Giuseppe Celestino v Rocco Celestino [1987] ACTSC 20 (25 March 1987)

SUPREME COURT OF THE ACT

GIUSEPPE CELESTINO v. ROCCO CELESTINO
S.C. No. 1300 of 1981
Assessment of Damages

COURT

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

CATCHWORDS

Assessment of damages - no new question of principle involved.

HEARING

CANBERRA
25:3:1987

ORDER

There be judgment for the plaintiff in the sum of $15,117.40.

DECISION

This is an assessment of damages in respect of injuries sustained by the plaintiff when the vehicle in which he was a passenger then being driven by his brother Rocco (the defendant) overturned on the Federal Highway near Lake George on 1 May 1980. Liability is not now in issue.

2. The plaintiff was born in Italy on 18 August 1936 and received what appears to have been a minimal education. In 1956, aged 19, he emigrated to Australia. On arrival he began to work as an excavator operator. For the next 14 or 15 years he worked for two companies and then, in 1970, with his brothers Antonio and Vincent, formed a company which engaged in excavation and drainage work laying pipes of all sizes. Following a difference in 1975 Vincent Celestino seems to have left the company and subsequently the plaintiff and his brothers Antonio and Rocco formed a new company (the company).

3. The company employed only the three brothers. At the time of the accident all three brothers were in the vehicle. The plaintiff was in the middle and his brother Antonio was on his left. They were travelling to Goulburn to do some work there. They were carrying at least 20 PVC sewer pipes and approximately 20 more 90 millimetre stormwater pipes and a few boxes of fittings, elbows, bends and the like. These pipes and fittings seem to have been damaged in the accident so that there would appear to have been little point in continuing on to Goulburn. The vehicle, although damaged, was still capable of being driven and the party returned to Canberra without notifying the police at that stage.

4. The plaintiff gave evidence that when he arrived back in Canberra he felt shaky and really bad. He said that he started to get a stiff neck, back, leg and arm. He consulted a doctor. He could not remember whether he had attended on the doctor that night or the next day but was sure that it was late the night of the first day or second day. Asked whom he had consulted he said he thought that he had first consulted his own family doctor but because it was at night he had been sent to a doctor conducting a locum service at O'Connor. Exhibit 3 indicates that he consulted a doctor at that service after hours on the evening of 3 May 1980. He could not remember the name of the doctor (it was Dr W. Wardman) who apparently prescribed some medication for him.

5. He first consulted his family doctor, Dr Peter Main, on 8 May 1980. He then had symptoms of stiffness and pain and limitation of movement of the neck. Dr Main considered his history and clinical findings consistent with a cervical sprain probably suffered at the time of the accident. His report of 17 June 1980 showed that the pain in the neck was persisting on 15 May 1980 when the plaintiff was referred to Dr Newcombe, a neurosurgeon.

6. The plaintiff said that he tried to go back to work but did lose work in fact. He could not tell whether he was off for four months or 10, 11 or 12 months. He said that Dr Newcombe had advised him to change to a different job because he had to have an operation. He replied that he could not get any other job because he knew only the work of a drainer.

7. He said that the company lent him between $5,000 and $7,000 to tide him over his difficulty through not being able to work. He had not repaid that sum. After he recommenced work he was able to drive the backhoe and do a lot of things but was unable to use the compressor for more than half a day, perhaps for as little as a couple of hours, before he got pain. Following such pain he would stay home lying on his back on the floor. He presented a picture of one who was able to work most of the time but would have to take three or four days a month off work, sometimes more, sometimes less. He continued, he said, to get full wages from the company. Eventually he agreed that he was doing the same work when he gave evidence as he had before the accident.

8. He described himself as not really the same person as far as work was concerned, as one not one hundred per cent all right because he had to push himself with tablets and things and had to have an operation on his neck. Towards the end of 1984 he had some exploratory surgery in Sydney and subsequently had a non-malignant growth in the colon removed in Canberra. As a result he was off work for approximately two months. He said that that surgery affected his capacity to work but the principal thing that troubled him was the condition of his neck.

