Emidio Lucino Cuiffetelli v David Miller [1986] ACTSC 31 (12 May 1986)

SUPREME COURT OF THE ACT

EMIDIO LUCINO CUIFFETELLI v. DAVID MILLER
S.C. No. 120 of 1981
Damages

COURT

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

CATCHWORDS

Damages - personal injuries - general damages and loss of earning capacity - no question of principle involved.

HEARING

CANBERRA
12:5:1986

ORDER

There be judgment for the plaintiff in the sum of $127,473.28.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 1 March 1981. Liability was admitted and the trial was limited to the assessment of damages.

2. The plaintiff was born on 13 January 1950 near Rome, Italy. He came to Australia in 1964. He had about five years basic schooling in Italy. He is now married with three children. On arrival in Australia he was employed for about six years as a gardener at the RAAF Base, Fairburn, A.C.T. He then worked for Red Hill Plant Hire driving plant for three years, worked for Monaro Road Constructions for about one year, returned to Red Hill Plant Hire for another four years and then did two years with Citra (Australia) Ltd. For about three years prior to the accident he was working as a cleaner for Gold Star Cleaning Company. As there was a substantial issue about the nature and extent of his employment and contracting at the date of the accident, I shall return to this subject at a later stage.

3. The injuries sustained by the plaintiff in the subject accident were:

- fracture dislocation of the right forearm;

- severe sprain of the medial ligament of the right
knee;

- spinal disc protrusion at L4/5 level.

He was admitted to Calvary Hospital on the day of the accident and discharged nine days later.

4. At the hospital he came under the care of Dr David McNicol, orthopaedic surgeon. Dr McNicol diagnosed a fracture dislocation of the right forearm. The treatment was by way of operation to reduce and internally fix the fracture with a compression plate. It was also noted at the time that he had a severe sprain of the medial ligament of the right knee. He made slow but steady progress but was having an ongoing problem with his right knee. On 1 July 1981 his knee was examined under anaesthesia and arthroscoped. No significant lesion was demonstrated. He was reviewed again on 16 September 1981. He had a second operation at Calvary Hospital under general anaesthetic when the plate in his wrist was removed and the total end of the ulnar excised. He had a third operation on 25 November 1981 at Calvary Hospital under general anaesthetic. This was an osteotomy operation to correct a deformity of the radius and for further plating.

5. When last seen by Dr McNicol on 9 April 1986 it was noted that the plaintiff had a good range of movement in the right wrist but was still complaining of pain and swelling with use. The plaintiff's power grip was reduced and Dr McNicol assessed this in evidence at about 50% or so. In Dr McNicol's opinion the plaintiff's weakened right wrist is a permanent condition and will remain much the same. This disability will interfere with his ability to engage in some manual occupations. It was noted by Dr McNicol on 25 May 1983 that the plaintiff was probably suffering from tenosynovitis as a result of repetitive cleaning at about that time.

6. Dr Arnold Mann, consultant surgeon, examined the plaintiff for medico-legal purposes on 16 September 1983, 14 August 1984 and 4 March 1986. With regard to the right wrist, Dr Mann noted on 16 September 1983 that there was diminution of sensation over the radial third of the dorsal aspect of the right hand and the hand grip was poor. However, in March 1986 Dr Mann noted that the plaintiff's grip seemed to be somewhat better than previously, meaning that it had improved from a residual disability of between 5 and 10% to something more approaching 5%. The wrist has now stabilised in Dr Mann's view.

7. I turn to the plaintiff's claim to have suffered a disc protrusion at L4/5 level in the subject accident. The plaintiff said in evidence that immediately after the accident he noticed that he had pain in his back. When he left hospital his back was sore and after six months he was still suffering pains in the head and at the back of the neck. He did not take any medication for the pain. He said that before the accident he used to ride his bike around Lake Ginninderra but he cannot do so now because it hurts his back. He underwent an operation on his back on 29 November 1982. Since the operation the pain in his back is, according to his evidence, a bit less and he does not get pain in his legs any more.

