William Bruce Pullin v the Nominal Defendant [1986] ACTSC 54 (27 June 1986)

SUPREME COURT OF THE ACT

WILLIAM BRUCE PULLIN v. THE NOMINAL DEFENDANT
S.C. No. 1210 of 1983
Damages for Personal Injury

COURT

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

CATCHWORDS

Damages for Personal Injury - Aggravation of Spondylosis - Injury to knee - Other Supervening and Contributing Causes of Incapacity - No question of Principle.

HEARING

CANBERRA
27:6:1986

ORDER

There be judgment for the plaintiff in the sum of $85,950.00.

DECISION

This is an action for damages for personal injuries sustained on 6 March 1983. Interlocutory judgment was obtained on 14 December 1983. The plaintiff was driving a motor car which was struck by another vehicle. The plaintiff's evidence suggested that the collision was more or less head on, but he seems to have told the doctors that it was of a "side-swiping" nature. The collision occurred at about 6 p.m. in Hodgson Crescent, Pearce. The plaintiff was able to drive home to Torrens but he felt that his right knee had been damaged when it had been brought up against the dashboard or steering column. Later that night he found that he was unable to get out of his bath without assistance from his sons because of the condition of his knee and of the base of the spine. The plaintiff said that he saw his local doctor, Dr Doumani, a day or two later who put him off work for a week. He said he went back to his work as a cleaner but his injuries prevented him from staying for more than an hour. He said that he went back to the doctor and got another certificate to stay off work. He said that his knee was still swollen and his back was throbbing. He said that the throbbing in the back has been continuous ever since. In fact he has not been able to work at all since then.

2. Dr Doumani, who gave evidence, presented a somewhat different picture of these early events. He said that he first saw the plaintiff on 15 March 1983. The plaintiff gave a history of a motor vehicle accident as already indicated and complained of headaches, pain in the hips and pain in the right knee. There was a huge contusion on the right knee. According to Dr Doumani, he next saw the plaintiff on 23 March 1983 when the plaintiff said that his headaches had gone but that he was still experiencing pain in the right knee, particularly when weight-bearing. By this stage Dr Doumani noticed effusion in the right knee and sent the plaintiff off for physiotherapy.

3. By the time of his next examination in May 1983 Dr Doumani noted that the plaintiff was complaining of the return of headaches and that cold weather was affecting his back. However, in his evidence to the Court, Dr Doumani stated that the complaint in May 1983 about the effect of cold weather related to the knee. He was not cross-examined on this aspect. The next examination was on 10 October 1983 when Dr Doumani noted that the plaintiff was complaining of lower back pain as well as pain in the right knee. He then referred the plaintiff to Dr Calder, an orthopaedic surgeon.

4. As the case argued for the defendant depended to some extent on whether or not the plaintiff had lower back pain at a significantly early stage after the injury on 6 March 1983, it is necessary to say something about the plaintiff as a witness. He was born on 12 November 1938 and was educated to third year at high school. He followed a variety of semi-skilled occupations mainly as a storeman and cleaner over the years. He was garrulous but not really articulate whilst in the witness box and it was difficult to avoid the impression that he tended to exaggerate. He became confused during cross-examination. His evidence was, however, to a considerable extent supported by that of his wife whom I found a perfectly acceptable witness. On the whole I think that the plaintiff was doing his best to tell the truth, but on matters of detail he is not necessarily to be accepted and one must look at the other evidence.

5. I am satisfied that prior to the injury on 6 March 1983 the plaintiff had had long-standing problems with his back and chest. There was an incident in about 1974/75 when he "blacked out" with chest pain on a trip to Coffs Harbour. He took tablets for an angina condition for about six months afterwards. In 1980 and 1982 he was treated for chest pain and possibly blood pressure by his then practitioner, Dr Howe, although his wife recalled an incident of chest pain on one occasion only. That was presumably the Coffs Harbour incident.

6. The plaintiff himself said that he had trouble with his back from some time in the 1970s. He indicated that the areas of pain were in the middle of the spine and appreciably above the lumbo-sacral area. His evidence of the situation up until the injury was supported by that of the doctors. He complained to Dr Howe on 20 February 1980 of having had back problems for four years. The history he gave to Dr Newcombe to whom he was referred on 27 February 1980 was that in 1976 he developed severe back pain when lifting a whisky barrel, that the pain improved with physiotherapy but recurred in 1979 when unloading a truck. The pain settled after about two months but by the end of January 1980 had reasserted itself in the low back and lower limbs radiating into one or other of both of the legs. There was sensory loss in the sacral nerve root distribution to the feet. A lumbar radiculogram performed on 19 March 1980 showed lumbar disc herniation, apparently at the L5/S1 level with minor disc bulges at the L3/4 and L4/5 levels. An excision of the L5/S1 disc was carried out on 2 May 1980 and decompressive laminectomy was carried out in order to relieve lumbar spondylosis. After the operation the plaintiff was complaining to Dr Howe on 23 June 1980 of painful hips and tenderness along the spine. When seen by Dr Newcombe on 1 August 1980 the plaintiff's condition had improved to the extent that he was regarded as fit to return to work with restricted heavy lifting and bending.

