Kingsley Bruce Gifford v Ratko Vuletic [1989] ACTSC 44 (1 September 1989)

SUPREME COURT OF THE ACT

KINGSLEY BRUCE GIFFORD v. RATKO VULETIC
S.C. No. 963 of 1984
Negligence

COURT

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

CATCHWORDS

Negligence - assessment of damages - no new question of principle involved

HEARING

CANBERRA
1:9:1989

Counsel for the Applicant: Mr. G. Stretton
Instructed by: Messrs Snedden Hall & Gallop

Counsel for the Defendant: Mr. L. Morris QC
Mr. J.C. Hartigan
Instructed by: Messrs Abbott Tout Creer & Wilkinson

ORDER

There be judgment for the plaintiff for $221,507.43.

The defendant pay the plaintiff's costs.

DECISION

This is a claim for damages arising out of an accident which took place on 8 April 1982. The plaintiff was almost 16 years old at the time, having been born on 25 October 1965.

2. On the morning of 8 April 1982 he was riding a motorcycle north in Moore Street, Canberra City. As he approached the intersection of that street and Rudd Street, he saw a car approach the intersection in an easterly direction and stop at a "Give-Way" sign erected at the intersection against vehicles travelling east. When the plaintiff saw that the other driver had stopped he turned his head to the right to check the other side of the intersection. When he turned back he saw that the car which had stopped had come out into the middle of the road. When the driver of that car, the defendant, saw the plaintiff he stopped. The plaintiff tried to avoid the car by swerving but was unable to do so. His motorcycle collided with the front of the car, his knee struck its righthand front mudguard and he was thrown some distance over its bonnet. He was wearing a safety helmet, the back of which was cracked as a result of his fall. He did not lose consciousness. The plaintiff had the headlight of the motorcycle burning before the collision.

3. It is clear that the defendant was negligent in failing to give way when he had been required to do so by a "Give-Way" sign. However, he pleaded that the plaintiff had been guilty of contributory negligence. I am unable to see that he was, and indeed no submission in this regard was made by senior counsel for the defendant during the course of his closing address. There must accordingly be a verdict for the plaintiff without reduction for contributory negligence.

4. After the accident the plaintiff felt shaky and nervous. His left knee was swelling and had sustained an abrasion. An ambulance arrived at the scene but he did not travel to hospital in that ambulance. Subsequently his mother arrived and took him to the Royal Canberra Hospital where he was attended to in the Accident Emergency Section. His leg was X-rayed and bandaged and he was given crutches. He was told that no bones had been broken and he was sent home to rest. He gave evidence, and I accept, that the next day his whole body was aching. He said that his lower back was aching, but that it was his knee that gave him the most pain for the first couple of days after the accident. The nervous tension caused by the accident subsided over the next day or so. He spent the next few days in bed at home and was off work all told for a period which seems to have been about three weeks. He was at the time an apprentice bricklayer, having commenced his apprenticeship immediately after completing Year 10 at High School at the end of 1981. He was apprenticed to his father, who was a building contractor, although he actually worked with a Mr Trevor Bones, a very experienced and skilful bricklayer.

5. I am satisfied both on the plaintiff's evidence and that of his father, that on his return to work after the accident he engaged in light work. He said that he was then suffering from pain in his left knee and lower back pain. His knee used to lock.

6. Subsequently the job on which he was working at the time of the accident was finished and Mr Bones moved to Sydney about a month after its completion. The plaintiff went with him. This was about six months after the accident. When he went to Sydney he continued his apprenticeship, attending at the Randwick TAFE College. He had previously attended the Canberra TAFE in connection with his apprenticeship. He said that when in Sydney working for Mr Bones he had a lot of problems with his leg and lower back pains. He thought the lower back pains were just a consequence of the job of bricklaying, that "that was what bricklayers get".

7. He consulted a Dr Huang, a general practitioner, concerning his knee. Dr Huang referred him to Dr Roarty, an orthopaedic surgeon, whom the plaintiff described as a specialist on knees. He saw Dr Roarty on 8 December 1982. He appears to have made no reference to his back condition and this is explicable, I think, on the basis of the view he took of his back condition as an incident of bricklaying.

