Mohamed Sobhi Marharba v Albert Mario Gregori [1987] ACTSC 25 (7 April 1987)

SUPREME COURT OF THE ACT

MOHAMED SOBHI MARHARBA v. ALBERT MARIO GREGORI
S.C. No. 465 of 1984
Damages for Negligence

COURT

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

CATCHWORDS

Damages for negligence - Assessment - No new question of principle involved.

HEARING

CANBERRA
7:4:1987

ORDER

There be judgment for the plaintiff in the sum of $117,474.90.

DECISION

The plaintiff claims damages for injuries said to have been sustained in an accident on 5 January 1982. On that date he was travelling in Gladstone Street, Fyshwick towards the junction of that street and Maryborough Street. As he approached the junction the defendant was driving his motor vehicle in the opposite direction in Gladstone Street.

2. The plaintiff gave evidence that the defendant went to turn right into Maryborough Street in front of him. He saw no indication that the defendant proposed to turn right. The plaintiff saw the defendant turning right in time to apply his brakes but was not able to slow down enough to avoid a collision.

3. The defendant gave evidence that he was travelling east in Gladstone Street, intending to turn right into Maryborough Street. Before he turned he looked to his front but did not see the plaintiff's vehicle approaching him from the opposite direction. He turned right at a speed of between 25 and 35 kilometres per hour. He was almost into Maryborough Street when he heard the noise of the collision. He did not feel it. He said little apparent damage was done to either vehicle. Enough was done, as I am satisfied, for part of the body of the plaintiff's car, its left front mudguard, to be jammed against the car's left front tyre.

4. I am satisfied that the defendant failed to keep a proper lookout. Had he done so, he must have seen the plaintiff's vehicle approaching. I am also satisfied that he turned in front of the plaintiff's vehicle and across its path when it was unsafe to do so at a speed which did not give the plaintiff enough time to take evasive action. I am unable see any contributory negligence on the part of the plaintiff. He was entitled to expect that the defendant would not turn in front of him. Even if he had noticed the defendant's indicator operating he would still have been entitled to expect that the defendant would not turn across his path while it was unsafe to do so and at a speed which would not give him enough time and space to take successful evasive action. There must therefore be a verdict for the plaintiff.

5. The plaintiff, whose English is poor, gave evidence that immediately upon impact he felt his body "go and come" (by which I understand him to mean "back and forth"). He saw lights before his eyes, he felt bad in the back. He was wearing a seatbelt. The police attended. Apparently during the course of their investigations he was asked whether he was injured and replied, "I have back pain".

6. As I have said, part of the left front mudguard of the plaintiff's car was jammed against the left front tyre. With assistance, that part was moved from the tyre so that he was then able to drive the car. He left the scene and tried first to see Dr Quach. Dr Quach was not available so he went to see Dr W.J. Bishop. Dr Bishop reported that the plaintiff complained of a sore neck on the right hand side at level C7 and of pain on the right hand side of the sacrum in the buttock. Dr Bishop thought the pain muscular in origin and prescribed tablets and ointment. The plaintiff did not attend on Dr Bishop for review as arranged but, on 12 January 1982, consulted Dr Quach instead.

7. He complained to Dr Quach of pain in his neck and lower back. Examination revealed no obvious external injuries but there was tenderness in the neck and restricted movement of flexion and extension. The plaintiff's back was tender in the lower lumbar area and he could not fully flex his spine. An x-ray of the cervical spine showed a slight restriction of flexion and extension but no fracture, dislocation or evidence of cervical instability. A tiny separate ossification centre was seen at the anterior margin of the C6-C7 disc space. An x-ray of the lumbar spine disclosed arthritic lipping of the bodies of D11-D12 and also L3-L4 but no narrowing of any intervertebral spaces and no evidence of bone injury.

8. Dr Quach prescribed rest, physiotherapy and Brufen tablets and expressed the view, in the event not well founded, that the plaintiff should respond well to treatment and that there should be no permanent disability. Dr Quach advised that between 20 May 1977 and 3 December 1981 the plaintiff had consulted him on seven occasions. On three he was suffering from upper respiratory tract infection, on another from non-specific urethritis, on another from tenderness diagnosed as muscular strain in the lower abdomen, on another from pain in the left loin again diagnosed as muscular strain and on 3 December 1981 from an itchy allergic rash on the arms.

9. Following the accident the plaintiff spent some time in bed. After about two months on some form of medication he began to feel somewhat better.

10. About three or four months after the accident he was offered a cleaning job on five days a week for four hours during the period from 5.30 p.m. to 10.30 p.m. Occasionally he found that he would have to go home because he had pain in the back and legs. He continued that work for about fourteen months, occasionally getting extra work in the morning which caused him pain. He continued with that morning work despite the pain because he needed money to support his family. While working he underwent more physiotherapy and continued to see doctors. In about May 1983 his employer offered him work as a cleaner for eight hours a day. He accepted and, indeed, got some extra work as well.

