Frank Joseph v Australian Telecommunications Commission [1987] ACTSC 70 (27 October 1987)

SUPREME COURT OF THE ACT

FRANK JOSEPH v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION
S.C. No. 1079 of 1984
Damages

COURT

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

CATCHWORDS

Damages - assessment thereof - aggravation of pre-existing degenerative conditions of neck and lumbar spine - no new matter of principle.

HEARING

CANBERRA
27:10:1987

ORDER

There be judgment for the plaintiff in the sum of $94,529.86.

DECISION

On 15 October 1987 during the course of the hearing of this action, I entered interlocutory judgment for the plaintiff and adjourned the further hearing of the evidence relating to damages. The evidence was completed on 19 October 1987.

2. The plaintiff fell forwards and sideways and suffered injuries to his right elbow, right shoulder, right side of his thorax posteriorly, right hip and lower back. He became dizzy and was in pain. He was taken to the Royal Canberra Hospital and was kept under observation for about five hours. X-rays were taken of his skull, cervical spine and chest. No recent traumatic abnormalities were disclosed. He went home to bed for three days. He remained incapacitated for work because of the pain in his neck, occasional pins and needles in the right hand and lower back pain.

3. He consulted his general practitioner, Dr Steven Jamieson, on 29 June 1984 and has remained under his care. As at September 1984 his neck signs and symptoms had not improved and his lumbar spine was still rigid and painful. He also had pain in the right shoulder. At that stage Dr Jamieson's opinion was that the symptoms should eventually settle. However, they did not settle and the plaintiff was retired on the grounds of invalidity on 23 May 1986 due to "degenerative disease of the spine including the lower back and neck". The retirement decision noted by the appropriate officer of the defendant stated that a suitable position for the plaintiff's continued employment was not available.

4. A great deal of medical evidence was presented by both parties. The starting point is that prior to the subject accident the plaintiff had fairly advanced degenerative conditions of the spine and right hip.

5. The issue is whether the aggravation of his pre-existing degenerative conditions of the spine and hip suffered in the subject accident resolved after a period or whether he has continued to suffer from the aggravation of those conditions up until the present time. So far as the period before the accident is concerned, he was given traction treatment at the Royal Canberra Hospital for back pain with sciatica on 11 July 1966. There was some evidence in the form of clinical notes by his former general practitioner, Dr C.W. Lai, about treatment for neck and back pain but the notes, which are part of Exhibit F, are quite illegible, so I am not able to make any findings about those complaints. Dr Lai was not called to give evidence. The plaintiff confirmed in evidence that he had some treatment from Dr Lai in about 1976 for back problems and had one to two weeks off work.

6. In a car accident in 1975 he sustained generalised bruising and a neck injury which settled after four or five months. He then had no neck or back symptoms until a further motor car accident in 1979. He sustained pain in the neck and lower back and was off work for six weeks. Most of the pain settled in two or three months but occasionally he would have some stiffness and pain in the lower back on bending and doing excessive physical work. With regard to the right hip the plaintiff said he had no trouble with the hip except an occasional catching sensation.

7. The plaintiff's present complaints, which have endured since the accident, are back and hip pain and occasional pain in the neck. These pains make it difficult for him to sleep as he takes a long time to get comfortable. His right leg gets hot, is painful and he gets pins and needles in the leg. He has become irritable and depressed. His physical relationship with his wife has been grossly affected, but in recent months she has been ill anyway. He no longer can enjoy his main recreation of fishing and has difficulty driving and travelling in motor cars.

8. From the whole of the evidence, including some films of the plaintiff in various activities taken on 19 July 1985, 17 and 18 August 1985 and 4 August 1987 and his presentation in court, the plaintiff has a pronounced limp. Dr Jamieson's opinion, which I accept, is that the plaintiff's right hip is unrelated to the accident and it is, at least to the extent of fifty per cent, the cause of the pronounced limp.

