Michael Forisek v Garry John Bourke [1986] ACTSC 39 (29 May 1986)

SUPREME COURT OF THE ACT

MICHAEL FORISEK v. GARRY JOHN BOURKE
S.C. No. 1575 of 1982
Damages

COURT

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

CATCHWORDS

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

HEARING

CANBERRA
29:5:1986

ORDER

There be judgment for the plaintiff in the sum of $117,113.33.

Liberty to apply in respect of arithmetical errors or the like within 7 days.

DECISION

This matter proceeded to trial on the question of assessment of damages only, liability having been admitted.

2. The plaintiff was 53 years of age at the time of the accident, the cause of these proceedings, which occurred on 12 January 1981. He had been born in Hungary in 1928, where he left school at the age of 12. He had been apprenticed as a carpenter before being drafted into the German army at the age of sixteen in 1944. He returned to his home town in 1946 and there worked in the coal mines until 1956. He escaped from Hungary in that year, travelling to England where he remained until 1967, working in an electro-plating factory and as a television repairer.

3. He migrated to Australia with his wife in 1967, working as a labourer for two years in Canberra, and then for some nine years before the accident as a carpenter in the Department of Housing and Construction. He was there attached to the Roads and Bridges Section, stationed at Fyshwick. His duties were to erect road and street signs around Canberra and he also worked in the workshop making guideposts and street signposts.

4. In the course of these duties that he was involved in a motor vehicle accident on 12 January, 1981. He had driven a van from his work station to do some work on a road sign and had parked the vehicle on the side of the roadway. On completing that work, he had been climbing back into the van when, having taken hold of the steering wheel, and being on the verge of seating himself behind the wheel, the vehicle was struck from behind by a motor vehicle driven by the defendant. The van was pushed some 30-40 metres along the road as a result of the collision and was subsequently written off. The plaintiff was thrown around inside the cabin of his vehicle and subsequently reported to the Woden Valley Hospital where X-rays were taken. He complained of pain in the chest and neck, and of a sore right wrist. However, no fracture or dislocation was revealed, a diagnosis of mild whiplash-type neck injury was made and the plaintiff was allowed to leave.

5. The plaintiff found that later that day he could not lift his neck and this problem remained for three days. He went back to the hospital on the day following the accident complaining of this continuing neck stiffness. On examination, the neck muscles were found to be in spasm. The area was sprayed with a local anaesthetic solution to give relief. The plaintiff was also advised that there had been a fracture of the left sixth rib.

6. The following day, he consulted Dr. M. Evans, a locum for his local doctor, Dr. Gerard Ingram, when further symptoms of a mild flexion-extension of the neck were noted, and he was treated with rest, Aspirin and Codeine.

7. The plaintiff was absent from work for four days. He then continued working until July, 1982.

8. During this period, he continued to suffer pain in the neck and shoulders, together with occipital headache. His condition was reviewed by his local doctor, Dr. Ingram, on 20 March, 1981. In his report of 27 April, 1981, Dr. Ingram states that "he was still suffering from the effects of the flexion-extension injury and, in particular, that there was a limitation of flexion, extension and rotation to the right".

9. Early in 1982, the plaintiff again saw Dr. Ingram complaining of continuing pain in the neck and shoulders, loss of strength in his hands and, for the first time, pins and needles in both hands. There was also occasional shooting pain into his thumb.

10. Dr. Ingram then referred him to Dr. Raymond Newcombe, a specialist neuro-surgeon. Dr. Newcombe first saw the plaintiff on 8 April, 1982. X-rays at that time showed advanced degenerative changes at the C5-6 disc level. On 9 July, 1982, Dr. Newcombe carried out a Cloward's procedure upon the plaintiff, which involved the excision of the injured intervertebral disc with the removal of any disc tissue from in front of the coverings over the spinal cord and the six nerve roots at that level until those nerve roots were freed. There was then a fusion between the 5th and 6th vertebral bodies by the insertion of a bone graft taken from the plaintiff's right hip bone. That procedure was carried out through the front of the plaintiff's neck. The plaintiff then spent approximately one week in hospital following that operation and a further six weeks at home. He also wore a cervical collar for a period of approximately one month following the operation.