11. On 6 August 1982, he was seen by Dr Chandran, a neurosurgeon, apparently following an attendance at the Woden Valley Hospital on the evening of 23 July 1982 when he complained of severe low neck pain and headaches. He appears to have made no complaint of low back pain then.

12. He first saw Dr Newcombe, another neurosurgeon, on 21 October 1983 at the request of Dr J. Corry. I will deal more fully with Dr Newcombe's evidence in due course. For the moment it is enough to say that on 27 March 1984 he considered that because of the continuing symptons of which the plaintiff complained he was unable to return to work as a cleaner. Reporting on 22 January 1985, Dr Newcombe said:-

"It was the symptoms that he was suffering

that prevented work rather than the
degenerative changes which probably
ante-dated his injury."

13. In a letter of the same date to the plaintiff's solicitors Dr Newcombe said:-

"You will appreciate that the principal
reason for saying that he was unfit for work
is on the basis of his subjective complaints
and their continuance."

14. Thereafter the plaintiff worked from time to time. In 1985 he worked with a company described as "Limro", a cleaning company, for approximately two months and one week. He gave notice to Limro when offered a position, which he took up on 8 October 1985, as a technical assistant at the Canberra TAFE College, under a Commonwealth Employment Service scheme. Under the scheme he was employed for 21 weeks. He was reasonably comfortable doing the work at the Canberra TAFE College because he was able to rest when he needed to because of his injuries. He completed the 21 weeks and did an extra two or three weeks as a janitor. Since then he has not worked. He does a little light gardening at home from time to time for very short periods. He has had some experience in framing work. He has tried to get further work with the Education Department of the type that he did at the Canberra TAFE College although no official record of such an attempt was available.

15. On 27 February 1984 he consulted Dr Dimitri who speaks Arabic. Dr Dimitri referred him to Dr Guirgis, a Sydney orthopaedic surgeon and to Dr Grivell, a psychiatrist. (He first consulted Dr Grivell on 11 November 1985) He was also under the care of Dr Corry, a specialist in rehabilitation medicine. On 21 June 1984, also at the request of Dr Dimitri, he consulted Dr Younan, a psychiatrist who practices in Sydney and also speaks Arabic.

16. The plaintiff has also consulted Dr Knox, another psychiatrist, and was seen by Dr Gytis Danta, a neurologist, who carried out nerve conduction studies.

17. The plaintiff gave evidence that he takes a substantial amount of medication and I have no reason to doubt that he does although its amount is presently much reduced.

18. He gave evidence that before the accident he was a happy man. Since the accident trouble between himself and his wife and children started. I am satisfied that on one occasion before the accident there was a disagreement between his wife and himself which needed the intervention of an intermediary. He feels unhappy about going anywhere and is lonely and tends to separate himself from other people. He is nervous. He finds driving a car difficult.

19. He uses slip-on shoes because he says he cannot tie his shoelaces. The children have to bring his shoes from a cupboard and he slips them on. His son massages his back and neck once or twice a week. He himself mows the lawn some of the time, I gather rather more than half what is necessary, while his son does the rest. At the Woden Valley Hospital he has undertaken a course in English.

20. The plaintiff described himself as suffering from pain in the low back and neck. He also has pain and numbness in his right leg. Sometimes when the weather is cold the pain gets worse and if he works he has bad pain. On good days when he has pain he can do something but he has to rest intermittently.

21. In cross-examination the plaintiff agreed that he had been paid unemployment benefits from July 1978 to 15 June 1979, from July 1979 to June 1980, from July 1980 to June 1981 and from July 1981 to 24 June 1982 and thereafter from July 1982 until 29 April 1983. The plaintiff explained that he was working part-time and he gave notice of this to the Department which cut off some of his benefit. I think he did a fair bit of paid work during the period July 1978 to December 1981 inclusive but I am unable to say exactly how much. It was, I think, enough to keep him in good emotional health, an important consideration having regard to his later history.

22. The plaintiff has attended upon and been treated by a number of medical practitioners. I have already referred to his attendances upon Drs Bishop, Quach, Chandran and Newcombe.

23. Dr Chandran performed a cervical discogram on 18 March 1983 with a view to determining the exact source of the plaintiff's neck pain so that surgical treatment could be considered. He found the plaintiff hypersensitive to pain and quite unreliable during the examination. He could reach no firm conclusion as to the plaintiff's condition.