7. In late 1980 the plaintiff recommenced work, and in fact took up the position which he occupied just before his injury in March 1983. He was working as a cleaner for a private organization concerned with the cleaning of the Russell offices. The plaintiff worked a daily broken shift of four hours in the morning and four hours at night. Despite the caution expressed by Dr Newcombe in June 1980, the plaintiff subjected himself to reasonably heavy work involving the use of an industrial polisher over four floors of an office building, emptying rubbish bins, vacuuming floors and the like. I accept the evidence of the plaintiff and of his wife that the plaintiff's back gave him insignificant trouble between the end of 1980 and March 1983. I also accept the evidence of Mrs. Ann Schwarzberg, the cleaning supervisor, that the plaintiff's work was predominently that of operating the polishing machine and that he normally carried out the other tasks only in the absence of one or other of the other cleaners. I further find that the plaintiff experienced no difficulty in his right knee until after the injury in March 1983. What Mrs. Schwarzberg described as a slight limp prior to the injury is, in my view, a mistaken observation of the plaintiff's gait, which was probably a little unusual because of his marked obesity.

8. In his first two visits to Dr Doumani following the injury in March 1983, the plaintiff made no complaint of back pain, although he did on the first occasion on 15 March complain of pain in the hips. In the light of all the evidence I accept the note made by Dr Doumani that in March 1983 the plaintiff was complaining that the cold weather was affecting his back (in contrast to his evidence that at that stage the plaintiff said that it was his knee that was affected). Dr Doumani's note is consistent with the evidence of Mrs. Pullin that the plaintiff was complaining of a sore back within weeks of the 1983 injury. Clearly by October 1983 the plaintiff was complaining to Dr Doumani of pain in the lower back radiating to the limbs. In February 1984 the plaintiff's complaints to Dr Calder (to whom he had been referred for the knee condition specifically) included complaints of pain in the lumbar area which was worse upon attempting gardening or vacuuming or lifting and which the plaintiff gave as the cause for not having worked for the previous twelve months. X-rays at that stage showed spondylosis throughout the lumbar spine. Dr Calder considered that there was a strain in the lumbar region and recommended the plaintiff to return to Dr Newcombe.

9. Dr Newcombe, however, did not see the plaintiff again until 25 July 1985. Dr Newcombe noted that the plaintiff had in the meantime been placed on an invalid pension on 6 September 1984. The description of the pain given to Dr Newcombe at that stage was that it fluctuated and was fairly diffuse but concentrated in the lumbo-sacral area. Dr Newcombe formed the view that the plaintiff aggravated his lumbar spondylosis by the injury in March 1983 which had caused him to be incapable of carrying out work of a heavy nature or such as that which he was carrying out immediately prior to the injury.

10. The defendant relied heavily upon the absence of complaint of pain to Dr Doumani for at least two months and, on the defendant's submission, probably for about seven months after the injury. The defendant relied further upon the lack of precision on the part of the plaintiff as to exact location of the lumbar pain. In fact the indication which the plaintiff gave in court was that the source of the pain was at about the L3/L4 level and it was suggested on the part of the defendant that if the March 1983 injury caused an aggravation of any pre-existing condition, then it would be expected to be felt at the S1 level where the disc excision and laminectomy had been performed in May 1980. Dr Newcombe answered this suggestion, however, by saying that the spondylitic condition was a general one and that pain was likely to be generalised or felt at different locations from time to time. I accept Dr Newcombe's opinion. Furthermore, it is reasonable to infer that immediately after the injury any pain felt in the lumbar area was overshadowed by the plaintiff's other injuries, particularly the knee injury. It is significant also, I think, that the plaintiff was complaining to Dr Doumani of pain around the hips above the buttocks and below the belt line extending to the sacro-illiac joint. Lastly, there is the evidence of the plaintiff, which although exaggerated I basically accept, that he had pain in the back in the bath on the night of injury and continuously since. In my view the onset of pain was sufficiently proximate in time to the injury and sufficiently precise in its location for me to be satisfied that on the probabilities the injury aggravated a pre-existing spondylitic condition which, although it had given some trouble in early years, had become virtually symptom free at the time of the 1983 injury. In view of the continuity of the symptoms since then I regard the plaintiff's present symptoms as far as the back is concerned as causally related to the 1983 injury. However, the damages must reflect the contingency that even without the injury the back may have given rise to symptoms at some subsequent period.

11. There was mention in the evidence of an injury to the plaintiff in 1981 in another motor vehicle accident, but in my view, this is of no practical importance for the purposes of the present case.