11. His position was reviewed by Dr. Newcombe on 19 July, 1982 and, in a report of that date, Dr. Newcombe states that "this man has done very well following (that operation)". In evidence, Dr. Newcombe stated that the plaintiff had indicated to him following that operation that there had been some improvement, his headache was gone and that his hands were stronger. However, the plaintiff himself stated that "there was no improvement in my condition". In fact, a pain developed which travelled down his spine and he would feel what he described as a hot flush down the whole of his left side.

12. Following six weeks' recuperation at his home, he returned to work and continued working until 1983.

13. During the latter half of 1982, Dr. Newcombe saw the plaintiff on three occasions. The plaintiff saw Dr. Newcombe on 15 March and 26 April, 1983. On the last occasion he underwent a myelogram which involved the injection of a liquid into the spinal canal which, under X-ray, shows up the space around the nerve roots and the spinal cord.

14. At a further visit on 5 May, 1983, it was decided that a second procedure would be undertaken. This was a bilateral decompression and the operation was performed on 11 July, 1983. It involved a midline incision in the back of the plaintiff's neck and the exposure of the spine. The bone from behind the nerve roots was then removed to relieve their compression. The plaintiff then spent approximately 8 days in hospital following that operation and was then off work for some 2 months. A scar some 7 inches in length on the back of the plaintiff's neck is a legacy of that operation.

15. In evidence, Dr. Newcombe stated that, following that operation, there was some improvement and, in a report of 23 November, 1983, he describes the plaintiff's post-operative course as having been good. This, however, is inconsistent with the evidence of the plaintiff given before me.

16. On the plaintiff's return to work, he had continuing difficulties and was eventually put off work on sick leave on 3 August, 1984. Following examination by the Commonwealth Medical Officer, he was retired on the grounds of invalidity from the Public Service on 24 May, 1985 and has not worked since.

17. The plaintiff states in evidence that his condition worsened following the July, 1983 operation and, although he continued to work during the period which followed prior to his retirement, he states that he would often have to leave half way through the day by reason of the pain in his shoulders and neck and the dull, persistent headaches that continued to affect him.

18. Dr. Ingram being overseas, the plaintiff consulted Dr. John Vett on 6 August, 1984. Dr. Vett sent the plaintiff for physiotherapy which the plaintiff took for some three months, together with anti-inflammatory drugs prescribed by Dr. Vett.

19. The plaintiff visited Dr. Newcombe on 23 October, 1984. In a letter of 7 November, 1984, to Dr. Vett regarding the plaintiff, Dr. Newcombe states:

"There is weakness of grip of both hands together

with headaches and with arm pain. Interscapular
pain also troubles him.

He has quite gross restriction of lateral flexion
of the neck to each side. Both biceps jerks are
absent and there is weakness in intrinsic
musculature of the hands. He has sensory loss in
the C6 and C7 nerve root distribution in both
hands.

. . . On the grounds of his continuing gross
cervical spondylosis, I think that he should now
be retired on medical grounds . . ."

20. Dr. Colin James Andrews, a consultant neurologist, had examined the patient on 18 January 1984. In his medical report of 27 January, 1984, he states that the plaintiff "had moderate to severe restriction of neck movement, there was diminished pin prick sensation in both hands extending up to the elbows, and there appeared to be some weakness of the small muscles of the hands." However, in evidence before me, Dr. Andrews stated that these signs revealed on clinical examination were unanatomical in that they did not relate in distribution to a peripheral nerve or a nerve root distribution. It was his view, as expressed in his report of 27 January, 1984, that "the neurological findings in the hands and arms may have been functional". On his examination of the plaintiff, he found no obvious muscle wasting as would be expected to be associated with the apparent weakness of grip in both hands, nor was there any indication in the nerve conduction studies undertaken of nerve entrapment.