8. Dr Roarty recommended arthroscopy. The plaintiff was admitted to St Vincent's Hospital in Sydney on 14 January 1983 where the arthroscopy was carried out. The procedure caused him to feel sick and nauseated and his leg ached a lot more than it had when he was admitted to hospital. He was in hospital for what he described as a long day. When he left the hospital he was given crutches. Following the surgery he was unable to resume work immediately. He came back to Canberra to his parents' home to rest, but shortly afterwards began to work for two contract bricklayers, Mr Alan Gaines and Mr Frank Ross. This work was part of his apprenticeship training. His duties included mixing mud, cutting bricks, loading scaffolds with bricks and laying bricks if there was any time available after he had carried out his other duties. He had a lot of difficulty performing lifting tasks and laying bricks along walls. The difficulty he experienced was pain in the lower back when he was bending, lifting and holding weights and leaning over. When he was carrying weights he had pain down the back of his legs but the pain was mostly confined to the lower back.

9. In July 1983 he consulted Dr Ferguson, a general practitioner, who examined him thoroughly, arranged for him to have an arthrogram (it was very painful), prescribed Brufen tablets as an anti-inflammatory agent, and arranged that the plaintiff should have some manipulative treatment.

10. The plaintiff worked with Messrs Gaines and Ross for about six months. They were working basically on one job. During that period he was receiving manipulative treatment. By the end of it he was laying quite a lot of bricks but he was, as he put it, "getting stuck" and was having trouble with brickwork. He meant that he was being, again as he put it, "caught up in pain (in the) lower back". He then stopped working for Messrs Gaines and Ross and began to do odd jobs of the type performed by builder's labourers for his father. Then, in April 1984 he was at the TAFE College performing technical work and engaged in a practical test, laying a brick pier. As he did this he became locked in a position holding a brick and a trowel of mud, bent over, dropped the brick and the mud and fell to his knees. Almost immediately thereafter his apprenticeship was terminated. The certificate with which he was furnished at the time indicated that the termination was by mutual consent, but the plaintiff said, and this was not challenged, that the reason for the termination was the incident at the TAFE College and the unwillingness of the Principal to risk being liable for any damage that might be occasioned the plaintiff because of his condition.

11. The certificate of service given upon cancellation of his apprenticeship was dated 12 October 1984 and gave as the reason for the cancellation "Cancelled by Mutual Consent - unable to continue with apprenticeship due to motorcycle accident".

12. On 25 November 1983 the plaintiff consulted Dr Alistair Robson, a neurosurgeon, to whom he had been referred by Dr A.K. Marinos. Dr Robson recorded the history given him as follows:"

"(H)is main problem is an ache in the low back,
intermittent, but ever recurrent and closely related to
activity. He has had this ache since about three
months after a motorcycle accident in 1981. He was
apparently struck then, and about three months
afterward the backache began. He did not receive any
major treatment for his back at the time of the
accident. In this accident his left knee was hurt ...
In addition to the ache in the low back he has had an
inter-scapula ache, and he also mentioned a pricking
pain around his chest about the sixth thoracic level.
Of great importance for me is that he has had some ache
down each leg, worse on the left than the right, with
definite sensation of pins and needles. This is quite
outside anything that may be the matter with his knee.
There is no past history of major sickness or of other
accident, and he works as a bricklayer as an apprentice
and he also has some involvement with a band.

13. On examination Dr Robson found the plaintiff to be tender in the low back but without marked physical signs in the lower limbs. He thought that X-rays of the cervical spine were normal, but that those of the thoracic spine showed changes of osteochondritis, a developmental condition with which Dr Robson thought the plaintiff would have to live, since he did not think surgery would be able to relieve it, nor did he think physiotherapy would except as a very temporary help for acute episodes. Dr Robson said that X-rays of the lumbar spine showed clearly that the plaintiff had spondylolisthesis at L5-S1. The condition is a congenital one. Dr Robson felt that the pain he was suffering in the back was due to it as was the paraesthesia in the legs due to involvement of nerve roots in what was essentially a displaced bone complex, part of the spinal structure having slipped. Surgery for the condition would not replace the bones. They would simply be grafted in the position where they were to prevent further bone slip and consequent severe and progressive leg trouble, which Dr Robson considered would be intractable and very difficult to relieve. He therefore recommended an operation with fusion at L5-S1 level with freeing of the L5 nerve roots. He did not believe that any variety of conservative treatment would be worthwhile and was totally opposed to any variety of manipulative management which carried, he thought, the considerable possibility of causing the plaintiff's condition to worsen.

