Robert Spasenoski v the Commonwealth of Australia [1990] ACTSC 34 (30 August 1990)

SUPREME COURT OF THE ACT

ROBERT SPASENOSKI v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1904 of 1986
Damages

COURT

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

CATCHWORDS

Damages - action for personal injuries caused by negligence.

HEARING

CANBERRA
30:8:1990

Counsel for the plaintiff: Mr. G. Stretton

Solicitors for the plaintiff: Gallens Crowley and Chamberlain

Counsel for the defendant: Mr. F.G. Parker

Solicitors for the defendant: Australian Government Solicitor

ORDER

There be judgment for the plaintiff in the sum of $353,414.10.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 13 October 1984 when he was in the service of the Australian Federal Police. At about 7 p.m. the plaintiff intended to refuel a police patrol car at the Belconnen Police Station. The petrol bowser was situated within a concrete brick structure. Access to the bowser was through a roller door. The only existing handle on the roller door was at the bottom right-hand side of the shutter. The plaintiff attempted to lift the door by standing at an angle to it and bending and pulling on the handle with his right hand. When the door was at about knee height, according to his evidence, it jammed. He immediately felt muscular spasms in his back. He was unable to straighten and in a bent position made his way over to the police vehicle. His colleague, Constable Ahrens, proceeded to open the door, and the two men worked through the shift. The plaintiff continued to work for the following week, during which time he said that he continued to experience a lot of pain in his lower back, but hoped that it would go away in due course. He had previously made arrangements for recreation leave. He took that leave and went as intended to Lake Eucumbene for the purpose of fishing. However he lasted only three days or so and cut the trip short because of what he described as "intense pain". He returned to Canberra and saw his local practitioner, Dr Fitt, as soon as an appointment could be arranged. That was on 31 October 1984. There is some difficulty in fitting the dates together to fully coincide with the plaintiff's evidence, but I am quite convinced on the probabilities that the injury and its immediate aftermath occurred in the way in which the plaintiff said it did. Constable Ahrens was not called, and there was no explanation as to his absence. I draw no inferences adverse to either party because of his absence.

2. Constable First Class Weir gave evidence that he was stationed at the Belconnen Police Station from 1982 to mid-1984. He said that the roller door in question was a very heavy door, and that to raise it it was necessary to get down on one's knees and "jiggle it up". He said that at least twice he bought a spray lubricant which he sprayed into the channels on either side of the door, into the roller mechanism and into anything looking as if it might hinder the movement of the door. Superintendent Bradley was the officer in charge of the Belconnen Police Station from 1981 to 1986 (except for a period between 12 July and 5 December 1984). He made arrangements in December 1983 to have a similar door to the petrol bowser replaced. He received complaints about the door in question prior to 12 July 1984. Originally there had been a single handle in the middle of the base of the door, but because of the weight, Mr. Bradley had that handle replaced by two handles, one on each end at the base of the door. He also had two rubber stops (later replaced by metal angle brackets) placed on the door about 50 cms above the base. This was to prevent the handles being broken off or damaged when the momentum of lifting the door carried the base up into the rolled section. The momentum was such as to cause damage to the surrounding brickwork and timber work and to cause some of the end clips at the ends of the slats to fall off.

3. Mr. Peter McEwan, the Assistant Director of General Services of the Australian Federal Police in 1984, wrote to the Department of Housing and Construction after receiving complaints about the roller door, but it was replaced with a door which was virtually identical. In his first letter of request of 24 February 1984, he specifically asked for "a lighter door that was easy to operate". However, the replacement door appeared to be of the same design and weight and he wrote again on 22 May 1984 seeking a further assessment of the problem as a matter of urgency. What was eventually done is not clear and the defendant called no evidence on this aspect. However, I draw the inference that the door that was there on the day the plaintiff received his injury was the heavy door of which Mr. McEwan had made complaint in May 1984. Its weight and possibly its damaged condition meant that someone in the position of the plaintiff was likely to be unable to raise the door without the exertion of a great deal of effort made from a bending position. Furthermore, on the day on which the plaintiff received his injury, the door could be raised by one handle only, which meant that it was likely to be pulled out of alignment during the lifting operation, making it all the more difficult for the person trying to lift it. The possibility that a person in the position of the plaintiff in those circumstances would suffer some injury to the spine was a real likelihood and much more than a fanciful possibility. The defendant was therefore under a duty to take some steps to minimise that risk.

