Angelo Passari v Canberra Concrete Pumping Pty Limited [1986] ACTSC 30 (9 May 1986)

SUPREME COURT OF THE ACT

ANGELO PASSARI v. CANBERRA CONCRETE PUMPING PTY. LIMITED
S.C. No. 632 of 1980
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Damages - personal injuries - assessment of general damages and past and future economic loss - no question of principle involved.

HEARING

CANBERRA
9:5:1986

ORDER

There be judgment for the plaintiff in the sum of $80,638.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in an industrial accident on 19 August 1978. The trial was limited to the assessment of damages.

2. The plaintiff is a married man and was born in Rhodes, Greece, on 27 October 1924. Hence he was almost 54 years of age at the date of the subject accident. He was employed as a formwork carpenter and engaged in the construction of an interior stairway in the Belconnen Mall. In the course of his work the plaintiff was struck twice by a hose containing concrete. The second blow caused him to come off his ladder and fall some distance to the ground. The plaintiff said in evidence that he remembered waking up in Royal Canberra Hospital. He was being lifted on to a stretcher and someone was trying to wake him. He remained in the hospital for a period of 10 days. He received morphine for pain and other medication.

3. The injuries sustained were concussion with anterograde amnesia of less than one hour, a number of fractured ribs on the right side, and a contusion of the right kidney with haematuria resolving spontaneously.

4. The plaintiff remembers being propped up in bed at the hospital. His head felt woozy as if he were drunk. When he came home from hospital he was forced to sleep upright in an armchair, his ribs were hurting and he had to have pills to help the pain. Over the next three months he gradually became able to sleep in a bed in a normal posture. He had difficulty in sleeping and only managed two or three hours per night for more than a year. He was woozy in the head for about a year. He still cannot sleep on his left side because of a breathing difficulty and he has to get up twice during the night and walk around.

5. His headaches started after he came out of hospital and as the years have gone by they have become worse. They vary in intensity from very severe to mild. They come on three or four times per week in the front of his forehead, both temples, behind the ears and between his eyes. They may last for anything from half a day to two days. When he suffers heavy headaches during the night he gets up and walks around for a while but has stopped taking any medication for them because they have no effect. He complained of buzzing in his head for the last six years, which has been perpetual in the last two years. He said that his hearing was affected by the accident. Prior to the accident he could hear very well.

6. It is the plaintiff's case that he has been incapacitated for work since the accident in 1978 and will remain incapacitated at least until he attains the age of 65 years, which might have been expected to be his normal working life. He said in evidence that he has tried various forms of light work such as gardening, but he does not manage very well. His capacity in the garden is reduced to about one quarter of what it was before the accident. According to him, he works for one to one and a half hours and then he feels cold all over and has to stop. Sometimes he may go back after an hour's rest.

7. Prior to the accident the plaintiff had worked in carpentry and formwork and had also done a little work as a bricklayer. He said that he enjoyed work and always did overtime of two hours a day during the week and eight or ten hours on a Saturday.

8. After attending school in Greece and Italy, he went to technical college and qualified as a carpenter, foreman and director of works. He later became a builder. He came to Australia in 1974 alone and his family came out in February 1976. He said that he never had any trouble getting work as a carpenter.

9. In his evidence in chief he said that he had not tried to do the sort of work that he was doing at the time of the accident, namely as a carpenter. He had tried to do some work in 1980 by way of gardening but found that he did not have the energy. He claimed to have tried to do other little things around the home, for example, fix windows but again found he had no energy, got tired very quickly, and after stopping and starting had to give up.

10. In 1982 he did some work for a friend who owned a grocery shop at Ainslie. The job was to clean some shelves which involved taking the cans off the shelf, cleaning the shelves and putting the cans back. Then he had to clean the floor. It was a small job which should have taken about four hours but after three hours the plaintiff had to sit down and could not go on. He said he felt very tired and broke out into a cold sweat and was suffering giddiness. Consequently he did not go back to that work. He said also that he has done some gardening for the same friend at the friend's home five or six times after the small job at the supermarket. He found that he needed a break every hour or so because the same symptoms would come on. He said that he had not received any payment for working in the supermarket and the garden except by way of foodstuffs. He claimed that he would very much like to go back to work but he is just not able to do it.

11. In cross-examination the plaintiff agreed that he gave evidence in some workers' compensation proceedings to the effect that he had been paid $50, $60 or $80 per week for working for his friend. The amount paid depended on how much work he did. When pressed about his evidence in chief to the effect that he had received no payment other than by way of foodstuffs, the plaintiff said that he had received money when he worked for the friend the first time but groceries when he worked for him the second time. He conceded that he had worked for the friend in 1980, 1981 and 1982.

12. He conceded that his wife had a cleaning contract at a school in Phillip and that he had helped her to do a little bit of work but mostly he just took her to the school and back. He denied that he had done any carpentry work since the accident. He admitted that he had done some painting jobs. In those jobs he had tried to regain his ability to work on ladders and his sense of balance. He found, however, that he would only last about five minutes and then he would have to come down from the ladder because he was scared that he was going to feel dizzy. He said that he had tried that sort of work at friends' houses but could not remember which friends or where the houses were.