8. His present complaints in relation to his back are that it gets sore. He cannot mow the lawn without soreness in the back, drive a truck, particularly when empty, he cannot lift or stand for long, he cannot ride his bike around Lake Ginninderra as he used to do because it hurts his back, he changed the wheel on his car and found that he was sore in the back after that.

9. He was apparently referred to Dr Gytis Danta, neurologist, on 29 July 1982. He complained of back ache which was a diffuse lower pain, bad for about five months after the accident, but since then recurred intermittently. He said to Dr Danta that he usually got the pain for 7-10 days then he may be free for a number of weeks. He felt that the condition was improving. It was made worse by physical activity particularly when lifting and bending and also by standing still for prolonged periods of time. Dr Danta expressed the opinion that the back ache complained of was basically a mechanical back ache. He said that all the symptoms complained of were due to the injuries sustained at the time of the accident.

10. In his report of 11 August 1982 Dr Danta said that he reviewed the plaintiff's lumbar films on 5 August 1982, that the films were really unremarkable and that he had booked the plaintiff for a lumbar radiculogram.

11. The plaintiff then came under the care of Dr R.L.G. Newcombe, neurosurgeon, on 12 August 1982. He complained to Dr Newcombe of continuous low back pain and bilateral sciatica behind the thighs, more on the right than on the left, which was severe three or four times per month for periods of between three and ten days. On examination Dr Newcombe found mild restriction of lumbar spinal movement. Straight leg raising induced some low back pain but no nerve root pain. The plaintiff had no sensory, motor or reflex changes. In his report of 15 November 1982 to the plaintiff's solicitors Dr Newcombe said that a report of the lumbar radiculogram showed that the plaintiff had an L4/5 disc protrusion "resulting from his injury". He said the plaintiff continued to have low back pain and sciatica lasting about ten days every four weeks. The possibility of operative treatment by lumbar disc excision had been discussed and Dr Newcombe said that the plaintiff was contemplating the operation. The operation was indeed performed by Dr Newcombe on 29 November 1982. The lower half of the spinus process and left lamina of L4 were removed and the ligamentum flavum L4/5. A formal decompression of the L5 root canal was performed. Some veins were dealt with by bipolar co-agulation. Dr Newcombe noted that when the plaintiff was discharged from hospital on 8 December 1982 he was symptom free and very pleased with his progress.

12. At review on 21 January 1983 the plaintiff was free of pain, straight leg raising was full in range and there was minor residual low back stiffness. Dr Newcombe reviewed the plaintiff again on 10 April 1986. He said that the plaintiff complained of some back pain on prolonged sitting but made no complaint of sciatica. On examination he found that the plaintiff had good range of lumbar movement and no sensory or motor reflex changes.

13. In cross-examination Dr Newcombe conceded that a disc protrusion is not an uncommon condition even without trauma and may be asymptomatic. He said that before an operation for a painful protrusion was performed it would be helpful to have other signs, for example, sensory, reflex or motor changes. There were no such changes in the plaintiff and no sign of nerve root pain. There were, however, complaints of attacks of pain every four weeks lasting for ten days. As a result of the operation, straight leg raising was back to normal and he was virtually pain free.

14. Dr Newcombe was cross-examined about whether the L4/5 disc protrusion which he operated on resulted from the subject accident. He said that the indication that the protrusion resulted from the accident arose from the history given to him. He conceded that the protrusion could have been in existence for a considerable time but it was the history of pain following the accident which satisfied him that either the protrusion was caused by the accident or it was pre-existent and made symptomatic by the accident. He added that lumbar canal stenosis may have pre-existed the 1981 accident and been made symptomatic by the accident.

15. I am satisfied on the balance of probabilities that the plaintiff did suffer a spinal disc protrusion at L4/5 level, or alternatively an aggravation of a pre-existing condition at that level in the subject accident and I propose to assess damages accordingly.

16. I return to the plaintiff's evidence of his treatment and disabilities since the accident. The plaintiff said in evidence that his right hand is not very strong. He can drive a car all right but his wrist and forearm hurt. He cannot stand vibrations to the right arm as it causes the wrist and hand to swell. He said he cannot hold things tight, to do so makes the wrist very painful. He can wash his car and work on it and can lift up to a limit. He claimed to be very nervous in motor cars.