14. He concluded:

"This whole spinal problem of osteochondritis and
sponylolisthesis with or without surgical correction
raises the question of whether he would be wise to
continue as a bricklayer and I have advised him that
he ought at the age of 18 look to change the direction
of his life. How, he would of course have to
determine at family level with his parents, but on
general commonsense grounds I am sure that this is the
time to change and not when he is 35. He is already
having great difficulty with his apprenticeship and
this can only worsen and whilst I think we can fix his
L5-S1 troubles, the osteochondritis may well continue
to give him some spinal discomfort and for those grounds
particularly I think a change should be considered."

15. In about mid-1984 the plaintiff moved again to Sydney with his then girlfriend. She got a job. He was unable to get work as a bricklayer and got sickness benefits. He was going to get unemployment benefits but his father refused to let him do that on the ground that sickness benefits would have to be repaid but unemployment benefit payments would not. When he went to Sydney he looked in the paper a few times for builders' labourers jobs and rang a couple of people. But he was not suited for the jobs which would have required him to work physically at a level he could not reach. For a short time he worked in a record shop at Manly but this was on trial only. The job involved selling records, standing at a counter to serve customers. He was unable to stand for long and wanted to sit down because his back ached and his legs shook, and if he stood for long his legs would give out. This was not satisfactory to his prospective employer. He was not paid for that trial period.

16. He then stayed at home for quite a while. He was pretty depressed. He tried to write songs. He had hoped, indeed he still hopes, to make a career in popular music.

17. While in Canberra in 1983 he had been a member of a band or group known as "The Jones" which played at venues around Canberra. The group received some money for playing but it went mostly in costs of performance, paying for equipment that was hired, and for crew and people to carry the equipment as required. The group had averaged about one engagement per week.

18. While in Sydney he joined a group called "The Sundogs". They obtained some work supporting big bands. They would be paid $250 for appearing live for a period totalling 1 hour. The group was supported by a road crew, the function of which was to transport the big speakers and lights and gear and to set them up and to operate the lights and sound equipment. The road crew were paid from the amount of money the group was paid by those in whose establishments they appeared. A manager took the first 10 percent of the fee which they were paid and the road crew were paid $80 per night. He left the group after it was offered a contract by an American record company in the belief that he could not do what would be expected of him for a period of ten years. The group was dissolved, a formal document of dissolution being prepared and executed.

19. Despite the physical condition from which the plaintiff suffered, I am satisfied that when he performed with the band he gave the appearance of being unrestricted in his movement, moving his head rapidly up and down in time with the beat of the music, bending forward as he vigorously strummed the guitar which he played, and at least on one occasion jumping from the stage to the floor about a metre below. Very occasionally, as I am satisfied, he sat on a stool because he was in a lot of pain. He said that when he was playing with the group he felt adrenalin flowing and this made him, as I gather, more or less oblivious to any pain from which he was suffering. What I may describe as this anaesthetic reaction was also deposed to by his girlfriend, Ms Margaret Rolleston, who gave evidence that once she performed as a rock and roll singer with a piece of glass in her foot and felt no pain. I see no reason to doubt that the plaintiff was telling the truth about this peculiar effect.

20. At times the plaintiff returned to Canberra when he was broke and felt down and out. His father would not give him money for nothing and made him work for any he let him have. He remembers doing some brickwork for window sills although he had difficulty in doing it because the sills were low. He remembers working, for instance, for six hours in one day and going home completely exhausted so that he had to take a day off and then go back the next day after. He also did odd jobs such as sweeping floors and painting with his father.

21. It should be noted that the plaintiff seems to have been under fairly constant surveillance by the defendant's insurer and was well aware of the fact. This, coupled with what I thought was his general honesty, resulted, I think, in his giving evidence as accurately as he could about his activities over the period since the accident.