13. In cross-examination the plaintiff was shown a series of films depicting him engaged in various activities and he admitted that he was the person in the films. It was agreed that the films showed the plaintiff at the Ainslie Meat Market on 29 March and 2 April 1984, at his home in Limestone Avenue, on 1 and 12 June 1984 and at the home of Mr Xyrakis who owned the Ainslie Meat Market and the Ainslie Supermarket on 20, 21, 22, 26, 27 and 28 June 1984. The films portray an entirely different picture to that given by the plaintiff in his evidence. They show him doing a number of activities associated with carpentry. He can be seen to be sawing wood vigorously on a number of occasions, hammering a timber frame together, moving in and out of the rear door of the market premises, bending freely at the waist, kneeling down on one knee and both knees, carrying timber, walking briskly and generally demonstrating that he is quite agile. The films taken at the Xyrakis home at 512 Northbourne Avenue, Downer, show the plaintiff up a ladder, not very high from the ground, but obviously painting. When pressed about the contents of the film the plaintiff said in effect that he had not remembered having done that work as a carpenter when he gave evidence in chief.

14. There was some other evidence that the plaintiff had done work for other friends in the nature of carpentry, painting and bricklaying. Mr Crispino, who gave evidence on behalf of the plaintiff, said that the plaintiff had been to his home eight or nine times to do that sort of work but really had not been able to manage it.

15. A number of medical reports were tendered in evidence by both parties but no medical practitioner gave any oral evidence. His treating medical practitioner, Dr McIver, was not called to give evidence, nor was any report on him put in evidence.

16. In his report of 22 January, Dr Frank Long, general physician, reported that he had examined the plaintiff on 7 August 1979. Having obtained a history and conducted an examination, Dr Long concluded that the plaintiff sustained genuine injury to the right ear and labyrinth, and that the disturbance to his balance would prevent him from doing the type of work which he used to do previously on high buildings. No treatment was recommended. Dr Long considered that in addition to the organic symptoms there was a great deal of super-added anxiety giving rise to tension headaches, insomnia and probably aggravating his genuine symptoms as well.

17. Dr John B. Truman, consultant psychiatrist, reported on 15 August 1980 to the defendant's solicitors at the time, that the plaintiff appeared to be mildly affected emotionally as a result of the physical disabilities of headache, dizziness and tinnitus. He said the symptoms were consistent with a mild depressive illness which was not likely to respond to any form of treatment, but only if he lost his physical disabilities. The severity of his emotional problem was such that Dr Truman would not expect it to be responsible for his inability to work.

18. Dr William Knox, consultant psychiatrist, reported to the defendant's solicitors on 9 March 1984 that the plaintiff was suffering from post-traumatic stress reaction which aggravated his underlying relatively moderate physical difficulties. I note that Dr Knox did not assess the plaintiff as being totally incapacitated for work. He said that because he had set very high standards for himself the plaintiff could not return to work at the level he once did. He expressed the opinion that he would continue to suffer from a chronic low level of incapacity due to the psychiatric complications of his relatively moderate physical injuries.

19. The plaintiff's medical evidence does not support a case for total incapacity from the date of accident to the date of trial. In Dr Knox's opinion based upon his consultation on 9 March 1984, the plaintiff had some residual earning capacity at that time.

20. The plaintiff was also treated by Mr E.A. Petroni, clinical psychologist, commencing on 22 September 1982. He concluded that the symptoms complained of were consistent with a closed head injury and commenced therapy involving relaxation and biofeedback. After six sessions Mr Petroni reported that the treatment had met with no success and the therapy was terminated.

21. The plaintiff was first examined on behalf of the defendant by Dr Phillip Rundle, consultant physician, on 18 April 1979. Having obtained a history and conducted a clinical examination, Dr Rundle reported that at the time of his examination the plaintiff did not have any physical disabilities arising from the accident which would prevent him carrying on his work as a carpenter. He felt that the plaintiff should be encouraged to do so and suggested that kindly guidance and discipline was the only form of management required.

22. He was next examined on behalf of the defendants by Dr Edwin J. Cassar, consultant physician, on 17 June 1982. Dr Cassar expressed the opinion that if work at floor level would have been provided he would have expected that in spite of symptoms occasioning from concussion, the plaintiff could have worked as a part time carpenter after an initial four months convalescence and that after 2 years, i.e. as of August 1981, he could have been employed in a full time capacity as a carpenter without any restrictions. By his report of 13 December 1983 Dr Cassar reported that he reassessed the plaintiff on that day and recommended that he be referred to an appropriate psychiatrist for assessment. He could find no abnormality on examination in respect of the plaintiff's neurological state apart from overt evidence of depression.

23. Dr Cassar reassessed the plaintiff again on 24 April 1986. He said that the plaintiff's failure to return to work in any significant form was quite inconsistent with the usual recovery from his degree of injury and disability in the accident. He expressed his opinion that all his accepted injuries and disabilities ceased to affect the plaintiff by the end of 1983.

