Sime Cirjak v Peter Beggs [1990] ACTSC 39 (22 October 1990)

SUPREME COURT OF THE ACT

SIME CIRJAK v. PETER BEGGS
S.C. No. 1160 of 1987
Damages

COURT

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

CATCHWORDS

Damages - action for personal injuries - no new statement of principle.

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
22:10:1990

Counsel for the plaintiff: Mr G. Stretton

Solicitors for the plaintiff: Snedden Hall and Gallop

Counsel for the defendant: Mr C.P. Crittle

Solicitors for the defendant: Crossin Power Haslem

ORDER

There be judgment for the plaintiff in the sum of $130,764.21.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 29 August 1986. He was the driver of a motor vehicle stationary in Dudley Street, Yarralumla, at the intersection of that street with Novar Street. The defendant drove his vehicle into the back of the plaintiff's vehicle. The impact was not so severe that the damage to the plaintiff's vehicle prevented him from driving it. The plaintiff felt shaken up at the time, but did not suffer any obvious injury. He exchanged particulars with the defendant who was somewhat off-hand about the matter and did not want to report it to the police. The plaintiff drove on to his work place at the Royal Australian Mint at Deakin, but on arrival was so upset that his supervisor advised him to go home. On the way home he called in at a service station at Yarralumla where he chanced to see the defendant. The defendant offered to pay the plaintiff for the damage to his vehicle. There was no evidence as to the exact damage nor as to how much it cost, except that the cost was much more than $200.

2. Although liability was not admitted, the defendant called no evidence and counsel did not address on the issue of liability. I have little hesitation in concluding that on the probabilities the defendant failed to exercise reasonable care to ensure that his vehicle did not collide with the stationary vehicle of the plaintiff.

3. I pass on to the question of damages.

4. The plaintiff was born on 28 August 1929 in present day Yugoslavia. He attended school until the age of 13 or 14 and followed a variety of skilled and semi-skilled occupations before coming to Australia in July 1957 as a refugee from Trieste. He almost immediately took up residence in Canberra and has lived here ever since. In the earlier years he again followed a variety of unskilled and semi-skilled occupations, clearly showing a degree of initiative as he progressed from one job to another. He married his wife after she came out from Yugoslavia in 1961 and they have two adult daughters. In 1968 he was working as a metal worker with an engineering company and fell through a ceiling injuring his lower back. He spent about a fortnight in hospital and was off work for about two months. On 12 November 1968 he joined the employ of the Royal Australian Mint as a plant attendant, being responsible for the maintenance of boilers, water pumps and the like.

5. I had no difficulty in accepting the plaintiff as essentially a witness of truth. Much of what he had to say was corroborated by the evidence of his wife. He appeared to me to be an intelligent man and proud of his work record, previous progress in life and previous work capacity. He said that the effect of the low back injury in 1968 did not trouble him greatly in the later years although he never recovered from it completely. In any event, according to the evidence, it did not impose any restriction on his working capacity. In 1981 he suffered a hernia injury whilst moving drums, but this has no relevance for the purposes of the case.

6. Over the weekend following the injury on 29 August 1986, the plaintiff continued to be "shocked and shaken". On the Monday he went back to work and whilst at work there was an occurrence in which he felt a sudden and extreme pain at the back of his neck "like an Indian arrow". More than a week later on 10 September 1986 he consulted his local practitioner, Dr Lai, who prescribed ointment, pain-killing drugs and recommended physiotherapy, which was carried out at Royal Canberra Hospital. The plaintiff continued to complain of pain in his neck. X-rays taken on 25 September 1986 indicated no disc narrowing or other abnormality. On 7 October 1986 he was referred to Dr Danta, a neurologist. By that time the pain in the neck had got worse and from being intermittent it became continuous, according to the plaintiff's complaints to Dr Danta. Physiotherapy and other conservative treatments were continued. The plaintiff continued to see Dr Lai and Dr Danta at regular intervals but continued working as before. When reviewed by Dr Danta on 5 March 1987, the plaintiff complained of aggravation of neck pain when working in the garden and carrying heavy loads. Dr Danta at that stage supplied a certificate recommending that the plaintiff not be given duties involving the carrying of heavy loads. By that time the plaintiff was exhibiting to Dr Danta signs of frustration and inability to adjust emotionally and psychologically to the persisting pain.