9. At the request of his solicitors, he was examined by Dr Gytis Danta, neurologist, on 14 March 1985. Dr Danta expressed the opinion that at that time there was little doubt that the plaintiff was suffering from degenerative cervical and lumbar disc disease aggravated by the various accidents, particularly the accident on 21 June 1984. Accepting that the plaintiff did not have any symptoms before that accident, Dr Danta was of the opinion that the subject accident was the cause of the plaintiff's symptoms and disability. In May 1985 Dr Danta thought that the plaintiff's condition was relatively static and likely to continue indefinitely.

10. He examined him again on 14 March 1986. At that time the plaintiff's symptoms and disabilities had not significantly changed in the past year. Dr Danta was of the opinion that the plaintiff's disabilities and incapacity for work at that time were "mainly the results of the injuries received on 21 June 1984, since he had partly recovered from the effects of the two previous accidents". He reviewed the plaintiff again on 14 September 1987. The symptoms complained of were unchanged.

11. Dr Danta also gave evidence on behalf of the plaintiff and expressed the opinion that without the subject accident the plaintiff would probably have continued to work until 65 years of age, as he had very little problems before the accident.

12. The plaintiff was also referred by his solicitors to Dr R.L.G. Newcombe, neuro-surgeon, and was examined on 26 March 1985. Dr Newcombe was of the opinion at that stage that the plaintiff was suffering from cervical and lumbar spondylosis aggravated by the subject accident and that that aggravation was continuing. His general condition appeared stable at that stage.

13. When Dr Newcombe saw the plaintiff again on 17 April 1986 he considered that he was still suffering from aggravation of lumbar spondylosis from the fall of 21 June 1984. He based this opinion on the history that the back pain prior to the fall was only occasional backache especially after prolonged bending, had become worse and more persistent following the fall and also the leg pain started after the fall and persisted till April 1986.

14. The defendant's medical advisers, however, were of the opinion that although the plaintiff sustained some aggravation of his pre-existing degenerative cervical and lumbar conditions in the subject accident, any such aggravation was of a temporary nature only and that any continuing symptoms once that aggravation had abated were due to the degenerative conditions and not to the subject accident.

15. Dr Geoffrey Stubbs, orthopaedic surgeon, saw the plaintiff on behalf of the defendant in October 1984. He said in his report following that examination that clinically the plaintiff gave the impression of a martyred man. He said that the plaintiff co-operated very little, his neck and back were practically rigid and there was voluntary restriction of movement. Some of the plaintiff's reactions were inconsistent and in Dr Stubbs' opinion the plaintiff was at great pains to impress how disabled and painful his condition was and his physical abilities were beyond those that he would display. In Dr Stubbs' opinion the plaintiff was exaggerating his disability and physical restrictions.

16. He expressed the opinion that the plaintiff's well established degenerative changes in the back and neck were already painful and that the plaintiff had reached a stage where he had sufficient discomfort to no longer wish to remain at work in a fairly lowly paid condition. He was of the opinion then and 12 months later, that the plaintiff's condition was, on the balance of probabilities, the natural progression of his pre-existing or underlying condition. Whilst some aggravation had occurred, any exacerbation was temporary and any effects thereof should have ceased by three months after the injury.

17. The defendant also caused the plaintiff to be examined by Dr Munro S. Alexander, general surgeon, of Annandale, Sydney, on 20 December 1984. Dr Alexander was also of the opinion that the plaintiff probably aggravated his cervical and lumbar spondylosis in the subject accident, but although the plaintiff had a large number of complaints there was very little in the way of abnormal physical signs to substantiate his ongoing complaints. He said in evidence that there had been a tremendous degree of exaggeration by the plaintiff with very little objective signs to support it. He thought that the aggravation had been temporary only and would have abated within three months.

18. The defendant also had the plaintiff medically examined by Dr Edwin J. Cassar, consultant physician, on or about 21 August 1985. Having examined the X-rays taken in 1984 at the Royal Canberra Hospital, Dr Cassar diagnosed serious pre-existing disc degeneration and accompanying nerve root irritation at two separate levels, C3/4 and C5/6, which even without the incident of 21 June 1984 would have resulted in the plaintiff's current injuries and disabilities. He could find no supportive evidence of lumbar nerve root irritation, lumbar spasm or other signs to support the current incapacitated back and right hip. He was of the opinion that the fall should not have disabled the plaintiff for any longer period than six weeks at the most and that any residual disability present since August 1984 would have in any case been expected whether or not the incident of 21 June 1984 had occurred. He regarded the injuries and disabilities due to the accident to have been of short term duration and should not have affected the plaintiff for longer than a six week period.