22. About April 1987 he moved into a building described as "the shed" on land on which was erected the house in which his eldest brother, Peter, who had been a bass guitarist with a group known as Midnight Oil, lived. Eventually Miss Rolleston joined him in that accommodation and they lived together as they still do, although no longer in that accommodation.

23. The property needed doing up and the plaintiff helped his brother in any way that he could. He scraped paint off boards, laid paving stones, painted wood, swept floors, cleaned up, and built a stone wall around one of the pathways. He did this with the assistance of a labourer. All told he was engaged in this work for something like six to eight months, or possibly more. He never finished the work and did not work on it continuously. He worked at his own pace. Sometimes he would work a six-hour day but never a long day. If he did that the next day he would be unable to get out of bed and, as he described it, "was stuck". It might be that the next day after that he would do a bit in the afternoon and then do a bit more. Had he been fully fit he thought that he could have done all the work which he did in three weeks to a month.

24. He gave evidence that on one occasion he was hanging some curtains standing on a stool about 18 inches to two feet high. His legs gave way with pins and needles and he fell. He stayed in the same position for about 3 days. I am satisfied that he was taken to Manly Hospital by his brother. The incident was corroborated by the plaintiff's brother and by Ms Rolleston and I see no reason to doubt that it happened, bizarre as it sounds. He had to be helped to the toilet. Mattresses were placed on the floor for him in the position where he had fallen and there he remained, save for the trip to the hospital, for three days.

25. In the summer of 1988/89 Mr Bones returned to Australia from England. He rented the plaintiff's brother's house, which was vacant because his brother had gone to Byron Bay. Mr Bones asked the plaintiff to work for him as his assistant doing special brickwork. He actually pressed the plaintiff to assist him. For some little time at the end of the summer period the plaintiff did so, but he was unable to work every day because of the lower back pain and the pain in his legs. He tried his hardest but was unable to do it. He worked for about two weeks all told and received $8 per hour.

26. Recently he moved house to Annandale and with the assistance of his family, Ms Rolleston and some friends, was able to transport his furniture there. He agreed in cross-examination that he lifted bags of cement from time to time while working around his brother's house.

27. He said he takes a pain relieving, sleep-inducing drug called Mersyndol and that he takes four to ten tablets at a time. Ms Rolleston corroborated this evidence in substance. He also gave evidence that he drinks port or rum, at the same time taking a couple of Mersyndol tablets, to enable him to go to sleep. So far as his knee is concerned, he has bad arthritis in the left leg in wet weather. He cannot stand only on his left leg in the shower because he tends to fall. He has a limp on the left side which he has not had before. Ordinarily the knee is stable but sometimes, if he has to bend it, it aches, and as he put it, "it does of kind of grind and crunch". He says he has a constant lower back ache and he gets pains down the back of his legs. His feet become warm and then he gets pins and needles up both legs. Every morning he has problems with his neck.

28. The plaintiff was a good long distance runner while still at school but after the accident he was no longer able to engage in that activity.

29. Counsel for the defendant submitted that the variations in the histories given several doctors who examined the plaintiff, either on his own behalf or on behalf of the defendant, meant that I should reject his claim that his back condition followed upon and was a consequence of the accident.

30. The plaintiff saw Dr Ferguson on 13 July 1983. He gave a history that he developed lower back pain the day after the accident and had suffered from chest pains since the accident. Elaborating on this, he said that he had had pain in the lower back since the accident for one day twice a week on average. The pain was generally brought on by repetitive stooping or heavy lifting but it had sometimes been present when he woke in the morning. It was aggravated by back movements, lifting and carrying, walking, running, getting up from or down to a chair or bed, turning over in bed or jarring his back. Since the pain began he has had a sensation of pins and needles in the back of his left thigh at times which had been relieved promptly by activity. There had been no change in his lower back pain or the sensation of pins and needles in the left thigh since the accident. He told Dr Ferguson that he was off work for four weeks after the accident and since then had had an additional two weeks away from work including single days and one week after arthroscopy was performed on his left knee. He had had difficulty performing his work owing to his left knee and lower back pain.