7. Towards the end of 1987 the plaintiff felt that his condition was getting worse and on one occasion he experienced severe pain at the back of his neck when lifting bags of cement whilst working overtime on a Saturday.

8. Dr Keiller saw the plaintiff on 2 October 1987, apparently at the request of his solicitors. The complaints to Dr Keiller indicated that the condition was worse than it had been, with pain felt most on full rotation on either side with difficulty in looking around in order to drive a car in reverse, interference with sleep because of neck pain and pain occasionally radiating down both arms. On examination the C5-6 and C6-7 levels were found to be tender and there was marked restriction of movement in all directions. According to Dr Keiller the plaintiff did not appear depressed at that stage. Dr Keiller thought that the plaintiff had suffered a soft tissue type injury which had not yet settled down and that it was essential that the plaintiff "not be allowed to become depressed, and that his genuine symptoms be treated with the respect they demand".

9. However, the plaintiff's condition did not improve. Although there is a suggestion in a medical report of Dr Danta dated 27 May 1987 that the plaintiff lost a few days from work because of his neck condition, there is no other evidence to support this and there is no claim that the plaintiff in fact lost any time at all from his work until February 1988. It was then that, according to him, he ceased to work overtime, the reason being that he was simply not able to carry out overtime work without aggravating his neck condition. Documentary evidence from the Royal Australian Mint shows that some irregular overtime was worked in March and April and possibly May 1988.

10. Associated with the loss of overtime was marked deterioration in the plaintiff's condition. By 4 March 1988 he was wearing a collar. On that date Dr Danta expressed the view that the prognosis was poor and the plaintiff was likely to continue with chronic pain for many years if not indefinitely. I interpolate that if that information or if that expression of opinion was related to the plaintiff then it would hardly have assisted his tendency to depression.

11. There was a significant development in the history when the plaintiff was advised by a letter from the Controller of the Royal Australian Mint dated 26 August 1988 that in effect the plaintiff's position at the Mint was to be abolished and the plaintiff was to be transferred to the Production Section. The plaintiff does not appear to have been consulted on this development and although he did not say so in his evidence, his statements to the doctors over a considerable period of time strongly suggest that he found the transfer to other activities somewhat demeaning. At first he was moved to the Proof Coin Section, and subsequently he was moved around to various other positions in the Mint. According to the plaintiff, all the work which he was required to do involved bending of the neck which he found painful.

12. On 27 April 1988 the plaintiff was examined by Dr Colin Andrews, a neurologist, who carried out nerve conduction studies which Dr Andrews found suggested problems at the C6-7 and L4-5 levels.

13. Dr Corry, a rehabilitation specialist, examined the plaintiff at the request of Dr Danta originally in February 1988 and later in July 1988. When appraised of the result of the test carried out by Dr Andrews, Dr Corry then referred the plaintiff to Dr Newcombe, a neurosurgeon. By that time it was becoming apparent that the plaintiff was exhibiting some resentment towards the medical practitioners. Dr Lai continued to prescribe analgesics. Dr Newcombe first saw the plaintiff on 14 June 1988 and it appears that no change in the conservative treatment was recommended at that stage.

14. In October 1988 the plaintiff ceased to work full-time and continued in part-time work at the Mint. There is very little evidence on this.

15. A CT scan done on 17 November 1988 revealed narrowing of intervertebral foramina at 3 cervical levels, although a myelogram taken about the same time did not reveal anything further. The question whether the plaintiff might submit to surgery was raised, by whom it is not clear. At that stage Dr Newcombe advised against surgery. The plaintiff, however, heard about magnetic resonance studies and went to Sydney to have them carried out. They revealed disc herniation at the C6-7 level. By that stage the plaintiff was complaining of continuing pain in the right arm as well as in the neck and Dr Newcombe thought that this (no doubt in light of the MRI studies) was sufficiently severe to warrant surgical treatment. According to the plaintiff's evidence, the pain was so bad that he was keen to have surgery. On the other hand, the medical reports suggest that he was ambivalent and apprehensive about surgery. In any event, Dr Newcombe performed a Cloward procedure operation at the C6-7 level involving the removal of an intervertebral disc, freeing of the nerve root and insertion of a graft taken from the right iliac crest.