12. As far as the plaintiff's right knee is concerned, it is clear that it gave rise to pain immediately after injury, that effusion was noticed on the knee within a short time and by the time the plaintiff saw Dr Calder in February 1984 there was still tenderness of the knee and some fluid evident. Dr Calder performed an arthroscopy and chondroplasty of the right knee on 17 May 1984. Operative findings showed changes consistent with what was described as "wear and tear arthritis". It was also evident that articular cartilage had been damaged. This was attended to on operation. Although Dr Calder's reports do not expressly address the problem, I am quite satisfied that the import of those reports is that the damage to the patella which required operative treatment resulted from the injury of March 1983. As far as the "wear and tear arthritis" is concerned, I remain unconvinced on the balance of probabilities that that condition of arthritis was causally connected to the injury. However, even if the condition itself was not so causally related, I am satisfied that it was symptomless up until the time of the injury, and that it was the injury that rendered the knee painful. Whether the pain was due to the arthritis or to the cartilage damage I do not know, and it does not seem to me to matter. Dr Calder did not give evidence and his reports do not go beyond 13 November 1984 when the plaintiff was having "good days and bad days with his knee".

13. The plaintiff's complaints in evidence were that he has pain in both the right knee and the lower back. The pain in the right knee is of a throbbing type and is most troublesome when he is driving a car, standing for long periods or squatting. He says he uses a walking-stick. The plaintiff also says that his back gives him a similar sort of throbbing pain particularly when he is walking or sitting for long periods or standing on cold concrete. He had twelve months physiotherapy for the back which helped and he continues exercises for half an hour at a time. He has suffered from headaches from time to time. The combined effect of the back and knee is that he has difficulty gardening or washing the car and walking long distances. He received unemployment benefits from March 1983 until August 1984 when he went on to an invalid pension.

14. I think there is probably some exaggeration in what the plaintiff says about his symptoms, whether conscious or unconscious does not matter. The plaintiff himself recognizes that he could carry out work of a light nature but he says and I accept that he is not able to carry out a full-time cleaning job. His wife has purchased a dry-cleaning business and the plaintiff occasionally goes in to assist for two hours or so folding the clothes and the like. Significantly, I think, the plaintiff and his wife relinquished their invalid pensions when the family home was mortgaged to enable Mrs. Pullin to buy the dry-cleaning business in March 1985.

15. In short then I find that the injury to the spine and the right knee have resulted in permanent symptoms which contribute to the plaintiff's incapacity for work. However, that incapacity is not a total one, and the causes of the incapacity are not confined to the aftermath of the injury. Contributing to the plaintiff's condition of incapacity are his marked over-weight with tendency to swollen ankles, airways disease and angina and arthritis in the knee. Prior to the plaintiff's injury his average weekly earning were $470 net per fortnight or $235 per week. The present award rate without overtime and penalties is just under $240 per week. A Mr. Robert Arthur Dickson who occupies a similar position as the plaintiff occupied at the time of injury gave evidence that he receives a net wage of $606 per fortnight which includes overtime for work done on Saturdays. I think that the plaintiff has a residual capacity for work, although he has not been able to find employment to suit him. He could, however, if he was so motivated, play a more active part in his wife's business. He is still able to walk several kilometres on his own account, but he is slow in doing it. He is able to drive a car with the need for a rest after driving for an hour or so. I see no reason why he could not, for instance, assist in the collection of clothing to be cleaned or laundered from the various dry-cleaning agencies associated with his wife's business. I would assess his present loss of earning capacity due to injury at $150 net per week. I would award the plaintiff his full loss of wages for the first six months following the injury. At the rate of $235 per week this would yield $6,110. From then until the present time I would award $21,000 allowing for contingencies, making a total of $27,110 against which the defendant is to be credited for $13,000 which it is agreed the plaintiff has received by way of unemployment benefits. I would round out the figure for past loss of earning capacity to $14,000. As far as the future is concerned I accept Dr Newcombe's assessment that the plaintiff's general physical condition apart from the results of the injuries made it likely that he would not be able to work past the age of 55 in any event. I therefore assess future loss of earning capacity at $150 per week for seven years which on the 3% discount tables gives an amount of about $50,000. I would slightly reduce that figure for viscissitudes, mainly the possibility that the plaintiff's spinal and other conditions might have rendered him unfit for work without the subject injury during that period. I award $45,000 for future loss of earning capacity. For pain and suffering and loss of enjoyment of life I would award $18,000. I add the agreed out-of-pocket expenses of $1,793.70. Total damages so assessed are $78,793.70 which I think should be rounded out to $80,000 as a fitting global sum. I award interest on the past loss of earnings of $16,000 and on a component $10,000 of the award for past pain and suffering and loss of enjoyment of life. Interest is assessed at 14% per annum with the result reduced by half. That interest amounts to $5,950.00, and when added to the damages, gives a figure of $85,950.00. There will be judgment for that amount. I will hear the parties on costs.