9. He said that after work, if he were very sore, he did not sleep well. He was unable to play with his children. He described himself as being a normal worker before the accident, one who was a little bit tired after a day's work but who would have recovered by morning so as to be able to do his normal work.

10. Dr Main, in his report made following a review on 9 July 1984, stated that after an initial prolonged disability the plaintiff was able to return to work approximately five months after the injury. He had been able to cope since then with varying periods of time off during episodes of increased pain. Discography eventually performed due to persistence of pain revealed a damaged C4-5 disc. On 9 July 1984 he found the plaintiff to be suffering from some residual restriction of flexion and extension with associated pain. He described this as consistent entirely with fair recovery but with ongoing episodes of pain and disability. In summary he considered that the plaintiff had suffered a disc lesion and associated cervical sprain in the accident of 1 May 1980, that his recovery had been partial to date and that he might in the future require surgery if his symptoms deteriorated. He considered that he suffered from intermittent partial disablement with which he could cope because he was self employed and that this disability would continue. He considered him to have been at all times a genuine and consistent historian with demonstrable physical signs consistent with the degree of injury to his neck.

11. Giving evidence, Dr Main told of an initial visit by the plaintiff, which must, according to his first report, have taken place on 8 May 1980, and of a second visit on 15 May 1980 when the plaintiff was still complaining of pain around the neck, headaches and pain in the chest. The plaintiff saw him again on 17 August 1980 when he had been using a cervical collar. Dr Main's wife, also a doctor, had seen the plaintiff on 9 August 1980. He was seen subsequently on 29 August 1980 when he had cervical spine x-rays repeated and again on 10 September 1980 with similar symptoms. This time he complained of some low back pain. He consulted Dr Brown, a doctor who works with the two Drs Main, about the same problem on what must have been 14 October 1980. He next sought assistance on 5 April 1981. That consultation was not specifically related to the neck symptoms but Dr Main considered it had to do with anxiety. He was seen again on 6 July 1981, 27 August 1981 and on 26 September 1981.

12. He appears not to have seen Dr Main again until May 1984 and to have seen him again on 9 July 1984 and 9 September 1984. Dr Main identified two certificates which certified that the plaintiff was unable to work from 18 August 1980 to 18 September 1980 and from 14 October 1980 to 14 November 1980. When consulted on 14 October 1980, Dr Brown had noted that the plaintiff had been back at work for two weeks but symptoms had reappeared. It was then that she certified him to be unfit for work from 14 October 1980 to 14 November 1980.

13. Dr Main was cross-examined as to an attendance by the plaintiff upon a neurologist, Dr Gytis Danta, in 1978. It was suggested to him that the headaches which he treated, apparently in conjunction with the cervical spine problems, might have been due to the earlier condition which had been investigated by Dr Danta. He was unable to agree with that, taking the view that it indicated that the plaintiff was a person prone to get headaches in circumstances of stress and tension.

14. In about 1973 the plaintiff had consulted a Dr Finley on a number of occasions concerning low back problems and had been hospitalised as a result.

15. Dr Newcombe saw the plaintiff on 5 June 1980. He received a history of the accident and that two days after it the plaintiff had developed neck pain and headache and bad cramps in the right shoulder. He was off work for four weeks and still had pain even though he had returned to work. As well he had bifrontal headaches. Dr Newcombe found limitation of lateral flexion of the neck but no other signs. X-rays taken at the time were within normal limits. Dr Newcombe agreed with Dr Main that the plaintiff had had a whiplash injury of the neck or cervical sprain with no evidence of nerve root involvement. He considered that the condition would settle with conservative treatment.

16. Reporting to Dr Main on 30 July 1980 he said:-

"(The plaintiff) continues to have frontal

headache as well as posterior cervical pain
and is unable to work as a drainer at
present. . . . Neck movements are a little
restricted by pain and there is some
crepitus. While the initial x-rays showed no
abnormality we cannot exclude a degree of
disc damage at this stage. I have arranged
for him to wear a collar and will review him
again in September."