19. He re-assessed the plaintiff at the request of the defendant on or about 26 March 1987 and was of the opinion that it was unlikely that the subject accident was the cause of any disability in the lower back, right hip and right leg, but rather that they were due to progressive degenerative changes unrelated to the accident and would have resulted whether or not the 1984 accident had occurred. He maintained those views in his oral evidence.

20. The defendant also caused the plaintiff to be examined by yet another orthopaedic surgeon, Dr Anthony Cairns, on 23 October 1985. With regard to the hip condition, Dr Cairns said in evidence that the plaintiff had a pre-accident osteo-arthrosis of the right hip which was unaffected by the accident. He was also of the opinion that the cervical and lumbar spine conditions were degenerative and aggravated by the subject accident. Nevertheless, he found "psychogenic magnification" of the plaintiff's disabilities, meaning that they arose from the plaintiff's mind whether consciously or unconsciously, feignedly or unfeignedly. He said he had been unable to form any conclusion whether the plaintiff's complaints were feigned or otherwise.

21. Lastly, the plaintiff was also medically examined on behalf of the defendant by Dr K. Nadana Chandran, on 20 November 1985. He too was of the opinion that the degenerative changes in his neck and back were aggravated by the subject accident and that without the accident, the natural progression of his underlying degeneration of the neck and hip would have made him incapable of working beyond the age of 60 years. He reviewed the plaintiff on 30 April 1987 following which he expressed the opinion that the plaintiff's current disabilities were due to deterioration of the underlying degenerative change in the hip, cervical and lumbar spines. He said that there would have been a progressive degeneration spontaneously without the accident in June 1984 and that the incident had accelerated the degenerative changes and symptoms.

22. In resolving the conflict of medical testimony, I am not prepared to reject the opinions of the plaintiff's treating general practitioner, Dr Jamieson, neuro-surgeon, Dr Newcombe and neurologist, Dr Danta. I am also guided by my own impression of the plaintiff as a witness. He appeared to be quite straightforward in his evidence and endeavouring to tell the truth. He made concessions in cross-examination about his ability to perform certain manual tasks and did not appear to me to be exaggerating his evidence of his residual disabilities. The films depicting the plaintiff in various activities on 19 July 1985, 17 and 18 August 1985 and 4 August 1987 tend to corroborate the plaintiff's evidence of his disabilities.

23. I find that in the subject fall the plaintiff suffered an aggravation of his pre-existing degenerative cervical and lumbar conditions which had been almost asymptomatic prior to the accident. As a consequence he has the symptoms and disabilities outlined in his evidence and set out above. He has never returned to work and was retired on the ground of invalidity. He is now 58 years of age. His own evidence is that he would have continued at work but for his disabilities until age 65 years, but I do not accept that as a fact as appears later in these reasons.

24. His disabilities arising from the accident are now stable. Consequently he is not likely to gain any remunerative employment for the rest of his life. He may be able to do odd jobs from time to time. So far as his general health is concerned, I find that he suffers from ischaemic heart disease. This was a very serious problem from about 1970 until 1980. In 1980 he had an operation for the resection of a left ventricular aneurysm. At that time he had a single vessel disease with total occlusion of his left anterior descending coronary artery which had previously resulted in an anterior infarct. He was successfully operated on, and so far as his heart is concerned, he now has excellent long term prospects.

25. I accept the opinion of Dr Ian Jeffery, cardiologist, that the plaintiff's underlying heart disease is unlikely to have interfered with his ability to work to the retiring age of 65 years. Dr Jeffery's evidence, which I accept, is that although the plaintiff's blood ejection fraction, which is a form of measurement of heart function, is not particularly good, the extent of his disease and the frequency of symptoms since 1980 are such that his chances of having a further heart attack are very small and in the order of two per cent.

