Milovan Stojanovic v Commonwealth Accommodation and Catering Services Ltd [1986] ACTSC 7 (24 February 1986)

SUPREME COURT OF THE ACT

MILOVAN STOJANOVIC v. COMMONWEALTH ACCOMMODATION AND CATERING SERVICES LTD.
S.C. No. 144 of 1984
Negligence - Contributory Negligence - Damages

COURT

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

CATCHWORDS

Negligence - employer's liability - plaintiff fell whilst cleaning wet floor wearing worn down shoes supplied by employer - no question of principle.

Contributory Negligence - alleged failure of plaintiff to select shoes that were less worn - no question of principle.

Damages - personal injury - aggravation of pre-existing spinal condition associated with spondylolisthesis - credibility of plaintiff - no question of principle.

HEARING

CANBERRA
24:2:1986

ORDER

There will be judgment for the plaintiff in the sum of $32,061.90.

The defendant pay the plaintiff's costs.

DECISION

By writ of summons issued on 27 January 1984 the plaintiff sues for damages for personal injuries sustained whilst in the employ of the defendant at Brassey House, Barton. The date of injury alleged in the statement of claim was amended at the hearing to 19 November 1982. There is no issue that the plaintiff was injured on that date and in the way he alleges. He was employed as kitchen-hand and was in the process of cleaning the floor of the kitchen. He threw a bucket of water across the floor, and in the act of doing so slipped and fell on his buttocks and, to some degree, on his right side. Although negligence was denied on the pleadings, counsel for the defendant, during the course of the hearing, admitted negligence in terms of paragraphs (g), (h) and (i) of the Particulars of Negligence set out in the Statement of Claim. The particulars amounted to an allegation that the defendant failed to provide a reasonably safe place of work for the plaintiff in that the floor was made slippery by the presence of water, detergent, grease and similar substances. The defendant, however, persisted in its claim that the plaintiff was guilty of contributory negligence and relied upon certain matters that were raised in the course of the plaintiff's case. These were incorporated into an amendment to the particulars of contributory negligence, the amendment being:

"(c) Failing to draw to the defendant's

attention the fact that the boots
provided for his use were worn.

(d) Failing to select for wear boots which
were not worn."

2. The word "worn" in these particulars means "worn out" or "worn down".

3. The defendant called no evidence on this aspect of the case. There was evidence called on behalf of the plaintiff which established that prior to the plaintiff's injury complaints had been made on behalf of the employees working in the kitchen that the boots supplied for their wear by the defendant were unsuitable in that the tread on the soles was worn down. There were three pairs of boots available for the use of the men in the kitchen. On some days there were two men employed and on a Thursday three men were employed. The evidence does not satisfy me that any particular pair of the three boots was more suitable than any other for use on a slippery floor and I do not think it is of any assistance to the defendant to postulate that the employees had to compete amongst themselves as to who was to get the most suitable pair of boots on any particular day. I find that the defendant has not discharged the onus of showing that the plaintiff failed to take reasonable care for his own safety under either of the two particulars of contributory negligence alleged.

4. The real question in the case is that of damages and it is a substantial one. The case presented on behalf of the plaintiff, as I understand it, is that the injury aggravated a pre-existing condition in the plaintiff's back as a result of which he has been unable to work ever since in any sort of capacity. The exact nature of the condition is difficult to determine. It is suggested on the one hand that it is a condition of spondylolisthesis and on the other hand it is suggested that it is a condition of spondylosis, that is simply a degenerative spinal condition. The case for the defendant is that whilst there may have been a temporary aggravation of some such degenerative condition, the duration of the aggravation lasted not longer than some three months or so.

5. A great deal depends upon how far the plaintiff can be accepted as a witness of truth. That question does not permit of a simple answer. The plaintiff was born in Yugoslavia on 18 June 1932. He grew up in a rural environment and attended school for two years only between the ages of 8 and 10. He is barely literate in his native language Serbian and for practical purposes is illiterate in English. He is married with one adult son. He came to Australia in 1972 and until the time of his injury worked as a kitchen-hand in various establishments in Canberra. Apart from some matters to which I shall shortly refer, he was an able-bodied worker. He has no particular employment skills.