24. The plaintiff first consulted Dr Corry on 10 May 1983. Reporting thereafter, Dr Corry concluded that the plaintiff's history was consistent with a whiplash type injury in the accident with probable soft tissue injury to the neck and low back. Severe symptoms settled over a period of 10 days but there was chronic persisting pain thereafter. He thought at that time that the disability the plaintiff suffered did not seem major and that he was fit for work as a cleaner particularly when given lighter duties and not asked to work with heavy polishers.

25. On 19 July 1983 Dr Corry saw the plaintiff again. X-rays taken 18 May 1983 showed some minor degenerative changes in the lower thoracic and upper lumbar vertebrae. Discs appeared normal. There was a slight lumbar scoliosis. The plaintiff complained then of considerable pain in his neck which had become acutely worse about three weeks before when he had had a few days off work. The plaintiff believed that the acute pain had been caused by the carrying of bags of rubbish over his shoulder. He was undergoing physiotherapy with some benefit. Dr Corry thought that he was fit to do the work, light cleaning involving picking up rubbish and vacuuming and sweeping, that he was doing. He thought he might have minor recurrences of pain from time to time and need physiotherapy treatment on those occasions.

26. He examined the plaintiff again on 23 September 1983 when he received complaints of increasing pain in the lower back. The plaintiff's neck remained much the same as before with pain on movement. Dr Corry thought he had definite signs of nerve root involvement probably at the L5-S1 level and referred him to Dr Newcombe.

27. Dr Newcombe, reporting to Dr Corry, said that investigations failed to confirm any evidence of nerve root entrapment which could be causing the apparent wasting in the calf musculature in the plaintiff's right leg. He thought the symptoms predominantly musculo-ligamentous in origin and did not advise surgery.

28. Before completing a review of Dr Corry's evidence I turn to Dr Newcombe's reports and evidence.

29. Dr Newcombe received a history generally consistent with others given by the plaintiff. On 21 October 1983 he found no abnormality of the cranial nerves, restriction of lateral flexion of the neck to about 30 degrees on each side with no sensory, motor or reflex changes in the upper limbs. Lumbar spinal movements were restricted in range. Straight leg raising was impaired to 10 degrees on the right side and there was bilateral loss of the ankle jerk.

30. When reviewed on 17 November 1983 the plaintiff continued to have neck pain and low back pain mainly towards the right side and pain over the right sacroiliac joint. Dr Newcombe could find no difference in muscle bulk of significance to indicate wasting of the right thigh musculature. A lumbar myelogram was performed on 3 January 1984. It revealed central disc bulging at L4-L5 and L5-S1 levels but no definite evidence of nerve root entrapment. He considered the injury of 5 January 1982 would appear to have consisted of a musculo-ligamentous strain of the neck, a lumbar spinal strain with aggravation of early lumbar spondylosis and possibly a strain of the right sacroiliac joint. Dr Newcombe thought that the plaintiff appeared to have enough pain to impair his work, including work as a cleaner involving lifting or bending. He said:-

"Such a disability cannot be said to be an
absolute and permanent one except in the
terms of the fact that he has established
lumbar spondylosis and that he has continuing
complaints of pain. If his pain subsided
then there would remain some risk of
aggravation of spondylosis in the future and
this would make it prudent for him to avoid
such occupations. The injury of 1982 is not
the cause of lumbar spondylosis but appears
to have led to aggravation of it."

31. I have already quoted from Dr Newcombe's report and letter of 22 January 1985. Additionally he said in that report that when he last examined the plaintiff, on 27 March 1984, the plaintiff told him that there was continued neck and left arm pain, the latter extending as far as the elbow, and also low back pain. Transcutaneous electrical neural stimulation helped so far as the neck pain was concerned. He thought then that there was a continuing aggravation of cervical and lumbar spondylosis. He felt that the plaintiff was unable to return to work as a cleaner in view of the continuing symptoms and that in the absence of improvement future return to work was unlikely.

32. I am satisfied that on Dr Newcombe's advice the plaintiff ceased work late in 1983, probably on or about 17 November 1983.

33. So far as his physical condition, as distinct from his psychological condition, is concerned, I am satisfied that by 5 January 1982 the plaintiff was suffering from generalised degeneration of the spine which, to that point, had not been symptomatic. It was rendered symptomatic to a degree by the accident. There is no satisfactory evidence that there is any nerve root involvement giving rise to nerve pain. I am satisfied on all the evidence that the various diagnoses concerning unfitness to work depend upon the acceptance by the doctors concerned of the complaints of pain made by the plaintiff. The cause of the pain cannot be physically demonstrated although it is consistent with musculo-ligamentous strain associated with the long standing spondylosis. The plaintiff's credibility was therefore very much in issue.