16. Unfortunately, the operation did not turn out to be a success. The plaintiff was discharged on 24 December 1988 in great discomfort. Upon his arrival home he was able to do very little and his wife had to assist him to shower and dress. He said the pain was "impossible to describe".

17. In May 1989 he returned to part-time work for three days a week, working one and a half hours per day for three to four weeks and then two and a half hours per day for two to three weeks. The job was in the sales section of the Mint and involved very light work concerning the sale of coins and the like. Ms. Rosemary Eden, a rehabilitation consultant in the service of the Royal Australian Mint, assisted the plaintiff to obtain suitable ergonomic furniture, but the work still involved bending of the head to the extent that that caused the plaintiff severe pain. The pain in his neck continued and was aggravated by him having to bend his neck at work and eventually he decided that he was unable to carry on. On 5 July 1989 he ceased work altogether. He was retired from the Australian Public Service on the ground of invalidity on 28 June 1990.

18. During 1989 the prospect of further surgery was raised, and a further opinion obtained from Dr Chandran, but that opinion is not in evidence. Dr Corry reported on 22 December 1989 that the plaintiff had long-term chronic disability due to degenerative cervical spondylosis and remained unfit for work without the likelihood of significant improvement. A review by Dr Keiller on 11 May 1990 found the plaintiff obviously depressed and suffering from pain which was to him totally disabling. Dr Keiller did not exclude, however, a significant degree of exaggeration. Nevertheless, Dr Keiller felt that the plaintiff was permanently disabled, would not return to the workforce and would be involved in future expense for medication and any other conservative treatment such as acupuncture and massage as might give relief. Dr Newcombe thought that the plaintiff should be able to attend to light tasks at the Mint but would not be able to undertake anything involving heavy lifting and bending.

19. Dr Saboisky, a consultant psychiatrist, saw the plaintiff on 15 November 1989 and found there to be a significant degree of depression as well as a significant psychological component to the pain and disability which arose from various factors including the failure of the operation, the subsequent status of being an invalid and the perceived mistreatment by the administration at the Mint, all of which "led to a psychological decompensation with a pervasive sense of futility, hopelessness and pessimism about the restoration of his health". Dr Saboisky recommended an increase in the anti-depressant medication.

20. Doctors who had examined the plaintiff on behalf of the defendant did not take such a pessimistic view. Dr Vanderfield, a neurosurgeon, saw the plaintiff first on 6 December 1988. He thought at that stage that there was no pathological evidence of continuing disability due to the injury in August 1986 and he was opposed to surgical intervention. However, the fact was that the plaintiff underwent surgery and when Dr Vanderfield re-examined the plaintiff on 3 October 1990 the complaints were that the plaintiff was getting worse. Dr Vanderfield was not surprised that the operation failed to relieve the symptoms because he did not think there were any convincing physical signs of any organic pathology. He thought that there were still no objective findings to support the plaintiff's claim that he was incapacitated for all work.

21. Dr Richard Jones of the Department of Rehabilitation Medicine at the Prince Henry Hospital examined the plaintiff on 6 December 1988, when the plaintiff appeared to be in occasional stress when talking to Dr Jones who had otherwise established a "satisfactory rapport" with him. Dr Jones came to the view that as a result of the injury on 29 August 1986 the plaintiff suffered muscular and ligamentous injuries to his neck and back which added to advanced degenerative arthritis which resulted in the symptoms which the plaintiff had experienced. Dr Jones also thought that there was objective evidence of neurological involvement which had led to the advice that he should have surgery. The plaintiff was then concerned and anxious about all that as well as his future at the Mint. Dr Jones found the overall situation to be "indeterminate" until after surgery. Dr Jones did not see the plaintiff again.

