Frank Karamaroudis v John Gerard Scott [1991] ACTSC 11 (27 February 1991)

SUPREME COURT OF THE ACT

FRANK KARAMAROUDIS v. JOHN GERARD SCOTT
S.C. No. 31 of 1988
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Assessment - Cervical spine - Cloward's Procedure at two levels - Continuing Diasability - No Issue Principle

HEARING

CANBERRA
27:2:1991

Counsel for the Plaintiff: Mr G. Stretton

Solicitors for the Plaintiff: Messrs Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr Crittle

Solicitors for the Defendant: Messrs Crossin Power and Haslem

ORDER

Judgment be entered for the plaintiff in the sum of $277,340.00.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on the 15 November 1985.

2. The plaintiff was born in Greece in November 1935. He left school at the age of 14 and then worked at building fishing boats until undergoing his military service.

3. In about 1961 he came to Australia and worked for some time for wages as a formwork carpenter. In about 1963 he went into partnership with another carpenter who came from his village in Greece, and thereafter they worked as subcontract carpenters in the Canberra region.

4. He married in 1963, and had four sons. His marriage broke up when the youngest was about seven, and thereafter he was largely responsible for raising his family.

5. He was very depressed at the failure of his marriage. He had also suffered from depression for some time when his brother was killed in a car accident.

6. Dr Prosser, his general practitioner, noted that he had suffered low back strain in 1965 and 1973, but there was no record of previous neck pain or injury. He had suffered from kidney stones occasionally since July 1983, and was treated for left ureteric calculus in Woden Valley Hospital in March 1986 and right nephrotomy in December 1986.

7. On Friday 18 November 1985 the plaintiff was driving his car on Northbourne Avenue in Canberra. He was wearing a seat belt. He stopped in obedience to a pedestrian traffic light. After a short time the defendant's vehicle collided violently with the rear of the plaintiff's car. The force broke the mountings of his seat. He did not lose consciousness, but found himself lying on his back on the broken seat. He was shocked, but did not notice any other injury at the time.

8. His car was towed away, and he was given a lift home. Over the weekend he was busy with arrangements about the vehicle.

9. On the Sunday night he felt pain in the neck. On the Monday his partner drove him to work but in mid morning the plaintiff was in such pain that his partner took him to see Dr Booth, at Dr Prosser's practice.

10. He did not return to work before seeing Dr Prosser on 28 November 1985. Dr Prosser noted that neck pain and muscle pain on flexion were continuing, and prescribed medication and physiotherapy. X-rays taken on 30 November did not disclose any abnormality.

11. He then returned to help finish the work involved in the contracts on hand. He suffered sharp neck pain, and as soon as those jobs were finished he stopped work. He has not worked since.

12. The physiotherapy was not affording him any relief. In April 1986 Dr Prosser referred him to Dr K.N. Chandran, neurosurgeon. He prescribed Voltaren and more physiotherapy, but in January 1987 the plaintiff complained to him that after initial improvement he was getting worse again.

13. On 13 February 1987 a cervical discogram disclosed to Dr Chandran disruption of the discs at C5/6 and C6/7. The plaintiff suffered the usual discomfort associated with the discogram. Dr Chandran advised surgery, to which the plaintiff agreed after some hesitation, because of the pain.

14. On 20 April 1987 Dr Chandran performed a Cloward's procedure. The discs at C5/6 and C6/7 were found to be ruptured, and were removed and decompressed. Bone grafts were inserted at each level.

15. The plaintiff was in hospital for about 10 days after the operation. He had difficulty in coming to terms with the stiffness in his neck, but noticed that the sharp pain had gone. It was replaced by what he called strain. He got very tired after short exertion, and was affected by weather changes.

16. In August 1987 he saw Dr Corry. He was complaining of constant pain in the neck region, spreading towards the left shoulder and into the left upper arm. Occasionally he would have numbness in the third and fourth fingers of the left hand.

17. Dr Corry noted his obesity and elevated blood pressure. He observed marked muscle spasm in the muscles over both shoulders, and the scars on the neck and hip from the operation. The delay of a week between injury and the onset of symptoms suggested to him structural rather than soft tissue damage.