4. Mr. Neris Kazys Pilka, who has been in the business of selling garage-type doors since 1976, gave evidence and furnished a report based upon his inspection of the roller door in position on 20 or 21 April 1986. I am convinced on the probabilities that the door he inspected is one and the same as that in position on the day of the plaintiff's injury. He said that the door is of much heavier construction than that of the ordinary domestic garage door, so heavy indeed that it would be expected that a chain operating mechanism would be used for lifting and lowering. However, apparently such a mechanism can be operated from inside the doorway only, and that was not possible at the Belconnen Police Station petrol bowser. I accept Mr. Pilka's evidence that the door in question was likely to become more difficult to lift because of the missing handle, the impact to which it was repeatedly subjected by the use of angle bracket stops, and the likelihood that the end clips or some of them would fall off. As Mr. Pilka said, all these difficulties could have been avoided by the installation of a roller door of the normal domestic weight. The cost of installing such a door, he said, would be less than $350. I am not convinced that it was necessary for the security of the petrol bowser that such a heavy door as the one in question needed to be installed. There was therefore a reasonably practicable alternative for the defendant to adopt, and I think that the failure to adopt it amounted to negligence. There will therefore be a finding of negligence in favour of the plaintiff.

5. The defendant relied on alleged contributory negligence on the part of the plaintiff. Insofar as particulars were given of such contributory negligence, they were that the plaintiff attempted to open the door "in a manner which was neither necessary nor appropriate in all the circumstances". The evidence established indeed that the plaintiff was aware, as apparently was everyone else at the Belconnen Police Station, that the door in question presented particular difficulties for anyone trying to lift it. However, it was not suggested that the plaintiff or anybody else had been given any instruction as to the appropriate way in which to lift the door. No doubt the plaintiff might have approached the task in hand differently and instead of standing at an angle to the door, which he did, it might have been more prudent for him to use both hands from a squatting position. However, that is little more than speculation in the circumstances. The duty of care cast upon the defendant is quite different from that borne by the plaintiff. I am not convinced that the defendant has discharged the onus of showing that the plaintiff failed to take reasonable care for his own safety and there will be no apportionment of the damages for contributory negligence.

6. The plaintiff was born in Macedonia, part of Yugoslavia, on 4 August 1956. He migrated to Australia with his parents in 1969. He spent about a year at school after his arrival in Australia. He worked in various unskilled or semi-skilled jobs until he joined the Queensland Police Force in 1976. The following year he joined the Commonwealth Police and transferred to the Australian Federal Police in 1978. He worked in various general policing duties, received a promotion whilst in the traffic section and held the position of Senior Constable at the time of his injury. The evidence shows that he rendered satisfactory service in the Force, and I accept his evidence that he looked forward positively to continuing his career in the Force.

7. At the initial consultation with Dr Fitt the plaintiff was complaining of pain radiating up the back into the neck and down into both buttocks. After that consultation with Dr Fitt, the plaintiff continued on recreation leave. X-rays taken on 7 November 1984 showed narrowing of the L5/S1 disc space. On 14 November 1984 Dr Fitt certified the plaintiff unfit to resume work. Dr Colin Andrews, to whom he was referred in December 1984, formed the view that there was an acute prolapse of the disc.

8. In January 1985 a CT scan was performed which showed degenerative changes at the L4/5 level with some narrowing of the nerve root canal, but no evidence of disc lesion. A lumbar radiculogram was performed on 14 March 1985 without conclusive results. Dr Chandran was then consulted and he conducted a discogram (which the plaintiff described in evidence as the most painful thing he had ever experienced). A discogram at L4/5 Level showed nothing abnormal there. However, Dr Chandran advised the plaintiff that there should be a fusion operation at L5/S1 and the plaintiff agreed. At an operation on 8 July 1985 a fusion was performed as well as decompression of the nerve roots. There was no evidence of any disc bulge and the disc was not excised.

9. There is no question that from some time within a few days of his injury up until the operation and immediately thereafter the plaintiff was totally incapacitated for his work because of low back pain. There is no doubt that the need for operation was a consequence of the plaintiff's injury. However, there is a question whether the only damage to the plaintiff's spine caused by the lifting injury was at the L5/S1 level, a question to which I will return in a moment. The plaintiff made a very good recovery from the operation and was keen to return to his work as a pursuit car driver.