6. The plaintiff was not an impressive witness. I come to that conclusion mindful of the many difficulties placed in the way of the plaintiff presenting his case. He spoke through an interpreter in Serbian. It is not easy to assess the demeanour of a witness who gives evidence through an interpreter, but an assessment must nevertheless be made. The plaintiff was belligerent and argumentative in his manner. He displayed a sense of exasperation with some of the questions that were put to him and on occasions gave answers which were sarcastic not only in tone but in content. I am aware that those factors alone do not necessarily lead to a conclusion that a witness is untruthful. However, on some occasions, in my view, the plaintiff was deliberately evasive. When he became excited, and when he demonstrated his actions immediately prior to his injury, one observed a mobility which was starkly in contrast with the careful and measured movements with which he entered and left the witness box on the several occasions when medical witnesses were interposed. The evidence he gave has to be measured in the light of these observations and the rest of the evidence in the case.

7. It might also be mentioned that some of the doctors remarked on the difficulty encountered in examining the plaintiff and in particular obtaining an accurate history and an account of his complaints because of the language barrier. These doctors included Dr Gavranic, his treating doctor, who spoke to him in Croatian which is a language akin to but not identical to Serbian.

8. The plaintiff's evidence-in-chief was to the effect that prior to his injury on 19 November 1982 he had never had any trouble with his back of the nature experienced immediately after and ever since the accident. He said that he had had trouble in the back on isolated occasions but that was pain that was demonstrated by him to be situated between the shoulder blades and about half way between the waist and the shoulders. On the other hand, in contrast he demonstrated the pain after injury as being centrally located about one and a half to two inches above the belt line. The plaintiff's evidence-in-chief was that he felt "some stabbing there" but he "simply did not have any pain in the spine". He had some trouble arising from the painting of refrigerators when he was working at the Canberra Rex Hotel which caused him to go off work for some two and a half to three weeks but which resolved itself thereafter. In 1980 he had pain in the neck for about a month and a half for which he received therapy. In 1982 he went to see Dr Gavranic some time prior to his injury and was referred to another specialist who prescribed medication. At that stage, so he said, he lost a week from work, but by the time of the injury he said that he was working without difficulty carrying heavy containers of milk and food.

9. Dr Gavranic's evidence conflicted with that of the plaintiff on the question of the plaintiff's pre-injury condition. Dr Gavranic treated the plaintiff over a period of years. The complaints of a low back pain commenced in 1972 with increasing severity thereafter. In 1982 the plaintiff was referred to Dr Gavaghan, a physician, who reported to the general practitioner that the plaintiff was suffering from extensive osteo-arthritis of the spine, spondylolisthesis at the lumbo-sacral junction and possible ankylosing spondylitis of the spine. The complaints to Dr Gavranic were of pain in the lower back in general extending down into the right buttock area. There was no complaint of pain in the upper part of the back as the plaintiff had maintained in his evidence-in-chief. The plaintiff saw Dr Gavranic on four occasions between 10 August 1982 and 15 October 1982 complaining of pain in the lower back. When Dr Gavranic examined the plaintiff for the first time after the injury, which examination was on 22 November 1982, the plaintiff had limitation of extension and flexion of the lumbar spine and evinced pain on most movements. Dr Gavranic referred the plaintiff at that stage to Dr Brook, a rheumatologist. The plaintiff was unhappy about the treatment and the views of Dr Brook and sought to be referred for an orthopaedic opinion. Dr Gavranic tried to arrange for an appointment with Dr Stubbs, but in fact the plaintiff's solicitors arranged for him to be seen by Dr Alastair Robson. By that stage the plaintiff had been appraised of the views expressed by Dr Gavaghan, and possibly by Dr Brook, and shared by Dr Gavranic, that his post-accident condition was an aggravation of his pre-existing condition. According to Dr Gavranic the plaintiff adhered to the view that he had fractured his spine and made it clear to Dr Gavranic that he did not want any doctor to whom he might subsequently be referred to know of his condition prior to the injury. Neither the plaintiff nor Dr Gavranic were cross-examined on this aspect of the case and I treat it with caution. The evidence of Dr Robson, however, puts it beyond question, that for whatever reason, the plaintiff failed to acquaint him with the fact that he had had previous trouble with his back.

