Patrick Pangallo v Dennis Ross Smith [1991] ACTSC 48 (17 July 1991)

SUPREME COURT OF THE ACT

PATRICK PANGALLO v. DENNIS ROSS SMITH
S.C. No. 1460 of 1986
Damages

COURT

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

CATCHWORDS

Damages - Personal injuries - Motor vehicle accident - Loss of consciousness - Laceration to forehead - Pain in jaw - Soft tissue injury to neck and back.

HEARING

CANBERRA
17:7:1991

Counsel for the Plaintiff: Ms P. Burton

Instructing solicitors: Messrs Vandenberg Reid Pappas and McDonald

Counsel for the Defendant: Mr G. Lunney

Instructing solicitors: Messrs Minter Ellison

ORDER

There be judgment for the plaintiff in the sum of $27,603.20.

DECISION

This is the assessment of damages for personal injury which the plaintiff sustained in a motor vehicle accident on 26 January 1981.

2. The plaintiff is a single man, born in December 1964. He was a 16 year old student at the time of the accident and is now 26, working as a trades assistant in the automotive industry.

3. On the date of the accident, he was a rear seat passenger in a car, wearing a seat belt, when that car collided with another which had failed to give way to it at an intersection. It was a heavy impact. The plaintiff received a blow on the head and lost consciousness. He has no recollection of the accident or of the events leading up to it.

4. He was taken by ambulance to Royal Canberra Hospital where he came to as the laceration to his head was being sutured. He complained of painful neck, skull and right knee. The hospital records note a laceration to the skull, a haematoma over the forehead and bruising over the right knee. X-rays of the chest, skull, abdomen, cervical spine and right knee did not reveal any abnormality.

5. His scalp laceration was sutured. An ice pack was applied to his forehead. He was given Aspalgin and detained for observation. After about four hours, he was allowed to go home.

6. He went to bed and does not recall much of the next few days except that he was sore all over. He became worried about the swelling over his forehead and visited the hospital again on 31 January but no abnormality was detected. The four sutures were removed at the Hospital on 4 February. The wound was clean and dry.

7. After about two weeks he went back to school at Kaleen High School where he was in Year 10. The lump on his forehead took some time to go down. He had continuing headaches, a sore neck and sore back and began to notice a clicking in his jaw when he was opening and closing it. He had some difficulty chewing.

8. His family doctor notes a complaint about the worsening condition of his jaw on 9 April 1981. There appeared to her to be no actual dislocation of the temporomandibular joints, but a malocclusion of his bite due to the accident.

9. His continuing headaches and jaw problems led his father to take him to Dr Cassar, consultant physician, for advice in September 1981.

10. Dr Cassar thought that the post concussional headaches, accompanied by nausea, photophobia and difficulty in focussing, were likely to continue for about two years. He also thought that the malocclusion was causing tension headaches in the temporal and cervical region and that dental and oral surgery would be needed to overcome the difficulties.

11. He noted complaints of recurrent stiffness and aching in the cervical and lumbar spine. There was a normal range of movement, normal leg raising and no other evidence of spinal nerve root irritation.

12. The plaintiff thought that he would like to become a motor mechanic. He knew that he would need his year 10 certificate to become qualified in the trade. Nevertheless he left school before the end of the year and got a job as an attendant at a service station. He then decided to get his certificate and started going to night school. He succeeded in obtaining his year 10 certificate but suffered headaches and difficulties in reading and remembering as part of the post concussional syndrome.

13. In December, Dr Griffiths noted that his headaches had shown some relief from analgesics, although they had persisted throughout 1981.

14. When Dr Cassar saw him in July 1982, about a year and a half after the accident, he noted that the concussion based headaches were persisting, as he had expected. There had been no treatment for, or change in, the jaw. There were unsightly scars on the right forehead and occiput. He also diagnosed persisting lower cervical nerve root irritation on the right side, but this was not accompanied by any muscle tenderness, loss of tone or weakness in shoulders or arms and not accompanied by any sensory impairment. The lumbar disability had stabilised and left no residual problem except, in his view, the possibility of difficulties with heavy lifting jobs.

15. Dr Cassar thought nothing had changed when he examined the plaintiff in July 1984.

16. In June 1984, he consulted Dr Smith, oral and maxillo-facial surgeon. On clinical examination, Dr Smith detected a definite click in both joints on opening and the jaw had an irregular path during opening. X-rays did not reveal any abnormality. Dr Smith attributed the condition to the accident and did not expect it to change without treatment. Treatment would be lengthy and complicated and could not be guaranteed to have a satisfactory outcome.

