustrative of the items of pottery that he had made. He also produced certificates of completion of courses and projects in pottery and ceramics which he had undertaken whilst in gaol. 28 The plaintiff's evidence was that in the past he had produced large pots for nurseries and that he could now only produce small pots, which did not interest him. This evidence was inconsistent with the items of pottery shown in the photographs. The plaintiff also said that whilst he had some equipment, he did not have the kiln necessary to fire the pots. Further he said, he could not crouch over a potter's wheel for lengthy periods because of the condition of his spine. 29 Realistically, although it seems that the plaintiff could, if he wished to do so, produce a limited amount of pottery, it is my view that the plaintiff remains with little income earning prospects. The back injury has a compounding effect upon the limitations placed upon his employability by his criminal history and his substance abuse. I have already noted that Miss Robilliard's predictions have not been borne out to date. 30 I therefore find that the very minor prospect of employment prior to the motor vehicle accident has been destroyed by the back injury and in the circumstances I find it appropriate to award the plaintiff a modest buffer of $35,000 to compensate for that loss. Issue four - care 31 The claim for past care for the plaintiff is not pressed. The claims for the future are based upon the material contained in a report of Miss White, an occupational therapist. It is claimed that I should allow the plaintiff three hours a week for domestic services. On the basis of the past history, it is accepted that it is likely that the plaintiff will spend fifty percent of his future in custody. On this basis, the claim has been reduced by one half. 32 The defendant contended that the evidence indicated that the plaintiff's wife performed all of the domestic work prior to the accident and that she will continue to do so in the future. It was argued that there was no evidence that the plaintiff performed any handyman services for the household. It was said therefore that I should allow only one hour a week under this head. 33 The plaintiff in fact gave evidence that he mowed the lawn and did handyman work in the home. He did state however, that his wife will continue to do all of the housework with help from their children. There was similar material in the report of Miss White. 34 On this basis, I accept that the plaintiff will require assistance with lawns, gardening and handyman tasks and car washing on a commercial basis. I regard two hours a week as reasonable for this purpose. 35 Although there was some evidence that the plaintiff performed minimal household tasks prior to the accident, there is no evidence that his incapacity to do those tasks after the accident will be met other than voluntarily, and therefore no allowance has been made in respect of domestic care. 36 I have allowed two hours a week for handyman services at $35 per hour, from which I have deducted fifty per cent, resulting in a figure of $31,276. 37 A claim is made for personal care on a deferred basis for twenty years to account for the plaintiff's condition as it deteriorates. Half an hour per day is claimed for this purpose. Again there was no evidence that other than voluntary care would be provided and thus this part of the claim has not been allowed. Issue five - out of pocket expenses 38 In evidence is a schedule indicating out of pocket expenses have been incurred in the sum of $5,062.79. The defendant indicated some disagreement with the amount claimed by the Health Insurance Commission, but did not articulate them and in the circumstances the full amount is allowed. 39 For the future, I accept the amount of $10 per week for general practitioners and specialists to be reasonable and supported by the evidence and the amount of $8,936 is allowed on this head. 40 A claim is made for surgery on a deferred basis for five years. Dr Haynes stated that he did not consider surgery would be required, but he appeared to address the current situation. Both Dr Bracken and Dr McEwin looked to the future. In my view it is probable that the plaintiff will require surgery at some later date but I regard the deferral period of five years to be too short. It is more probable that he will require surgery in about twenty years, when the need for the other aids arises. I have therefore allowed surgery, but deferred for twenty years, resulting in a sum of $7,540. 41 The claims for the bed and the spa have been allowed in the sum claimed of $4,134. The claim for the recliner is allowed on the deferred basis, in the sum of $1,163. The claim for the scooter has been allowed on the deferred basis, in the sum of $1,767. 42 The total of the amounts awarded is $244,878.79. From this sum is to be deducted the agreed amount of $5,858.71 to be credited to the defendant. This leaves the sum of $239,020.08. From this amount must be deducted 25% to account for the plaintiff's contributory negligence as agreed. The sum involved is $59,755.02, resulting in a figure of $179,265.06. ORDERS 43 The orders which I make are as follows. 1.There will be verdict and judgment for the plaintiff in the sum of $179,265.06. 2.The defendant is to pay the plaintiff's costs of the proceedings. 3.The exhibits will be retained for twenty eight days or until further order. 44 I thank the parties for their assistance in this matter. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.