10. On 14 August 1985 the plaintiff reported to Dr Chandran that he had no pain in his back or leg, that he was back swimming and jogging with some loss of weight. Dr Chandran certified him fit to return on 26 August 1985. The plaintiff said in his evidence that he was not entirely free from pain, that he was particularly keen to return to work because he wanted to try driving a new type of car that had just been acquired by the Australian Federal Police. Dr Smyth, the police doctor, certified the plaintiff fit to resume full police duties. Dr Chandran noted in a letter to Dr Andrews and Dr Fitt dated 16 August 1985 that "unlike many other patients in his category, Mr. Spasenoski has been troubling me for the last few weeks, wanting to get back to work".

11. There is obviously a conflict between what the plaintiff told the doctors prior to his return to work on 26 August 1985 about the complete absence of continuing pain and what he told the Court, namely that the pain continued at a level of "four out of ten". After due consideration, I accept the plaintiff's evidence that he was not entirely free from pain in this period, and indeed that the pain in his lower back continued after he resumed work. On the other hand, however, I am not convinced that the plaintiff was reckless or careless for his own safety in this regard or that he failed to mitigate his damage, indeed that point was not taken on behalf of the defendant. I think that if it had not been for the unfortunate incident which followed, the plaintiff would have been careful in his own activities so as to avoid any unnecessary damage to his spine.

12. However, what happened on the evening of 6 October 1985 was that the plaintiff had returned to the Weston Police Centre and was walking in a hallway when he was approached from behind by two constables. One of them called out, it was said in jovial tones, "Spas, you wog bastard". That constable then jumped on the plaintiff's back in what was described as piggyback style, with his legs wrapped around the torso of the plaintiff. The plaintiff said that he did not resist, taking the weight on his own body and with his legs so that he went to the floor finishing up lying on his side. He said that he got up from the floor into a standing position when the other constable repeated the move and jumped on the plaintiff's back. The plaintiff was by this time erect and not anticipating the move in any way. Again he went to the floor, on his knees and over to one side, finishing in a lying position but on that second occasion he felt what he described as a "jab" in the lower back. However, he continued to work the shift and said that he could not remember reporting the incident immediately. He has given an account to the doctors over a period of time which is similar to that he gave in evidence and I find that the incident occurred as he said in his evidence. The plaintiff was scheduled to be reviewed by Dr Chandran in any event on 11 October 1985, and he did not seek any medical attention until that date. The x-rays showed satisfactory progression of the fusion, but the plaintiff's complaint to Dr Chandran was of "mild discomfort" in the sacro-iliac region which had been aggravated by the incident on 6 October.

13. According to the plaintiff's evidence, his pain levelled out after the incident of 6 October 1985 increased it to a level of "7 out of 10". He said that he was experiencing numbness in the right buttock which extended down the right calf. Dr Chandran advised physiotherapy and Dr Fitt put him off work on 23 October 1985. In fact the plaintiff has not worked since then. I find that he has been incapacitated for work since then. His evidence was to the effect that his condition has continued much the same throughout, although the report of Dr Chandran of 19 June 1986 suggests that he reached a plateau at about that time. The plaintiff was invalided out of the Australian Federal Police Force on 1 August 1986. Further discograms were attempted by Dr Chandran on 24 July 1987. No abnormality was detected at L4/5 and the plaintiff was unable to tolerate the pain of further investigation. Nerve conduction studies in August or September 1987 showed no evidence of any nerve root compression or bulging discs. Dr Chandran said in a report of 3 November 1987 that the radiological investigation did not establish a cause for the plaintiff's symptoms. He repeated that view in a report dated 20 April 1988, contrasting the situation then from that following the injury on 13 October 1984 when it was possible to establish by discogram that the L5/S1 level was causing pain. These views were repeated in Dr Chandran's evidence.

14. In addition, Dr Chandran stated in a report of 25 February 1986 that "the second injury is the cause of his present disability". In a report of 20 April 1988 he said as follows:
"The incapacity from October 85 to date is

considered as arising from the incident of 6 October 1985.
Mr. Spasenoski's present condition is due to the
incident of 6 October 85, but the fact that he had
undergone a previous fusion makes him more
vulnerable to an injury. The previous operation was
directly related to the incident of 13 October 1984.
The effects of the incident of October 1984 were of
a permanent nature but corrected by surgery.
The effects of the incident of 6 October 1985 are
now considered to be of a permanent nature.
This man is now totally incapacitated as a result of
the incident of 6 October 1985."