24. Dr B.M. Andrea, consultant surgeon, examined the plaintiff on 12 April 1984 on behalf of the defendant in relation to the plaintiff's inability to work since the date of the accident. Dr Andrea found that surprising because the head injury did not appear to have been very severe and tests did not indicate brain damage. He thought the hearing loss may even have been a natural process. He would have expected the plaintiff to recover within about three months and observed that the plaintiff seemed to be a chronic invalid but did not act in that way during the consultation.

25. Dr Graeme A. Robbie, consultant psychiatrist, examined the plaintiff on behalf of the defendant on 8 April 1986. The plaintiff would not concede that he was depressed. He told Dr Robbie he could feel a down turn in mood occasionally but only for a few minutes. He expressly denied any claim of depression or anxiety. Dr Robbie could see no evidence of any psychiatric condition and no psychiatric reason why he should not work.

26. The plaintiff claims to have suffered some hearing loss in the subject accident. In his report of 18 April 1979 Dr Rundle reported that the plaintiff's hearing was good and he did not suffer any ringing in his ears. As previously noted, Dr Andrea said that the plaintiff had some hearing loss but that this may have been by natural process.

27. The plaintiff was examined on behalf of the defendant by Dr Gerard Crisp, ear, nose and throat specialist, on 29 March 1982. He recorded an inner ear hearing loss bilaterally more marked in the high frequencies. He reported that the percentage loss was 39.1% on the right and 37.3% on the left, giving an effective hearing loss of 37.7%. He said that the tinnitus would be related to the hearing loss and both would be inconsistent with the effects of the head injury. Dr Crisp reported on 27 May 1982 that there was no demonstrable abnormality of balance on testing. He believed this to be a genuine complaint and was unable to predict how long the symptoms would last.

28. He was re-examined by Dr Crisp on 22 February 1984 and claimed that his hearing had deteriorated since 29 March 1982 when Dr Crisp conducted his earlier examination. The hearing loss corrected for his age was then calculated at 82.1% on the right and 92.7% on the left, giving an effective hearing loss of 84.2%.

29. The plaintiff gave evidence through an interpreter and, as is usually the case when an interpreter is engaged, it was very difficult to assess his credibility by reference to his answers and demeanour. It was quite apparent, however, that he had no difficulty in hearing questions asked in chief and in cross-examination through the interpreter, who was a fairly quietly spoken lady. It may well be that the loss of hearing noted by Dr Crisp on 27 February 1984 was not genuine. I propose to assess general damages on the basis of a hearing loss of 37.7%.

30. The plaintiff's general credibility was severely damaged by the films in evidence. I cannot accept his evidence of the limited work he has done since the accident and about his continuing incapacity in the light of the films and the preponderance of medical evidence.

31. I am satisfied on the evidence that the plaintiff suffered the injuries alleged and that he was incapacitated for some time with a resulting loss of enjoyment of life to some extent. I am, however, greatly influenced by the films in assessing his past and future economic loss. They show a very active, agile man, considering the plaintiff's age of nearly 60 years when the films were taken. I am not satisfied that he is suffering from any physical disability now.

32. I assess general damages for pain and suffering, inconvenience, loss of enjoyment of life and all the other matters I am required to take into account on the question of general damages, in the sum of $15,000.

33. I am not prepared to find that the plaintiff has been totally incapacitated for work since the accident on 19 August 1978. On the whole of the evidence I am satisfied that he was not suffering from any incapacity for work as a carpenter from a date no later than the end of 1983, but the evidence satisfies me that even prior to the end of 1983 he had some partial capacity to work. The agreed net loss of earnings from the date of accident to 30 June 1979 is $11,718, for the year ended 30 June 1980 $12,709, for the year ended 30 June 1981 $13,777, for the year ended 30 June 1982 $15,549, for the year ended 30 June 1983 $17,305 and from 1 July 1983 to 31 December 1983, in round figures, $8,000. The total of those figures is just over $79,000. Allowing for a residual earning capacity prior to the end of 1983 and vicissitudes of life in the past, I provisionally assess the sum of $60,000 for past economic loss.

34. The agreed prospective loss of earnings from the present date until the plaintiff attained the age of 65 years at 3% with no provision for inflation or income tax on the interest from the sum awarded, is $66,940. That figure is calculated by agreement at an earning rate of $340 per week net. In my view the plaintiff could earn in the order of $340 per week net as a carpenter, painter or general handyman and I am not satisfied that any present loss of earning capacity has been proved. Accordingly I make no provision for damages under this head.

35. The out of pocket expenses are agreed at $2,400 and the Fox v. Wood component on workers' compensation is $3,238.

36. The assessments under the various heads therefore are:

General damages $15,000

Past economic loss 60,000
Agreed out of pocket expenses 2,400
Fox v. Wood component 3,238
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Total $80,638
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37. There will be judgment for the plaintiff in the sum of $80,638.

38. I shall hear counsel on the question of costs.