26. For pain and suffering, inconvenience, loss of his chosen occupation, and all the other matters I am required to take into account on the question of general damages, I provisionally assess the sum of $25,000.

27. With regard to past economic loss, it was agreed between the parties that the plaintiff's past wage loss from the date of accident to the date of trial is $38,504.80, but it was not conceded by the defendant that the plaintiff is entitled to his economic loss to the date of trial because the effects of the accident were of temporary duration only. I have already dealt with that issue under the head of general damages. I think it is reasonable and consistent with my findings in relation to general damages to compensate the plaintiff on the basis of total past wage loss. I therefore adopt the figure of $38,504.80 and discount that figure slightly for contingencies, such as other accidents or illness, between the date of the accident and the date of trial. I provisionally assess the sum of $36,000 for past economic loss.

28. The agreed Fox v. Wood component is $4,062.87 and I provisionally assess that sum.

29. The weekly payments of workers' compensation already paid to the plaintiff by the defendant total $37,844.63. As that figure exceeds my provisional assessment of $36,000 for past wage loss and would have to be taken into account for interest purposes had the plaintiff recovered his total past wage loss, I shall ignore the figure of $36,000 for the purposes of calculating interest on the head of damages for past wage loss.

30. With regard to loss of earning capacity, the defendant relies upon the evidence of Dr Newcombe and Dr Chandran that the plaintiff would have ceased employment by age 60 in any event due to the degenerative changes in his neck, back and hip. I think those opinions are probably correct and should be accepted. His duties as an Assistant Grade 2 in the Drafting Section of the defendant organisation involved mostly general office work, but they also involved some walking over all sorts of terrains and some physical effort with heavy objects such as manhole covers. I find that the degenerative condition of the plaintiff's spine and hip would have prevented him from performing any work other than the light office work within about five years of the subject accident.

31. It was an agreed fact that the current net weekly wage of an Assistant Grade 2 is $233.46. The present day value of a net wage of $233.46 to age 62 discounted at the rate of three percent with no allowance for interest on the capital sum invested, is just under $46,000. Allowing for the vicissitudes of life and on the assumption stated above, namely that the plaintiff would not have worked beyond about age 60 anyway, I provisionally assess the sum of $25,000 for loss of earning capacity.

32. There is a claim for loss of superannuation. In their report actuaries have calculated the plaintiff's loss of superannuation on the assumption that but for his injuries the plaintiff would have retired at age 65 years, but because of his injuries he was retired on 22 May 1986. The loss calculated by the actuaries is $4,124. The defendant has agreed that the actuaries have accurately calculated the loss on the figures supplied, but it has not admitted the figures supplied. Included in those figures was a figure of $87.34 per week. That figure seems to me to be greater than the plaintiff would have received if he had been retired at age 60 but for his injuries. Section 56(3) of the Superannuation Act 1976 provides that the annual rate of pension for a period of contributory service less than 30 years is the percentage of his final annual rate of salary as provided in Table 2, Schedule 1. Table 2, Schedule 1 appears to me to provide that the plaintiff would have been entitled to 25.2 percent of his final annual rate of salary. Adopting the figure of $233.46 per week, the sum of $87.34 exceeds 25.2 percent of $233.46. Accordingly, in my opinion the plaintiff has not proved any loss of superannuation.

33. The agreed medical expenses are $966.99.

34. For the purposes of calculating interest on the sum of $25,000 for general damages, I apportion $15,000 to past pain and suffering and other matters, and $10,000 to the future. I apply an interest rate of 14 percent to the figure of $15,000 from the date of accident to the date of trial and halve the result, which yields a figure of $3,500. I provisionally assess the sum of $3,500 for interest.

35. The various components of the award therefore are:

General damages $25,000.00

Past economic loss 36,000.00
Agreed Fox v. Wood component 4,062.87
Loss of earning capacity 25,000.00
Agreed medical expenses 966.99
Interest on past general damages 3,500.00
__________
Total $94,529.86
__________

I have considered that figure as a global sum and confirm my provisional assessments.

36. There will be judgment for the plaintiff in the sum of $94,529.86. I shall hear counsel on the question of costs.