15. These expressions of opinion were put to Dr Chandran in cross-examination and he did not retreat from them. However, in his evidence-in-chief, Dr Chandran said that the gap of two months or so between the operation and the incident of 6 October 1985 was not so long that the healing process at the lumbo-sacral level might not have fully healed. It was possible therefore that the plaintiff's back at that site was more vulnerable to further injury than it would have been without the injury of 13 October 1984. On the other hand, the defendant relied upon the absence of any radiological evidence that there had been any further injury at the operation site and on the complaint by the plaintiff of somewhat diffusive pain rather than pain at the lumbo-sacral level.

16. In a report of 1 February 1988 Dr Corry, a consultant in rehabilitation medicine, expressed the opinion that a fusion operation should unite "reasonably solidly" within the first three months but the full strength would not be attained for up to twelve months. He added that there is some evidence that after fusion procedures there are increased degenerative changes in the levels above or below the fusion, but that such changes are progressive and occur over a number of years. In his evidence Dr Corry also said that the risk of injury to the operation site is greatly increased during the first two months after operation. The history given to Dr Corry was that although the plaintiff returned to work on 26 August 1985, he was still rather fearful of injury and was avoiding all strenuous activities such as riding motorbikes. That is consistent with the plaintiff's evidence and the rest of the material in the case.

17. Dr Arnold Mann, who did not give evidence, but whose report appears to be based upon the facts established by the evidence, expressed the view that it "would have been less likely for the second episode to have caused damage if the first episode and the surgery required for it had not occurred." Dr Mann also expressed the view that "in both cases there has been injury to the discs of his spine". I would interpolate here that I see no evidence to convince me that there was injury to any disc in the incident of 6 October 1985.

18. Dr E.J. Cassar, consultant physician, saw the plaintiff on behalf of the defendant. His report of 28 March 1988 concludes that the plaintiff's problems have been "entirely caused by the working conditions in the Australian Federal Police over the ten years that the plaintiff was so employed". Dr Cassar did not attribute any persisting disability to either of the incidents on 13 October 1984 or 6 October 1985. The value of that report is reduced considerably by its assumption that the latter injury occurred "when the plaintiff forgot his back problems and carried other officers during recreation piggy-back". In a later report prepared after examining the plaintiff on 18 July 1990, Dr Cassar revised the history of injury, noting that the plaintiff claimed that his colleagues jumped on him from behind. Dr Cassar concluded that "it would be unlikely that the incident of 1984 of itself, without the assaults of October 6 1985, would be contributing to current pain disability".

19. A report from Dr Courtenay dated 17 July 1986 and presented on behalf of the defendant, does not deal in any useful way with the relationship between the two incidents and the plaintiff's continuing symptoms.

20. Despite what Dr Chandran and Dr Cassar expressed in their reports to which I have already referred, I have come to the conclusion that there is on the balance of probability a continuing causal relationship between the injury on 13 October 1984 and the plaintiff's disabilities and symptoms as they existed thereafter and continue to the present day and despite the incident of 6 October 1985 and its contributing effect. I do not think that Dr Chandran, in the reports to which I have referred, was referring to causation in the same way as causation is to be treated for the purpose of determining the liability of the defendant. On a consideration of the whole of the material from Dr Chandran, both in his reports and in his evidence, it appears to me that Dr Chandran takes the view that the incident of 6 October 1985 should be considered as the major contributing cause, in the sense that the plaintiff's disabilities thereafter were markedly more severe than what they were immediately prior to the operation in July 1984. However, the evidence of Dr Corry and Dr Mann points more clearly towards the proposition which I find established on the balance of probabilities, that without the injury of 13 October 1984, the plaintiff was not likely to have sustained the degree of injury to his spine which he did in fact suffer in the later incident on 6 October 1985. It is not necessary for the plaintiff to show that the subject injury was the only cause of his continuing disability, nor is it necessary for him to show that it was the major cause. So long as it is a substantial cause or a cause in a real sense that is sufficient, and that is what I find it to have been in fact. Without the injury of 13 October 1984 and without the operation of 8 July 1985 (for which operation the defendant is clearly responsible) then it is likely that the plaintiff would not have sustained that particular extent of injury which he did sustain on 6 October 1985.

21. It is then necessary to determine the extent of the plaintiff's disabilities, the severity of his symptoms, and the way in which those matters resound in damages.