34. Having had the opportunity of watching him closely while he was giving evidence and while he remained in Court thereafter, I came to the conclusion that he was basically a truthful witness. He certainly had difficulties with English. These were never more apparent than when, late in the case, he was being cross-examined concerning the accident. Displaying, for the moment, some animation, he attempted to explain the circumstances of the accident. It was clear that he was doing his best, without attempting to make a good or bad impression, to explain exactly what had happened. Nevertheless, he found it very difficult to put his explanation in English. I reject any suggestion that he was or is a malingerer. I am supported in this view, at least in small part, by his work history since the accident. Clearly he has endeavoured to work when he could and this tends to set him apart from many plaintiffs suffering from similar injuries.

35. It is perhaps unfortunate, as Dr Corry said, that he was put off work in late November 1983 but I am satisfied that by this time he was suffering psychological damage as a result of the accident. That damage was secondary to his pains but real nonetheless. Better management of his painful condition has led to a reduction to a generally more acceptable level in his use of drugs.

36. Overall, I am satisfied that the plaintiff is now disabled from doing any but light work created for him in special circumstances. I do not think such special circumstances will be available in the accessible labour market. I make allowance for the fact that he was employed in a government programme and may, perhaps, have been able to be engaged for somewhat longer in that programme than he was. However, such programmes cannot, in my view, be a real substitute for lost earning capacity even though money earned during their currency ought to be taken into account in reduction of damages suffered by a plaintiff.

37. But the plaintiff's spondylosis was such that it would have become symptomatic in any event within a relatively short time. I think that by the end of 1991 he would have been disabled and have found himself in relation to the job market in much the same condition as that in which he presently finds himself. In reaching this conclusion I have taken into account the possibility adverted to by Dr Newcombe that disabling symptoms might have become apparent earlier than mid 1994 and had some regard for the vicissitudes of life which could hardly have been expected to be favourable at this stage.

38. After careful consideration of the plaintiff's English as demonstrated in the witness box and his apparent difficulty in coping in that language with accountancy concepts, I think it highly unlikely that he would ever be able to do a clerical job satisfactorily, although this has been considered as a possible rehabilitative measure.

39. I am satisfied that the plaintiff's home life has been much disturbed and that he can no longer do some of the things which he ordinarily did about the house and garden. The claim made under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 is modest and I propose to allow this claim for the period to the end of 1991, making due allowance for the times when the plaintiff seems not to have been as incapacitated as he generally is.

40. I am also satisfied that the plaintiff's domestic life has suffered from his depressive condition and his inability to cope with his present condition. He appeared to be very depressed during the course of the hearing and I had no reason to suspect that he was in any way pretending. I accept that it may well be the case that but for the fact that the plaintiff was put off work late in 1983 he may have been able to manage to a degree to continue to work. But since in fact he was put off work I think it is to be laid at the door of the defendant in all the circumstances. Of course, I note that he has, as earlier indicated, done some work since then but I am satisfied that he is now generally permanently disabled although he may be able to undertake light work from time to time.

41. Bearing in mind the fact that I am satisfied that in any event his underlying spondylosis would have meant his eventual disablement, I turn to the question of damages.

42. I am satisfied that the plaintiff would have obtained work early in 1982. There was evidence from Mr Kanawaty that employment had been arranged for him. Mr Kanawaty was cross-examined with a view to suggesting that his evidence in this regard was a fabrication or at best a hopeful expectation. However, I am satisfied that even if the plaintiff had not begun to work for Mr Kanawaty he would probably have obtained work shortly thereafter. It is to be noted that not long after the accident he did in fact obtain cleaning work and I am satisfied that, as I have earlier indicated, he was doing a reasonable amount at least of part-time work before the accident.

43. For past economic loss I allow $35,000, making some allowance for contingencies. From this there is to be deducted an amount of $15,950 representing unemployment benefits as assessed with the aid of Exhibit 2 for the period from 5 January 1982 to 17 June 1985, leaving a net $19,050.

44. Out-of-pocket expenses, all of which I am satisfied are to be attributed to the accident, are agreed at $5,749.90.

45. For future pharmaceutical expenses attributable to the accident until such time as he would, in my view, have become incapacitated in any event, I allow the sum of $1,375. This is calculated at the rate of $250 per year in respect of prescriptions with the balance being on account of non-prescription analgesics.

46. For future economic loss I allow $40,000, making some allowance for unfavourable contingencies and the possibility that the plaintiff may obtain part-time work from time to time.

47. For the Griffiths v. Kerkemeyer component I allow for the past an amount of $5,500 and for the future an amount of $7,500.

48. For pain and suffering and loss of amenities of life I allow $25,000.

49. For interest I allow $13,300.

50. There will be judgment for the plaintiff in the sum of $117,474.90.