17. The plaintiff did not then seek any treatment for his jaw.

18. On 26 October 1984, he was driving a Torana sedan with two passengers in it when a Gemini sedan made a right hand turn into his path. There was a heavy impact. Both vehicles had to be towed away. The police report notes that he received lacerations while one passenger received severe facial lacerations and the other a leg injury.

19. In answers to interrogatories he admitted that in that accident he sustained a head injury, lacerations to the face, eye injury, left knee injury, shoulder injury, headaches, shock and pain in the jaw. He also alleged aggravation to the injury to his jaw.

20. In his evidence he could not remember much detail about that accident. However he was wearing a seat belt, and when asked -
"Don't you remember that you hurt your back in that

accident?"

He replied,

"Well, I'd say it probably did. The impact of the car
hitting us, yes."

21. It was put to Dr Cassar in cross-examination that by July 1984 there had been quite significant improvement in the condition of his lower back, to which he agreed. He then agreed that any increase in the severity of the lower back symptoms since that examination would be attributable to the injuries received in the 1984 accident.

22. In his report of 9 February 1988, Dr Cassar noted some complaints of aggravation of lumbar spine with heavy lifting or concreting jobs, but that his examination was sufficiently normal to reassure the plaintiff about it.

23. When Dr McEwin examined him for the defendant in July 1988 the plaintiff made no complaint about his lumbar spine.

24. At that examination, Dr McEwin could find no objective evidence to indicate any remaining disability from the 1981 accident. The plaintiff claimed he had neck pain and headache but there was no objective evidence to support his symptoms. On a more recent examination in May 1991 he confirmed that view, except that he would concede that the continued clicking and pain in his temporomandibular joints could well be attributable to the accident. In evidence he attributed any continuing headaches to tension, not related to the accident.

25. Also in July 1988, the plaintiff was assessed, at the request of the defendant's solicitors, by Mr Francis-Jones, clinical psychologist. He told Mr Francis-Jones about other accidents that had happed to him since 1981 but, while the 1984 accident was not specifically noted, he said that the most serious had been in 1986 when he damaged his left knee and sustained lacerations above his left eye. There were no other details led in evidence about this accident.

26. He complained of headaches, the clicking of his jaw, neck and back pain occasioned by heavy work and knee pain.

27. Mr Francis-Jones assessed him as a man of low average intelligence with memory abilities within the average range. That assessment accords with my observation of him as he gave evidence. I also think that any problems he had or has with his memory and any elements of depression or flattened affect, are not attributable to the accident in 1981.

28. At some time in 1988 he slipped while lifting an electric welder from the boot of his car and immediately felt pain in the lower part of his back.

29. In November 1990, Dr Cassar reviewed the plaintiff. It appears from this report that the plaintiff's solicitors, presumably on his instructions, advised Dr Cassar that the headaches had stabilised over the previous two years, were no longer incapacitating, and when they returned, would be of tension type and would settle with Panadol. His neck had also settled down since 1987 and was no longer a constant disability but hurt only on very heavy exertion, and could be adequately dealt with without medical intervention. There was no mention of lumbar problems. The only significant residual disability related to the jaw.

30. The day before, on 2 November 1990, Dr Keiller examined him at the request of his solicitors. He said that his neck and back ached intermittently but not seriously. There were no abnormal physical signs. He diagnosed any damage to his neck and lumbar spine as having been of a soft tissue type.

31. I am satisfied that the accident caused concussion, some amnesia, post concussional headaches, soft tissue injury to the neck and lumbar region and some jaw dysfunction.

32. So far as all those disabilities, except the jaw, are concerned, they had resolved by the end of 1984. Any disability in any of those areas of which he now complains is the result of later incidents, in so far as it exists at all.

33. To my mind, the best view of his jaw problem is that of Mr Egan. There is a dysfunction within the joints which is probably the result of the accident. I do not think that it was made worse by subsequent accidents. It does not trouble him as much as he says, or he would have been expected to do something about it before now. It is no longer possible to treat it surgically. Limited treatment by splinting and exercises would probably help. The cost of that treatment would be of the order of $1,750.00.

34. For his pain and suffering I award $18,000.00, of which $3,000.00 would relate to the future. On the past component of that sum I award $6,280.00 for interest.

35. There was no claim for loss of income. The out-of-pocket expenses amount to $1,573.20.

36. The total award is therefore made up as follows:-

Pain and suffering $18,000.00
Interest 6,280.00
Out-of-pocket expenses 1,573.20
Dental treatment 1,750.00
Total $27,603.20

I direct the entry of judgment for the plaintiff for $27,603.20.