17. He said he gets pain in the head and the back of the neck four to five times per month. He tried phsyiotherapy but that was of no use. The pains just come on. He also gets ringing in both ears all the time and complained of blurred vision when he looks behind in reversing his motor car. He said he used to play cricket but although he can still do it he cannot run. He cannot now play soccer with his children. He cannot cast a beach rod, or play 10-pin bowling or handle pistol shooting or look after his vegetable garden. He tried driving some plant with Flynn Excavation. After one to one and a half hours he had to give up because of a sore back and swelling of the arm. He claimed that he would not be able to do a job as a taxi driver, although he did apply for such a job and failed to be selected. He said he could not sit all day and could not lift luggage. He tried to do some cleaning and earned about $200 with Flynn General Cleaning Company but says he could not do a cleaning job now. He could not think of anything that he could do now.

18. He attempted rehabilitation for one year and was making tables and chairs. He said he gave that up because he was told that he was no good at it. He applied to the Commonwealth Employment Service for work but was unsuccessful. He last applied one year ago. He says he has looked for jobs in the newspaper but never found any. He has been receiving substantial workers' compensation ever since the accident.

19. As I mentioned earlier, it is necessary to examine carefully the evidence about the plaintiff's employment at the date of the accident. His claim was that he had income from four different sources at the date of the accident. He was employed by the Canberra Rex Hotel as a cleaner and had commenced that employment on 25 January 1981. I am satisfied on the evidence that this claim is correct. His hours of employment were from 6.30 am to 3.00 pm, Tuesday to Saturday inclusive and his rate of pay was $168.30 per week net. Those matters were established in evidence in the form of a letter from the Canberra Rex Hotel dated 28 August 1981 (Exhibit 8).

20. It was also claimed that the plaintiff was employed by Vince Marropodi as a casual plant operator. The evidence establishes that he had been engaged in this casual employment from September 1980 and was earning at the rate of about $44.80 per week net. So much is established by the plaintiff's own evidence and copies of his income tax return for the year ended 30 June 1981 (part of Exhibit 1). He also had some small income from a rotary hoe business which he commenced on about 20 December 1980. He was earning from that employment about $40.38 per week net. So much is also established from his 1981 income tax return.

21. The plaintiff also claimed that at the date of the accident he had a cleaning contract from Gold Star Cleaning Company Pty Limited from which he was making a profit of $345.23 per week. His evidence about this matter is that he had previously been employed by Gold Star Cleaning Company Pty Limited for about three years prior to August 1980. In that employment he had been earning about $150 per week. He asked his brother, who was the proprietor of the business, to put him on sub-contract. His brother agreed. Another set of premises for cleaning were added to the plaintiff's responsibilities, namely the Belconnen Fire Station, and from that time on instead of earning $150 per week he made a profit of $280 per week. He claimed to have no employees in that business but later conceded in cross-examination that his wife also worked in the business. The amount claimed as the profit from that business at the date of the accident is $345.23 per week net.

22. The plaintiff was, on his evidence, working 84 hours per week at the date of the accident. I accept his evidence in this respect and accept that he had an income from four different sources. I shall return to this subject in considering his economic loss and loss of any capacity.

23. It was conceded by the plaintiff in evidence that prior to 1981 all his income came from one job. In 1977 he earned $9,000 after tax, $6,000 in 1979 and $8,000 in 1980. Since the accident he has been receiving payments by way of compensation at a much greater rate than he was ever able to earn prior to 1981 when the accident happened. I am influenced by these matters because it is apparent that the plaintiff would have had very little incentive to return to work for up to 84 hours per week in order to receive the same sort of amount that he was receiving with no work at all by way of workers' compensation. Without any evidence from the defendant, I formed the impression that the plaintiff had grossly exaggerated his disabilities and had not been frank about his capacity for work since the accident.