10. Dr Robson first saw the plaintiff on 6 June 1983. It is significant however, that prior to then and so it would appear in about April 1983, the plaintiff had come under the care of Dr Bannister, an orthopaedic specialist in Sydney and had been admitted to hospital, probably Sydney Hospital in Macquarie Street, for the purpose of a manipulation and later for a discogram. The plaintiff received advice that he should submit to operative treatment of his lower spine. Neither Dr Bannister nor Dr Brook were called to give evidence. There was no attempt to tender a report by either doctor and there was no explanation for the absence of evidence or report.

11. The plaintiff told Dr Robson initially that he had had only two weeks away from his work in the last eleven years and in response to repeated questions about previous pain in the back, the plaintiff stated that he had not had such pain, except for the occasion whilst working at the Canberra Rex Hotel as previously mentioned. The plaintiff specifically denied to Dr Robson that he had any time off in 1982 except for two weeks with influenza. Dr Robson viewed x-rays which showed spondylosisthesis at L5-S1 level. The findings at that stage were that the plaintiff's complaints of low back pain and restriction of movement together with the x-ray findings were consistent with spondylolisthesis with minimal slipping at L5-S1 level which was associated with degenerative disc trouble at about that level. The plaintiff's fall gave rise to symptoms in what Dr Robson had been given to understand was a previously pain free back. Dr Robson's tentative advice at that stage was that a spinal fusion should be considered, but before a final decision was made, the plaintiff should submit to a discogram in order to determine whether there was significant degeneration at a higher level. If there was such degeneration the likelihood of improvement after operation would be decreased. The end result was that Dr Robson received a message that the plaintiff did not wish to proceed further either with the discogram or the operation.

12. As the evidence of Dr Robson indicated, and it was undisputed, spondylolisthesis involves a slipping of one vertebra against the other at the lumbo-sacral junction and is congenital in origin. This malalignment of the spine contributes to the general degenerative condition called spondylosis. Whilst it is possible for a person with a condition of spondylolisthesis in the back to go through life without symptoms, it is possible for such symptoms to be triggered off by some traumatic incident. On the other hand, in the case of the plaintiff, the question turned on whether or not the plaintiff had had repeated pain in the lower back prior to the trauma. If the history was as outlined by Dr Gavranic, then what had happened was that the plaintiff had in his fall simply aggravated that condition and when the consequences of the aggravation ceased to operate, he was then likely to have returned to the condition that his back was in at the time of his injury, or at least to the condition that would have developed if the trauma had not occurred. As Dr Robson said in his evidence, a determination of whether the post-injury symptoms have in fact continued to the degree complained of by the plaintiff depends on a "value judgment", an assessment of the plaintiff as a truthful person.

13. On 18 August 1983 the plaintiff was referred to Dr Chandran, a neuro-surgeon, apparently by his solicitors. That occurred at about the same time as the plaintiff declined further treatment by Dr Robson. In fact Dr Chandran had previously treated the plaintiff for an injury sustained on 4 December 1981 in a motor vehicle accident when he suffered for a period of some two weeks or so from neck pain, headaches and dizziness. He had been prescribed anti-inflammatory drugs and also a course of anti-depressant medication. At the initial consultation there was a full range of neck movements with no tenderness and no neurological deficits. Although, as at 18 August 1983, Dr Chandran concentrated on the possible continuing effects of the neck injury, he could find no neurological deficits in the lower limbs. There was some limitation on straight leg raising with mild tenderness at the lumbo-sacral junction and at the right sacro-iliac region. The plaintiff was unable to participate in the testing of spinal movement because of his complaints of pain. Dr Chandran did not see the plaintiff again until 13 November 1985. Dr Chandran did not give evidence but his reports show that he was essentially in agreement with Dr Robson. Dr Chandran did, however, go on to add in his later report that as at November 1985 the plaintiff was possibly suffering from genuine pain upon heavy physical activity. Like Dr Robson, he felt that the plaintiff might improve upon surgical fusion but that should not be attempted unless the plaintiff would submit to a discogram.

14. From about mid-1983 until the present time the plaintiff has continued to be treated by Dr Gavranic. His condition "waxes and wanes". Dr Gavranic continues to prescribe moderate pain-relief medication. On the whole the plaintiff sought treatment more frequently in the first year or two after the injury, but there was an occasion when he was referred to the Woden Valley Hospital casualty section because of a particular exacerbation of pain. He came under the care of Dr Lithgow who is in charge of a special pain clinic at the hospital. However, Dr Lithgow was not called and there was no documentary material either from him or from the hospital. It seems however that the plaintiff did receive some treatment at the Woden Valley Hospital in about January to April 1984 which involved hydrotherapy. In any event that treatment had no significant impact upon the plaintiff's condition.