18. By October 1987 Dr Chandran noted that the fusion was complete. There was still pain in the neck, of mild to moderate degree. Dr Chandran thought him then fit for light duties on a part time basis, but could not see him working as a full time carpenter. His condition was stabilised. No further treatment was possible to improve his condition further.

19. His inability to work and the restrictions on what he could do at home made him unhappy. He had enjoyed detailed pencil drawing and fine ornamental carpentry, but could not stand the long periods in one position. Dr Dyball saw him in May 1989 at the request of his solicitors, and thought that he was suffering a situational stress reaction, but not any psychiatric disability.

20. He was examined by Dr Vanderfield, neurosurgeon, on behalf of the defendant, in May 1989 and again in May 1990 and November 1990. Dr Vanderfield also had the benefit of x-rays and a report by Dr Korber in March 1990.

21. In his opinion the plaintiff suffered only minor injury in the accident, and the accident was not connected with the later onset of his neck symptoms. He also thought that other indications of poor health would have incapacitated the plaintiff in any event.

22. I prefer the opinions of Dr Chandran, who observed the damaged discs at operation, and of Dr Corry, in whose view the onset and course of the injury were consistent with the accident.

23. I also note that Dr Cairns, orthopaedic surgeon, examined the plaintiff at the request of his solicitors in March 1987. Dr Cairns thought he presented with a typical picture of cervical spondylosis. Preexisting degenerative changes predisposed him to the injury he suffered. He thought that though the condition might fluctuate, the overall position was permanent and it was unlikely that the plaintiff would return to his previous occupation as a carpenter.

24. Recent examinations by Dr Keiller in December 1990 and Dr Corry in February 1991 confirm the view that his condition is stable.

25. The defendant put in issue the extent of the injury and the need for the operation as resulting from the accident. I have already stated my reasons for preferring the view of Dr Chandran that his disabilities did result from the accident.

26. Next it was submitted that he has some residual earning capacity. He has indeed some residual physical ability, but in the light of the evidence from the officer of the employment service, and the medical evidence, I am quite satisfied that he has no income earning capacity in any market reasonably available to him. He did not seek other employment, but I am satisfied that he would not have found any even if he had looked.

27. Lastly, it was submitted that he would probably not have worked till 65 years of age in any event.

28. His general health was by no means perfect, but it was not deteriorating. Dr Keiller could see no indication that he would not have continued working as a carpenter with normal retiring age. Dr Corry noticed an improvement in his general health between 1987 and 1991.

29. On the other hand, as Dr Cairns noted, there were preexisting degenerative changes in his cervical spine which predisposed him to risk of injury, which would not be insignificant for a subcontract carpenter.

30. On balance, I think that there should be a discounting of the future income earning capacity that he lost to a degree greater than the conventional fifteen percent (which is not a convention to which I adhere, in any event.)

31. In the light of his age, his occupation, and his overall medical history, I think it proper to discount this element by twenty percent.

32. He is now 55 years of age. He underwent operative fusion at two levels in his cervical spine. His neck is permanently stiff and restricted. There will always be pain and discomfort. He is unable to work as he would wish. He feels his disability deeply.

33. For his pain and suffering and loss of amenity I award $45,000.00.

34. In lieu of interest on such part of that sum as relates to the past I award $11,500.00.

35. The out-of-pocket expenses were agreed at $7,340.00.

36. The past loss of income is calculated in the particulars to August 1990 at $79,314.95. It was not admitted, but was not subjected to any criticism, once it is accepted that the disability was caused by the accident. The up to date figure is of the order of $88,500.00, which I accept as a reasonable estimate, over a period of more than 5 years.

37. The present value of $1 a week for ten years at 3 percent is $452.00.

38. The current rate of income loss is about $348.00. Discounting the product by 20 percent gives a sum of the order of $125,000.00 in round figures.

39. The award is therefore made up as follows:
Pain and suffering $ 45,000.00

Interest $ 11,500.00
out-of-pocket expenses $ 7,340.00
Past loss of income $ 88,500.00
Future loss of income $125,000.00
Total $277,340.00

I direct the entry of judgment for the plaintiff in the sum of $277,340.00.