24. My initial impression of him as a witness of truth was substantially confirmed by films of the plaintiff, depicting him doing various things on 18 February 1984 and 28 April 1985. They show him with two of his children walking quite briskly and apparently without disability in a shopping area. They also show him at his home and doing some work on a backhoe parked at the back of a carport. I accept the evidence of Mr Dickson, an insurance loss assessor and investigator retained on behalf of the defendant, that on 28 April 1985 he took the films shown in court and saw the plaintiff over a period of about four hours at his home. In that time for a period of about 40 minutes the plaintiff was seen to be doing work on the backhoe. He stepped up and down from the backhoe many times in that period and was using a screwdriver and small shifter in his right hand. No obvious restriction in movement or activity could be observed. Despite the poor quality of the film I accept Mr Dickson's evidence that the plaintiff appeared to be repairing and servicing the backhoe.

25. When shown the film in court and asked to agree that he was the person depicted working on the backhoe, the plaintiff denied that it was him. He said that it was his son. In my assessment of him the plaintiff lied in evidence about this matter. Earlier in his evidence and before he was shown the film, he had conceded that the backhoe was at his house for two or three days about one year ago and that he had done some work on it in the nature of repairs.

26. As the plaintiff was, in my assessment, deliberately untruthful about this matter, I am very sceptical about accepting his evidence generally, particularly where it cannot be tested. For instance, it is more difficult to accept the plaintiff's complaints of subjective matters, such as headaches. Furthermore, it is difficult to escape the conclusion that the plaintiff can do much more than he was prepared to admit.

27. Nevertheless, as I have already found, the plaintiff did suffer a very significant injury to his right forearm requiring three operations under general anaesthetic and periods of hospitalisation. He also sustained a significant back injury requiring surgery and hospitalisation. For pain and suffering, inconvenience, loss of enjoyment of life and all the other matters that I am required to take into account by way of general damages, I provisionally assess the sum of $30,000.

28. With regard to past loss of earnings, it was submitted that although the plaintiff had four sources of income at the date of accident it would not be realistic to award damages on the basis that he would have continued to earn an income from those four sources for an indefinite period. His earnings from those four sources, on the figures which I have already found, were calculated by his counsel to total $418.72 per week net.

29. It was submitted that it would be reasonable to assess damages on the basis that the plaintiff would have continued to earn at that rate for about the next two years. The submission was that the plaintiff had fortuitously put himself in the position where he was capable of earning from those four different sources at that rate and that he would have continued to do so while that work was available and while he was able to cope with it. I think this is not an unreasonable submission but I round the figure off at $400 per week and calculate the past economic loss for the first two years as being in the order of $20,000 per annum, i.e. $40,000. For the next three years, however, in order to assess damages up to the date of trial I think an income of about $300 per week is more realistic. That amount calculates out at another $45,000 over the three years, assuming that the plaintiff remains totally incapacitated since the accident to the date of trial.

30. Bearing in mind the unfavourable impression that I had of the plaintiff as a witness of truth and taking into account all the medical evidence, I do not think it is reasonable to regard the plaintiff as totally incapacitated since the 1981 accident. I think he certainly had some residual earning capacity not later than two years after the accident. In all the circumstances I provisionally assess the sum of $60,000 for past loss of earning capacity.

31. With regard to the future, the evidence is that the plaintiff could be given work in his brother-in-law's cleaning business if he was capable of doing the work. If he could work as a plant operator, he would be remunerated at the rate of $12 per hour. He would be required to work an 8-10 hour day five or six days per week. There is just some evidence that he might not be able to work to that extent. I am left with the impression, however, that he will be able to do so. To make allowance for the possibility that he will not, I think it is reasonable to allow some amount for loss of earning capacity. I provisionally assess the sum of $20,000.

32. The hospital and medical expenses were agreed at $10,033.37 and the Fox v. Wood component on workers' compensation at $7,439.91.

33. My provisional assessments therefore are:

General damages $30,000.00
Past economic loss 60,000.00
Loss of earning capacity 20,000.00
Agreed medical expenses 10,033.37
Agreed Fox v. Wood component 7,439.91

___________
Total $127,473.28
___________

34. Having considered the above total as a global sum I confirm my provisional assessments. There will be judgment for the plaintiff in the sum of $127,473.28.

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