31. On examination the plaintiff demonstrated slight lower back pain at the limits of flexion, extension and lateral flexion of his back. Dr Ferguson said of the lower back injury that it was the more important of two spinal injuries which he had received, was probably based on a congenital fault in the stabilising mechanism of the vertebrae in question and may have existed in lesser degree prior to the accident but since the accident had been symptomatic and almost certainly greater in degree due to if not solely due to the accident. He considered the condition uncorrectable but that it could be stabilised in its present or increasingly displaced position by surgical fusion of the L5 and S1 vertebrae if that was justified by his future symptoms.

32. The plaintiff told Dr Andrea, who examined him on behalf of the defendant, that his lower back had pained since the accident. He also said that the plaintiff told him that when he went back to work as a bricklayer, three months after the accident, he worked for about one week and developed severe low back ache. This does not accord with the history given other doctors, but he apparently went on to tell Dr Andrea that the ache had been present on and off ever since the accident. It was brought on by any activity such as lifting, vacuuming and mowing lawns and limited his bending. His legs started shaking if he lifted very much, he suffered pins and needles in the right thigh and, when examined in 1989, his condition had been deteriorating over the past three years.

33. Dr Andrea concluded that the plaintiff had an abnormal lower back with a congenital deficiency in the fifth lumbar vertebra allowing it to slip forward on the first sacral vertebra. This showed very clearly on an X-ray photograph, Exhibit 2. He described the condition as common and a very common cause of back ache, although it could be present without very much, or indeed, as I am satisfied, without any pain until rendered symptomatic by some external cause.

34. In Dr Andrea's opinion the plaintiff had a back which was very unsuited to work as a bricklayer and he was surprised to hear that he had not suffered from some pain before the accident. He too thought that the plaintiff needed fusion of the L5-S1 disc to stop any further slip forward and would be surprised if he were not forced to have the operation at some future date.

35. The plaintiff told Dr Skapinker, who also examined him on behalf of the defendant, that in the accident he sustained an injury to his back. Dr Skapinker reported that the plaintiff had come to work and live in Sydney at the beginning of 1983, had worked for a few days a week "on and off" and noted that he began to suffer back problems and started "locking up". He said he then looked for work and was offered employment but employers would not keep him because of his bad back. Dr Skapinker said that the plaintiff went back to Canberra at the end of 1983 where he stayed and saw doctors for his back and says that in all he saw approximately 50 doctors. I find this statement inexplicable and unacceptable. Certainly the plaintiff did not see 50 doctors or anything like that number.

36. Unfortunately Dr Skapinker was unable to be present to give evidence due to an air transport strike. In a report furnished on 20 November 1986, the day on which he first saw the plaintiff, he stated that in his opinion the plaintiff was fit for his pre-accident employment with no restrictions and had made a good recovery. He reviewed the plaintiff two years later and, reporting on 29 November 1988, said that nothing was demonstrated at the later examination to cause him to change the opinion expressed in his earlier report. He thought the plaintiff's knee injury had completely resolved with no ongoing disability of either leg and he was unable to demonstrate any signs of ongoing pathology in respect of the plaintiff's back which might be causing symptoms. He considered he showed signs of malingering. Nowhere in his reports does he make reference to the condition of spondylolisthesis from which I am satisfied that the plaintiff was suffering at all material times, including the dates when he was examined by Dr Skapinker.

37. In March 1981 Dr Stubbs, an orthopaedic surgeon, had examined the plaintiff in respect of multiple minor joint aches and pains together with senations of multiple joint subluxations. He could find nothing to account for those complaints on examination but considered that his rapid increase in height, some eight inches in the previous nine months, apparently occurring concurrently with the onset of the symptoms, demonstrated that the plaintiff was then suffering from growing pains and that there was nothing to be alarmed about.

38. Dr Stubbs examined the plaintiff again on 21 December 1983. He was complaining of two problems, that relating to his left knee and that relating to his back symptoms. He told Dr Stubbs that since mid-1983 he had been developing low back pain with some pins and needles down the left thigh but not below the knee and had seen Dr Robson concerning that. Dr Stubbs diagnosed a symptomatic spondylolisthesis and recommended that he should change occupation. He did not think then that there was any solution which would allow the plaintiff to continue bricklaying even with a successful spinal fusion, which he thought would be a very questionable basis for a lifetime of laying bricks.