15. In addition to the evidence of doctors who were concerned to treat the plaintiff or to consider his treatment, there was also some evidence from doctors who had been retained especially to give evidence in the case. Dr Corry, a specialist in rehabilitative medicine, gave evidence on behalf of the plaintiff. Dr Stubbs, an orthopaedic surgeon, and the doctor to whom Dr Gavranic originally sought to refer the plaintiff, gave evidence on behalf of the defendant. Dr Corry's view as expressed in his report was that the most likely cause of the plaintiff's condition was that he suffered from a degenerative spondylosis of the lower lumbar region which was asymptomatic until his fall, when some lumbar disc protrusion with possible sciatic nerve root irritation was precipitated on the right side. According to Dr Corry that would be consistent with the pain symptoms and limitations in activity tolerances which were described to him by the plaintiff. When he gave evidence however, Dr Corry was given the opportunity to view the x-rays and agreed that they disclosed a spondylolisthesis, a condition which he had not anticipated. On that basis Dr Corry agreed that it was a spondylolisthesis related condition rather than a naturally progressing spondylosis that had immediately pre-existed the injury. He also agreed that if one accepted that the plaintiff had made several visits to his doctor complaining of lower back pain in the four months or so prior to injury and that the back pain continued to "wax and wane" in recent times much as it had prior to injury, then it was likely that the effects of the injury had passed. Dr Corry's view as a rehabilitative medicine specialist was that if the plaintiff's present complaints were genuine then, whatever their origin, he was, for practical purposes, unemployable.

16. Dr Stubbs saw the plaintiff on 12 September 1984 and 9 October 1985. The complaints to Dr Stubbs on the initial occasion summarise the plaintiff's present condition:

"Mr. Stojanovic complains of pain all day every
day. It is lumbo-sacral pain that spreads into
his right leg into the back of the foot, the
pain in the leg is not constant but is made
worse by walking, bending or lifting but the
pain in the back is. This pain has so disabled
him that he has been unable to work at all, and
his activities about his house are very
restrictive. He says he is able to water the
lawn but does not do any other gardening or home
maintenance, nor does he do any work inside the
house. He has no hobbies or other interests."

17. Dr Stubbs found the plaintiff unco-operative in relation to testing for restriction of movement, and that the plaintiff's movement pattern was variable and greater when he was distracted. There was inconsistency between straight leg raising and range of movement of the knees whilst sitting. Dr Stubbs' view was that the spondylolisthesis was not the source of the plaintiff's pain because as a general rule such a condition produced pain in the patient prior to the age of 30 years or so and such pain had been absent in the plaintiff. Dr Stubbs thought that whatever pain or disability existed was due to the general condition of spondylosis and that had been aggravated by the fall but for no more than about three months or so.

18. When Dr Stubbs examined the plaintiff again on 9 October 1985 there was little change except that on this occasion the plaintiff was more dramatic in his presentation than previously. Dr Stubbs expressed the view that the plaintiff was grossly exaggerating and malingering. Whilst it is no doubt proper for a doctor to express such a view, it is of restricted value only to a tribunal of fact in a court of law, because the question depends ultimately on whether or not the person concerned is accepted by the tribunal as truthful. The court has before it an abundance of material which is different from that available to the doctor and the court must make its own assessment of the plaintiff as a witness of truth.