22. After seeing the plaintiff in the witness box and weighing up his evidence in the light of the other evidence, I formed the fairly definite conclusion that he is basically a truthful witness not concerned to exaggerate his symptoms. On the other hand, as one of fairly limited education with no experience for any skilled occupation, he is somewhat bitter about his career path in the Police Force being frustrated. I expect, like the doctors, that he is somewhat angry at the behaviour of his colleagues. He appears to be an intelligent and articulate man, but his motivation to get back into the workforce appears to have been greatly reduced. It is unfortunate that he had to be superannuated from the Police Force as the evidence suggests he is capable of at least some work at a desk. He himself does not suggest that he is incapable of all work. He is clearly unfit for heavy work, work involving prolonged bending or prolonged sitting and standing. He is incapable of carrying out the duties of a pursuit car driver, or police officer on traffic patrol. He has a keen interest in motor cars, and he follows the custom of buying a vehicle which takes his fancy and works on it to increase its value and sells it when he finds another vehicle more attractive. With assistance he has been able to put a new engine in an old car, to carry out most but not all his mechanical repairs and to get under the vehicle in order to change the oil. He gave some limited assistance to a friend who built a low rock retaining wall in the garden. He helped his father excavate some holes for light ornamental fence posts. He has been active in the affairs of the Macedonian church and in addition to carrying out the administrative duties of the president of a church organization, he was physically assisting the tradesmen by handing up tools and collecting lunch, but I am not positively convinced that he engaged in the building operations as it was suggested to him in cross-examination.

23. Prior to his accident the plaintiff engaged in sporting activities such as soccer, indoor cricket and swimming, and manifested enthusiasm for his work in the Australian Federal Police as a motor cyclist and as a pursuit car driver. Such activities are now denied him. His capacity for coping with difficult situations appears to be restricted. Evidence was given that he changed from an easy-going person to a moody one. His wife described him as "hard to put up with" when his back is "very bad".

24. In summary, the plaintiff experiences a high level of pain and suffering due to an interaction between the results of his accident and predisposing personality factors with a substantial lessening of the plaintiff's capacity to enjoy his daily life.

25. I am not convinced that the plaintiff is completely unfit physically for all forms of work even at the present time. However, I think his personality and background are such that with his present lack of motivation he should be regarded as virtually unemployable. I do not think that he has made a deliberate choice to refrain from taking steps to find remunerative work, but I am convinced that when the case is over and when his financial worries have been alleviated to some extent, he will take a more constructive attitude and that he should not be regarded as totally or permanently incapacitated. I think it reasonable that he should be regarded as continuing as virtually unemployable for a period of a year or so from the date of hearing, and that within the following twelve months his undoubted physical capacity should be regarded as attracting an income-earning capacity of approximately $250 per week, bearing in mind that the agreed likely weekly earnings but for injury at date of trial would have been $491.27 net per week. As a member of the Police Force I would expect that his likely retiring age would have been 60 years and so I allow a future loss of earning capacity on the basis of $491 per week for the first year, $350 per week for the second year and thereafter $250 per week for a period of 24 years. On the 3% discount tables these three amounts total $253,749.61. I reduce this by 25 percent to cover the conventional contingencies and the further contingency that this particular plaintiff had a degenerative condition in his back which might at any time have been subject to the sort of injury he sustained on 13 October 1984 and which might have become incapacitating even without injury.

26. The plaintiff's loss of earnings for all the time lost from work from the date of injury until the present time amounts to about $125,000. There should be some slight reduction for contingencies in particular the contingency that the plaintiff was prone to suffer at any time the sort of injury he suffered on 13 October 1984 and which happens to be ascribed to the defendant's negligence. I award $110,000 for the past loss of earning capacity.

27. Past out-of-pocket expenses are agreed at $8,263.89. There is evidence that the plaintiff continues to take pain-killing medication on prescription from his doctor whom he sees for this purpose once every few months. There are no figures before me and I allow for future medical and pharmaceutical expenses in the award for general damages. There is no Fox v. Wood claim nor for interest on past loss of earning capacity.

28. General damages for pain and suffering, loss of enjoyment of life and other aspects are calculated at $35,000 out of which I apportion $20,000 for the past. I include a component for the plaintiff's lost chance of promotion. Interest is awarded on the component for the past on the rates allowed for in the practice direction and the result reduced by half giving an end figure of $9,838.00.

29. In summary, the award will be as follows:

Past loss of earning capacity $110,000.00
Future loss of earning capacity $190,312.21
Pain and suffering and loss of
enjoyment of life $ 35,000.00
Past out-of-pocket expenses $ 8,263.89
Interest $ 9,838.00
Total: $353,414.10

30. On reflection the figure for the damages appears to be appropriate and the plaintiff is to have judgment for $353,414.10. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.