17. Reporting on 11 August 1982 Dr Newcombe said that the plaintiff, when reviewed on 21 May 1982, continued to have neck pain following his injury. A cervical discogram (obviously that referred to by Dr Main) showed a C4-5 intervertebral disc disruption with contrast passing on injection into the spinal canal. Neck pain was reproduced on injection. C5-6 and C6-7 discs were normal. The plaintiff continued to work and felt he could manage at the moment. Consideration of surgery was therefore deferred although Dr Newcombe thought it likely that the plaintiff would require disc excision and anterior interbody fusion at the C4-5 level. Reporting on 19 July 1984, Dr Newcombe advised that the plaintiff continued to complain of some neck pain with occipital headache from time to time especially in cold weather but was in general able to manage to remain employed despite continuing pain. His general condition was stable and further medical treatment at the time was not envisaged although, in the long term, in another decade or so, Dr Newcombe considered that the plaintiff could require C4-5 disc surgery as previously envisaged.

18. Giving evidence, Dr Newcombe confirmed the prognosis made in his report of 19 July 1984. He gave the cost of the expected surgery as about $2,880 and said that after discharge from hospital the plaintiff would require about six weeks convalescence. Thereafter he expected the plaintiff would be able to carry out the employment in which he is presently engaged. He thought that it would be difficult for the plaintiff to continue to the age of 65. Such a contingency was likely in any event having regard to the nature of the occupation but he thought that the effects of the injury might curtail his employment and lead to early retirement, perhaps by as much as two or three years, maybe as much as five.

19. In cross-examination Dr Newcombe said, when questioned as to the relationship between bi-frontal headaches and the presentation of problems in the cervical spine, that there was an element of muscle tension as a contribution to the pain and that head pain from injured cervical discs usually involves both the occipital and the frontal areas. Earlier the headaches were described as frontal. More recently, in 1984, the plaintiff had presented with occipital headache. The pain had been more localised at the back of the neck than the back of the head when Dr Newcombe had last seen him in 1982.

20. The discogram carried out in 1982 showed a condition, he said, that may have been due to trauma occasioned in the accident in May 1980. He said:-

"Whether or not trauma is an antecedent is
the question. It may or may not be."

21. He said that when the plaintiff saw him on 2 September 1980 he did not indicate that he was working and on 27 January 1981 he told him that he had tried to work but without success. He had no note that the plaintiff was actually working until he stated on 6 July 1982 that he was. As Dr Newcombe said in his report of 11 August 1982:-

"He (was) continuing to work and feels he can
manage at the moment."

22. He was then advised that before the accident in 1980 the plaintiff had been experiencing bi-frontal headaches and nausea, as to which I am satisfied, and was asked the following:-

"The conclusion that he complains of frontal
headaches and bi-frontal headaches after the
accident may not necessarily be linked to the
cervical problem if any, would that be
correct?"

He replied "It may not be."

The next question was:-

"It probably is not, having regard to that
history?"

He replied "Yes".

23. He was then shown a segment of film. The showing was prefaced by a statement by counsel for the defendant that observations of the plaintiff had begun on 22 October 1982 and there had been movie film and a video film taken on various occasions since then. Counsel indicated that there was nothing which might be detrimental to the defendant (sic) in any other film save that which showed the plaintiff working on 1 February 1985.

24. Having seen the film, Dr Newcombe agreed that during the course of the activities filmed the plaintiff showed no signs of restriction of movement or indications of pain on movement to extremes. This was in contrast with his findings on his last review of the plaintiff when he had found neck movements restricted and elicited complaints of pain if the plaintiff attempted to move to extremes in flexion, rotation or extension. Again agreeing that the plaintiff had in the film given absolutely no indication of restriction at all and that on a large number of occasions he rotated his neck to extremes with no discernible sign of restriction or indication of discomfort, he said that he took the view that this indicated that the plaintiff did not need surgery at the time. He was then asked whether, having regard to the freedom of movement demonstrated on the film, the plaintiff would come to surgery at all. He replied that on the balance of probability he did not now think that he would. In saying this he bore in mind the age of the plaintiff.