39. It will be seen that the history of the onset of pain which he gave Dr Stubbs differs from that which he gave Dr Robson.

40. Dr Spina, a neurologist, who examined the plaintiff on behalf of the defendant, recorded part of his history as, "He ... remained home for a 3 week period. After this he returned to full duties but stopped after 6 weeks as he was troubled by back and left knee pain". This is not inconsistent with the plaintiff's having suffered from back pain since the accident.

41. I do not doubt that the plaintiff attempted to describe honestly all the events which had happened since 1982. His evidence was borne out in part by that of his brother and that of Ms Margaret Rolleston, witnesses whom I found to be very impressive and whom I had no hesitation in accepting.

42. Despite the differences in his accounts apparently given the several doctors, I am satisfied that the plaintiff's back condition was rendered symptomatic within a day or so of the accident and that on the balance of probabilitiesthe symptoms and his continuing back pain are to be attributed to the accident.

43. The plaintiff is not, in my opinion, particularly intelligent. This is demonstrated by his school record. In particular, I am satisfied that he suffers from a reading disability which required extra attention to be devoted to his acquisition of reading skills when he was at school. One detects in the report given by Dr Skapinker a lack of any empathy between the plaintiff and the doctor, who formed the clear view that the plaintiff was malingering. He referred in his reports to calluses which he found present on the plaintiff's hands. But I do not doubt that the plaintiff did some physical work sufficient to account for these calluses and this work he acknowledged that he had done. I think also that the plaintiff did not seek medical advice in respect of his lower back condition because he accepted that condition as one of the ills to which bricklayers are heir. I note too that the general attitude of his family towards illness seems to have been one of stoical indifference as demonstrated by the fact that during one year the medical bills for the family consisting of a man of his wife and six sons amounted to $11. I think this accounts largely for the plaintiff's apparent failure to seek medical advice in respect of his condition much earlier than he did and to continue with medical treatment once he had first made contact with doctors concerning his conditions.

44. I am also satisfied that the plaintiff made no money out of his musical activities. It seems that in the modern music scene in Australia many are called but few are chosen and of those that are called many spend considerable amounts of money and operate at a loss in the hope that they may eventually find fortune as a result of it.

45. I do not think that the plaintiff would in any event have been able to continue a career as a bricklayer. Dr Robson considered that he might have gone on beyond age 35 doing bricklaying work despite his spondylolisthesis had it not been rendered symptomatic. Dr Andrea expressed less optimism. On the whole I think I should accept that but for the accident the plaintiff would have been able to continue as a bricklayer until he reached the age of 30 but not thereafter. Time and repetitive bending and lifting involved in bricklaying would, I think, have meant that the condition would have been rendered symptomatic in any event, even had the motor vehicle accident not intervened. It follows that the defendant's liability for the plaintiff's future economic loss and general damages for pain and suffering in respect of his back would cease at that point.

46. It is difficult to assess what the plaintiff has earned in the last 7 years. I make allowance for the sums shown in copies of income tax returns which were tendered in evidence, bearing in mind that the plaintiff admitted that he had not, in respect of the returned income, set out the whole of his income as received.

47. Doing the best I can on the material available to me, I think I should assess the plaintiff's net earnings from the date of the accident to date at $15,000. Taking the figures given in Exhibit N as a guide, I find that his past economic loss amounts therefore to $78,850. From this I make a deduction of 15 percent to allow for the contingency, a very real circumstance in this case, that he would not have been able to work all the time because of the possibility that his back may have become symptomatic. For past economic loss, therefore, I allow $67,000.

48. For future economic loss I proceed on the basis of a net loss of $363.72 a week. This includes a component for fares which one would expect would have been spent as part of the expenses of work, but that expenditure is balanced, I think, by the recent increase in wages as a result of the national wage case. I allow, therefore, $99,295, but, again making allowance for unfavourable contingencies, I reduce that amount by approximately 15 percent to $85,000.

49. Out of pocket expenses are agreed at $1,507.43. For general damages I allow $25,000. These relate more particularly to the plaintiff's spinal condition since I think the knee injury has healed with little significant residual disability. For interest I allow $43,000.

50. There will be judgment for the plaintiff for $221,507.43.