21. However, in an examination of the plaintiff conducted by him at the request of Dr. Chandran in 1982, these nerve conduction studies had revealed some left ulna nerve entrapment, not apparent in his examination of the plaintiff in January, 1984. Although such nerve compressions can resolve, Dr. Andrews felt that his findings upon the 1982 examination would have been unrelated to the plaintiff's whiplash injury. In his report of 27 January, 1984, he stated that "there is no evidence of significant nerve root entrapment and I assume that the operative treatment has been satisfactory." His conclusion is that:-

"There is an element of functional overlay.

I suspect that there is some exaggeration of
symptomatology."

22. Dr. Andrews reviewed the plaintiff on 20 August, 1985 and in his medical report of 23 August, 1985, states that:-

"The clinical findings I felt were functional.

I believe that he has probably benefitted more
from the operations than he is now claiming and
what he is telling us is now at variance with what
is in Dr. Newcombe's report.

Surveillance would be of interest, as he gives the
impression that he is severely incapacitated but I
doubt this.

. . .

I could find no indication as to why his grip
should be as weak as he is claiming."

(Obvious typographical errors have been
corrected.)

23. The plaintiff's evidence before me was to the effect that his injuries had substantially incapacitated him. He gave evidence of continual dull headache, pins and needles down both arms and loss of strength of grip; such loss even to the extent that the plaintiff was unable to use a hammer without losing his grip upon the tool.

24. His evidence was that he persevered with his work during the period following the accident and preceding his retirement, although he found that effort difficult although it involved no change in the sort of work which he had been doing prior to the accident. Mr. John O'Brien, the plaintiff's supervisor for a number of years, gave evidence of a definite change in the plaintiff's attitude following the accident. He describes the plaintiff as having always been a good worker and that, even following the accident, he would always come to work and would try to work, but experience problems.

25. The evidence of Mr. O'Brien supported that of the plaintiff, and I accept that following the second operation there was but minimal improvement in the plaintiff's condition. He continued to persevere with his work, but continually had difficulty holding tools, bending and lifting, and would often come to work, find it impossible to continue and be forced to return home.

26. The plaintiff also gave evidence that he had been an interested home carpenter, doing work both to his own home and those of his family and friends in the period prior to the accident. He stated that he also been a keen gardener and fisherman, as well as enjoying ten pin bowling and prospecting. As the result of his injuries in the accident, he now found that he was unable to engage in these hobbies. Mr. John Vorosmarty, the plaintiff's stepson, gave evidence of his father's interest in fishing and gardening. He stated that his father no longer gardened and that he and his brother-in-law now took it in turns to do the gardening and lawn mowing on his father's property. His father, whom he had always thought of as a very strong man, no longer had any strength in his arms and found it difficult to walk for any length of time.

27. It was put to the plaintiff that he had for years had problems with shortness of breath and that a lot of his difficulties with his interests, particularly those which involved walking for any distance, arose from the fact that he no longer "had the wind for it". Dr. John Corry, a consultant in rehabilitation medicine, gave evidence that he had examined the plaintiff on 15 August, 1985 and prepared a report dated 10 September, 1985. In that report, Dr. Corry states that "the plaintiff has a barrel-shaped chest with mild expiratory wheeze and became short of breath on the exertion of dressing and undressing." He later states that the plaintiff "suffers from chronic obstructive airways disease and is short of breath on even moderate exertion, and this further limits his capacity for work." In evidence before me, Dr. Corry stated that this shortness of breath would prevent the plaintiff from doing heavy work, although he could engage in any mild form of exercise. Dr. Corry further stated that this condition does not get better and gradually worsens. I accept that this disability has been a factor contributing to the plaintiff's loss of quality of living. I take this view notwithstanding that the plaintiff gave evidence before me that he does not have and has not had any problems with his breathing. Dr. Andrew's report of 23 August, 1985 gives further support to this conclusion, stating that "(c)hest X-ray shows over-inflated lungs, presumably due to emphysema."