25. My own view of the film was that the plaintiff appeared to be perfectly all right and busily engaged in work without any signs of pain or restriction of movement. I formed the view on all the evidence that whatever disablement had been attendant upon the accident of 1 May 1980 had resolved following conservative treatment and I could not be satisfied that the cervical disc lesion detected in 1982 was productive of symptoms or was, indeed, due to the accident in May 1980.

26. Nevertheless, I am satisfied that the plaintiff did sustain a temporarily disabling injury in the accident of 1 May 1980. The difficulty is to ascertain on the evidence the effect of that injury on his capacity to work and the amount of pain and suffering and loss of amenities of life it caused him.

27. The plaintiff claimed by his particulars that he was off work from 24 April 1980 to 2 February 1981 and periodically since that date, about two or three days per month.

28. I am satisfied that the earlier date is incorrect. It has never been suggested that the accident took place other than on 1 May 1980. The only evidence which tends fully to support the claim of absence from work for that period to 2 February 1981 is a copy of a group certificate attached to the plaintiff's copy of his income tax return for the year ended 30 June 1981. According to that certificate the plaintiff earned $4,160 (exactly $80 per week for a 52 week year) for the period 2 February 1981 to 30 June 1981 and had deducted therefrom tax instalments totalling $210. A copy of the tax return filed on behalf of the plaintiff's brother Antonio for the same year had annexed to it a copy group certificate which sets out that Antonio Celestino, who is also said to have been injured in the accident, worked from 2 February 1981 to 30 June 1981, earned $4,160 and had deducted therefrom the sum of $210 for tax. Each of the copy returns had annexed to it a note which said:-

"Taxpayer did not work for the whole year as
he was injured in a car accident and was
unable to work."

The coincidence seems to me to be remarkable.

29. I am prepared to accept that, as indicated in Dr Newcombe's report of 11 June 1980, the plaintiff had had approximately four weeks off work although he seems to have returned to work by 5 June 1980. Dr Newcombe reported on 30 July 1980, having seen him on 22 July 1980, that the plaintiff was unable to work as a drainer at that time. He arranged for the plaintiff to wear a collar and said he would review him again in September. He took the view that the plaintiff would be unable to work until 18 August 1980. He appeared not to have been working when Dr Newcombe saw him again on 2 September 1980. As indicated above he had a certificate to say that he was unable to work from 18 August 1980 to 18 September 1980. Next he had a certificate, again as indicated above, saying that he was unable to work from 14 October 1980 to 14 November 1980. Some significance must no doubt be attached to the fact that, on 22 July 1980, Dr Newcombe detected some crepitus.

30. In cross-examination the plaintiff agreed, as I understood him, that after the injury he went back to where the company was working, looking around and doing that type of thing. He was asked whether, throughout 1980, he would go out to where the work was and look around and do some work on some days. He said that he tried to work to see whether he could improve. He agreed that occasionally he dug a little with a shovel. He said that Dr Newcombe encouraged him to try to work. He said, however, "I did not work full time".

31. The evidence is confusing. The plaintiff was in some respects an unsatisfactory witness because of claimed lack of memory. His wife, too, was an unsatisfactory witness. However, medical examinations at about the time of and for some time after the accident showed, I think, that the plaintiff was incapacitated. Because he was able to work at least to some extent he cannot be taken during the period immediately after the accident to have been totally incapacitated. I note that when he consulted Dr Brown on 14 October 1980 he seems to have been back at work for two weeks. I note also that he received $600 holiday pay in December 1980. I think the proper approach on all the evidence is to find that he suffered incapacity to a degree from 5 May 1980 to 14 November 1980. It is not suggested that there were any certificates given by his medical advisers in respect of periods after 14 November 1980 and had they in fact been given I would have expected evidence to have been led about them. I think that thereafter the plaintiff suffered for a time from pain in the cervical spine and that occasionally he was off work as a result but I am not satisfied that his disability continues. He is, I am satisfied, now able to work as well as he could before, subject only to the ordinary ravages of time since the accident, bearing in mind that he is now 50. He gave evidence that at the time of the hearing he was earning about $350 per week net.