22. Ms. Eden, the rehabilitation consultant at the Royal Australian Mint, told of the plaintiff's complaints of headaches and pain and difficulty he expressed in coping with the various types of light work that was provided for him. He was advised to stand and sit as he chose with regular breaks at half hourly intervals. The plaintiff was also invited to use the couch in Ms. Eden's surgery for the purpose of resting from time to time. It is abundantly clear from the evidence of Ms. Eden, who had in her charge "all the rehabilitees" at the Mint, that the plaintiff considered that he was incapable of carrying out the very lightest of tasks available.

23. Ultimately the critical issue in the case is the acceptance or otherwise of the plaintiff. As I have already indicated, I found him to be a witness of truth. On the other hand, as the medical evidence suggests, there may be an element of exaggeration in the sense that the plaintiff may have described his symptoms in terms more colourful than those of a person with a different disposition. On the probabilities, however, I am of the view that the failure of the operation in December 1988 in particular left the plaintiff with a substantial inability to cope psychologically with his situation. It may well have been that the plaintiff's condition might not have been so bad if he had continued with conservative treatment rather than undergo the operation. It also appears that the plaintiff's own attitude perhaps contributed to the very advice that he submit to surgical procedure.

24. The plaintiff continues now as he has for the last twelve months or so, with depression, low self-esteem, wearing a collar during most of the day, suffering from constant pain in the neck which is aggravated by activity, convinced that he is completely unable to work and is on continuing medication for pain and depression.

25. My assessment and the weight of the medical evidence supports the proposition that whatever the plaintiff's present pathological condition, it was triggered by the injury on 29 August 1986. Whilst it is notable that the plaintiff continued to work at his previous occupation, with overtime, for approximately eighteen months, his condition did deteriorate during that time. The readjustment of his duties at work aggravated the problem, but it aggravated a condition which had been brought about by the injury for which the defendant is responsible, and I do not think that the new arrangements at the Mint amounted to an intervening cause which relieves the defendant of responsibility for what occurred afterwards. The defendant has also, in my view, to accept responsibility for the operation in December 1988 and its aftermath, which brings the situation to what it was in approximately May 1989 through to the present time. For practical purposes, I do not think that the plaintiff can be regarded as having any remunerative work capacity at all. I do not accept the defendant's contention that the plaintiff has used the situation as a convenient method of retiring early. He was highly motivated towards his work and as a result of his injury he lost that motivation to the extent that he genuinely perceives himself as incapable of work, although it may be that in less vulnerable personalities a disability such as his would still permit of some work activity.

26. I accept the plaintiff's evidence that it was his intention to work through to the retiring age of 65 years and that he would have done so if he had been physically able. On the other hand, it must be accepted that he had a deteriorating spinal condition due no doubt partly to natural degeneration and due also to the injury of 1968, and this may well have necessitated retirement before the age of 65 years, although on the probabilities it would not, in my view, have necessitated of itself retirement by the present date.

27. The plaintiff says that he is no longer able to work in his garden and tend to other domestic chores in particular painting the house and attending to the maintenance of his motor car. He has also become something of a social recluse. I think that when the worry of the litigation settles down he may be able to pursue more of his former activities than he does at the present time. He is a sensitive man and his lowered self-esteem has fed upon itself particularly as it affects his relationship with his wife. Nevertheless, Mrs Cirjak remains a dutiful partner and massages his neck for about half an hour day and evening. A claim is made to this extent under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 and a claim is also made in that regard for the work that Mrs Cirjak does in the garden which would otherwise have been done by the plaintiff. I think that this aspect of the case cannot be disregarded, but on the other hand it does not lend itself to mathematical calculation as a quantifiable periodical loss measured by rates payable to gardeners, cleaners, nurses and the like. This aspect of the case will be catered for in the award for general damages. So too will be the component for continuing medication and associated expenses such as physiotherapy. No award will be made for future hospitalization or surgical intervention.

28. Past medical and hospital expenses are agreed at $14,775.78. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is also agreed at $5,938.43.