28. Moreover, Dr. Corry's report of 10 September, 1985, also suggests the existence of a pre-existing cervical spondylosis condition when he states that "(i)t would seem more probable . . . that some degenerative change pre-existed the injury and the accident served as an aggravation of a previously asymptomatic lesion."

29. Dr. Corry states in his report that the plaintiff's "age and lack of education . . . limit his possibilities for retraining. He has had experience in television repair in the past which is a reasonably light occupation, but if he were to return to this work he would probably require considerable retraining in modern electronic devices if he were to utilise this skill." Dr. Andrews, in his report of 23 August, 1985, states that "(i)f . . . the patient is as disabled as he is claiming at the present time, he is not able to . . . return to work." However, Dr. Corry testified that he was not, in fact, able to discern how disabled the plaintiff actually was. Nor was he able to determine what the plaintiff's work future would have been but for the accident in view of his presumption of a pre-existing cervical spondylosis condition.

30. I accept the medical evidence that the plaintiff will never work again as a carpenter. Further, his background and formal education are such that he is unlikely, in my opinion, to be able to take on any other work.

31. I see the plaintiff as a person, with little formal education, but proud of his physical ability to do his work, who has been devastated by the loss of the ability to work as he did before and his self esteem has been severely damaged. Nonetheless, and it may be as a consequence of that effect of the accident on him, I accept that there is an element of exaggeration by the plaintiff in respect of his disabilities and that he is not completely accurate as an historian of his condition at the various stages since his accident.

32. I accept Dr. Newcombe's conclusion that the accident aggravated an existing and gross cervical spondylosis, which had previously been asymptomatic, and that his incapacity to work is the result of that aggravation.

33. He agreed that the condition, had there been no injury to his neck in 1981, would have produced disabling symptoms within a few years, and that it was most unlikely that the plaintiff would have continued his work as a carpenter till age 65. To the suggestion that, given a sympathetic employer, there was no reason why he should not have continued working in carpentry work till the age of 65, Dr. Newcombe said, and I accept, that "it would be unlikely that he would achieve the age of 65 years, but it is probable that he would achieve work to the age of 60 years." In addition, I accept the evidence that the plaintiff suffers from severe chronic airways disease.

34. I accept the defendant's submission that I should prefer the view of Dr. Newcombe, the plaintiff's treating surgeon, as to his likely working future to the view of Dr. Corry that, but for the accident, he would "probably . . . have been able to continue (in his carpentry work) till normal retirement age."

35. The out-of-pocket expenses have been agreed in the sum of $6,441.55 and loss of wages, (including the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component) as being in the sum of $18,171.78. It is further agreed that a comparable employee would at present be earning a nett $330.00 per week and that a figure of $8.00 per hour is a reasonable rate in respect of emergency housekeeping services and gardening. The plaintiff, in evidence, stated that the assistance given him towards gardening and lawn mowing by his son-in-law and stepson would average about one hour per week. I think a sum of $2,500 is an appropriate figure for the Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 component for past and future services.

36. As a result of the accident, the plaintiff has suffered a serious and debilitating injury, which required two significant operations, with a long period of unfitness and pain. His enjoyment of life has been seriously impaired. In the particular circumstances of this man, the component for pain and suffering and loss of amenities bulks large. Against the background of recent awards at first instance and on appeal in the Australian Capital Territory, his non-economic loss in my view calls for an award of $45,000.

37. There was no claim or submission in respect of interest on any part of the award.

38. As for future economic loss, adopting a multiplier on the 3% table for three years yields a figure of $49,500. A discounting of 15% for exigencies reduces that figure to $42,075. In the circumstances of this case, particularly the shortness of the term, that is an appropriate percentage.

39. Since I do not believe that but for the accident, his earning capacity would be completely extinguished at age 60, an appropriate figure for this component is $45,000.

40. The above considerations result in a figure of $117,113.33. Looking at the matter globally, I am of the opinion that that is an appropriate figure.

41. I give judgment for the plaintiff in the sum of $117,113.33. I give liberty to apply as to arithmetical errors or the like, within 7 days. I will hear the parties on costs.