32. A document which indicated that he had received some form of social security benefit from 2 July 1982 to 10 October 1982 was tendered. Nothing in the plaintiff's evidence or the medical evidence supported the view that the plaintiff had been absent from work during that period. I find the document unhelpful.

33. In quantifying his damages I note first that he appears to have borrowed from the company sums of money in the years before that ended 30 June 1980. The company's books show that for the year ended 30 June 1978 the company loaned him $3,392.05, while it loaned his brother Antonio $3,272.84 and his brother Rocco $4,033.64. In the year ended 30 June 1979 he is shown as having borrowed $8,300 from the company while Antonio borrowed $2,500 and Rocco $1,871.20. In the year ended 30 June 1980 he borrowed $700, Antonio $1,600 and Rocco $2,700. In the year ended 30 June 1981 he and Antonio borrowed the sum of $5,000 each while Rocco borrowed $600. He borrowed nothing in the year ended 30 June 1982 while his brothers borrowed each less than $500. In the year ended 30 June 1983 he borrowed $3,400 as did Rocco, while Antonio borrowed $2,735. In the year ended 30 June 1984 he borrowed $1,698.09, Rocco borrowed $3,859.04 while Antonio borrowed $4,807.93.

34. In my opinion, therefore, no particular significance can be attached to the loan from the company to the plaintiff. However, I note that according to the company's cash book the weekly wage bill was reduced from $650 plus the appropriate deduction for group tax to $250 plus such a deduction for the week ended 16 May 1980. The cash book shows that sort of reduction continuing until 6 March 1981. I am not satisfied on all the evidence that the books show accurately what the true situation regarding payment of wages to the plaintiff was. I think on all the evidence I should proceed on the basis that for almost the entire period from 1 May 1980 to 14 November 1980 he lost a weekly wage of the order of $217 per week net. Against this there is to be offset the value of his attendance at the job on various occasions. I am satisfied that he did this. It is difficult to quantify the value of that work but I note that there was a steady progression in the company's receipts for the years ended 30 June 1979, 30 June 1980, 30 June 1981 and 30 June 1982 when the total receipts for the year were respectively $72,271.06, $86,118.47, $95,833.17 and $208,179.64. There was a drop to $179,337.97 for the year ended 30 June 1983, a large increase to $270,614.43 for the year ended 30 June 1984 and a very big increase to $525,361.38 for the period from 1 July 1984 to 12 April 1984(?5).

35. Those figures indicate that the three man company has got along very well with the plaintiff's contribution since the accident. Doing the best I can, I think the appropriate way to deal with his loss of earning capacity immediately after the accident is to quantify it on the basis that he lost a net $217 per week for 28 weeks to 14 November 1980 and set off against that amount one third as evidencing his residual capacity during that period. The adjusted amount totals $4,050.

36. While I am satisfied that the plaintiff was able to work and could have received full wages thereafter, I am also satisfied that for at least some of the time he suffered from continuing neck pain. Although in ordinary circumstances this might well have incapacitated him to a degree so that he would have lost the wages he might otherwise have earned, in fact he lost, as I am satisfied, none from at least 2 February 1981 onwards.

37. Doing the best I can in respect of general damages for pain and suffering and any loss of earning capacity after 14 November 1980 and continuing but not needing specific compensation because compensated for by payment of full wages, I think the appropriate amount to award is $10,000.

38. Out-of-pocket expenses are agreed at $1,067.40.

39. There will be judgment for the plaintiff in the sum of $15,117.40.