29. The data necessary for the calculation of past and future economic loss, including loss of superannuation benefits is set out in a report of Mr G.W. Davis, an economist and accountant. The calculations take into account the assumption that the plaintiff would but for his injury have continued to have received overtime in the same proportion to his regular weekly wage as it was immediately prior to February 1988. I do not think that this assumption is justified. The plaintiff had worked for a considerable period receiving overtime, but that was in his capacity as plant attendant. There is no evidence that overtime would have been available in the various work categories in which he was placed after he ceased to occupy the position of plant attendant. The plaintiff is, however, entitled to something to compensate him for the loss of a chance to work overtime if it had been available, taking into account also of course that he has been growing older all the time, that with the general downturn in the economy opportunities for overtime are likely to have been reduced and that there have been cutbacks generally in governmental expenditure. The calculation of what the plaintiff would have received by way of salary but for injury, to 31 July 1990, according to Mr Davis, is approximately $69,500 net. That includes overtime. As far as I am able to calculate as a matter of arithmetic, the overtime component of this is about $10,500 net. In lieu of that component I think the plaintiff should receive $5,000 for the loss of the chance of overtime. During the period in question the plaintiff in fact received about $37,500 net to 31 July 1990. Adding a further say $3,000 for the period between July and the present (and omitting the overtime factor), I think a proper award for the past loss is $30,000.00.

30. As far as the future is concerned, the current base salary for a person in the position that the plaintiff might have occupied but for his injury is about $412 per week gross, or about $315 net per week. Using a multiplier of 200 to take the plaintiff to age 65, this gives a figure of $63,000. The conventional discount for vicissitudes should, in my view, be increased because of the age of the plaintiff and his pre-existing degenerative spinal condition and I would award the plaintiff a round sum for future loss on the basis just mentioned of $50,000.00 to which I would add another $2,000.00 for loss of the chance of overtime in the future.

31. The plaintiff was a contributor to a provident account superannuation scheme which gave him the option at the time of a lump sum based upon the plaintiff's contributions plus a figure equal to twice the plaintiff's contributions to be paid by the employer. The plaintiff's weekly contribution was $19.20 and Mr. Davis calculates that assuming the plaintiff worked to age 65 the employer would have contributed about $8,000.00 and the plaintiff would have received interest on the total of his own plus the employer's contributions. The employer's contributions and the interest on total contributions would have amounted to a net benefit after tax of about $9,340.00. Using an 8 percent discount table to calculate the present value of that sum payable when the plaintiff would have turned 65 gives a present value of about $6,800.00. Again, however, that has to be discounted for vicissitudes and I would allow the plaintiff $5,000.00 for the loss of superannuation benefits.

32. For pain and suffering and the other matters to which I have referred in relation to general damages, the plaintiff does present as a somewhat sorry figure. On the other hand, it has to be remembered that he was able to continue at work with overtime for some eighteen months after his injury. He is a man now aged 61 years and the sum for general damages for that reason must be substantially lower than that which might be awarded to a person incapacitated in the prime of life. I think a proper sum for general damages is $17,500.00, as to which I apportion $10,000.00 to the past for the purpose of interest. I note also that net worker's compensation payments paid to the plaintiff amount to about $25,000.00, which leaves a difference of $5,000 between that figure and the sum I have awarded for past loss of earning capacity. The plaintiff will therefore be awarded interest also on $5,000.00 in respect of loss of past earning capacity. Interest on the general damages component is calculated at the usual rates set out in the Practice Direction and the result reduced by half, giving a figure of $3700.00. Interest on the loss of past earning capacity component is calculated in the same way and gives a figure of $1,850.00.

33. The total award for damages may be summarised as follows:
Past loss of earning capacity $ 30,000.00

Future loss of earning capacity $ 52,000.00
Loss of superannuation benefits $ 5,000.00
General damages $ 17,500.00
Past medical and hospital expenses $ 14,775.78
Fox v. Wood component $ 5,938.43
Total: $125,214.21

34. The total award for damages appears to be appropriate having regard to the case overall. With interest added of $5,550.00 there will be judgment for the plaintiff in the sum of $130,764.21. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.