19. It is difficult not to be somewhat sympathetic towards the plaintiff. There is no question that he had an injury and that for some time at least after that injury he had a painful back and a back that was more painful than it had been prior to the injury. It is impossible to get over the fact however that he misled the doctors and deliberately misled them about his prior back condition. It is also impossible to avoid the conclusion that he was less than frank with the Court on this subject. I am also convinced that he has consciously exaggerated in Court the extent of his pain and disability. I am of the view, doing the best I can on the evidence and limited by my view of the plaintiff's credibility, that he is at present unable to carry out work involving bending or lifting and this makes him incapable of his previous work as a kitchen-hand. Because of his limited background there are very few tasks which he would be able to carry out in full-time paid employment. There is no question that the plaintiff suffered an injury for which the defendant is responsible and ultimately the question is to what extent the injury is responsible for his ensuing condition. I think that at the present time the plaintiff's symptomology has a three-fold dimension. Firstly, there is a degree of organically based pain. Secondly, there is an exacerbation of that organically based pain by psychogenic factors, that is to say by the plaintiff's perception that he is worse off from a medical point of view than he is in fact. He is a desperate man fearing for his future and that, in my view, probably makes him particularly susceptible to a condition that would give rise to less pain and disability in a person in happier circumstances. Thirdly, as I have said, I think there is a degree to which he has consciously exaggerated the extent of pain. It is extremely difficult to arrive at any conclusion with any confidence about the extent to which the injury contributed to the organically based pain. I prefer the view of Dr Robson and Dr Chandran that the exact nature of the organic basis lies in the spondylolisthesis rather than the spondylosis, but in either event it was the aggravation of a pre-existing condition. The defendant is liable for the aggravation whatever the pre-existing condition might have been. However in rejecting Dr Stubbs' view that the pre-existing condition was one of spondylosis, I also reject the view that the aggravation was limited to a period of three months. In my view it lasted at least until the time the plaintiff was seen by Dr Chandran in August 1983 and in all the circumstances I think it reasonable to conclude that it continued until some time early in 1984 when the plaintiff seems to have taken a turn for the worse. I am not satisfied that that turn for the worse should be ascribed to the injury in November 1982.

20. There is one further matter that merits consideration. I have found that the defendant cannot be held responsible for any organically based pain or disability beyond early 1984. It follows that the defendant cannot be held responsible for any particular susceptibility to such pain or any psychogenically based exacerbation of that pain since that date. There has never been any suggestion in the plaintiff's case that he is suffering from what is sometimes called functional over-lay, litigation neurosis and the like and there was no evidence of a psychiatric nature. Nevertheless, the plaintiff's enjoyment of life has been diminished by the resentment he feels for the condition which he believes his injury has brought about. Insofar as it diminishes his enjoyment of life, that feeling of resentment is a loss and it is a loss which would not have occurred but for the defendant's doing. It is therefore, in my view, an item to be taken into account in the assessment of damages. It is not an item which can be reflected in any assessment of loss of earning capacity on a periodic basis.

21. My findings then in summary are as follows. The plaintiff sustained an injury on 19 November 1982 as a result of which he sustained an aggravation of a pre-existing and symptomless condition of spondylolisthesis associated with general degeneration in the lower back. This aggravated condition rendered him totally unemployable for a period which I fix at one year and three months after the injury. During that time he sustained initial constant pain in the lower back diminishing over a period of time in frequency and intensity. That condition of pain was associated with restriction of movement in the back and right leg which curtailed his activities around the home in his daily life. Since about January 1984 the plaintiff has continued to suffer a certain amount of pain in the lower back but this is due to the pre-existing condition and the defendant is not responsible since then for anything other than the sense of grievance which the plaintiff feels and may continue to feel for some time, particularly if he feels that the award of damages which he is about to receive is inadequate. The defendant, however, cannot be held responsible for the plaintiff's dissatisfaction with the outcome of his case.

22. It should be noted that I am not convinced that the plaintiff has unreasonably refused to submit to proper medical treatment. It is not possible until a discogram has been performed to determine whether or not the proposed lumbar fusion would be likely to effect any significant improvement. The plaintiff has indeed declined to submit to the discogram proposed by Dr Robson, and if Dr Chandran is regarded as the treating doctor, it appears that he has also declined to submit to the discogram proposed by that doctor, but the plaintiff did submit to a discogram by Dr Bannister not long after his injury. Although it appears that Dr Bannister advised surgical fusion, the reasons for his advice were not in evidence nor were the results of the discogram. In this respect the onus is on the defendant to show that the plaintiff has not taken reasonable steps to mitigate his loss; the defendant has not discharged that onus.

23. The plaintiff's past economic loss is to be calculated at an agreed amount of $198.28 per week. I allow $13,000 under this head of damages. Tax paid by the plaintiff on workers compensation is agreed at $2,063.40. Out-of-pocket expenses are agreed at $4,998.50. Damages for pain and suffering and loss of enjoyment of life I assess at $12,000. That makes a total of $32,061.90. On reflection that appears to me to be a proper sum looked at from a global point of view.

24. There will be judgment for that sum together with costs.