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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Negligence - Contributory negligence - Motor vehicle accident - Passenger - Not wearing seat belt - Neck injury - Causation - No issue of principle.Damages - Assessment - Motor vehicle accident - Neck injury - No issue of principle.
HEARING
CANBERRACounsel for the Plaintiff: R. Mildren
Instructing Solicitors: Gallen Crowley
Chamberlain
(W.J.G. McCarthy: 274.0999)Counsel for the Defendant: P. Sheils QC/B. Meagher
Instructing Solicitors: Pappas J. Attorney
(A. Brewer: 257.6956)
ORDER
THE COURT ORDERS THAT:DECISION
This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 14 October 1988.2. The plaintiff was born in Spain on 20 January 1949. In Spain he was educated to the equivalent of the Higher School Certificate and then spent three years studying for a commerce qualification.
3. He came to Australia when he was about twenty four years of age and worked at various places as a labourer, rigger and truck driver. He was in good health and a strong man and prepared to do heavy work.
4. In 1979, while he was working at Newcastle, he injured his lower back at work. He was off work for about four years and five months on workers compensation. His entitlements to workers compensation were redeemed for $40,000. When he received that money he went home for a year and returned to Australia in January 1985.
5. He then started up a business of installing safety grilles with a friend. He was in charge of the administrative side, while his partner did the physical work.
6. In September 1985 he came to Canberra where he worked at first as a labourer, and then in May 1986 he obtained a job with the defendant.
7. While he was off work in 1980 he began studying at the Newcastle Technical College, in an electronic and communications course. He completed only one year of it. In 1986 he recommenced study in a similar type of course at the Bruce TAFE.
8. With the defendant he worked as a labourer, installing underground electrical cable. He also worked at installing telephone poles. He was still capable of heavy work but began to have some difficulty with his back. However up to October 1988 there was only one occasion when he had time off work because of the condition of his lower back.
9. On 14 October 1988 he was riding as a passenger in a small truck operated by the defendant. The driver, a fellow employee, was licenced to drive a car, but not a truck of the type that he was driving. He was under instruction, and the plaintiff was the licenced driver supervising him. There was no other passenger in the cabin of the truck. There was a lap and sash seat belt fitted. The plaintiff was not wearing it. He was not asked in evidence to explain why he did not put the seat belt on.
10. As the driver negotiated a turn at an intersection, the vehicle slid, contacted the kerb and turned over. It came to rest on its roof. The plaintiff was thrown about and his head hit the roof. He did not lose consciousness. He crawled out through the broken front window.
11. As he used the radio to call for assistance, he felt dizzy and saw stars, and sat down to wait for the ambulance. The ambulance took him to Royal Canberra Hospital. He lost consciousness during the journey. He sustained soft tissue injuries to his scalp, nose, neck, right upper arm, left thumb, right upper abdomen and right hip. The injury that has persisted is a soft tissue injury to the neck.
12. It is not contested that the driver of the vehicle failed to exercise due care in his driving. There will therefore be judgment for the plaintiff.
13. A defence of contributory negligence was raised, based upon the plaintiff's failure to wear a seat belt.
14. Dr Cassar, in his report dated 22 May 1991, referred to the plaintiff's "significant compression injury to skull and neck when the van in which he was sitting without seat belt fitted overturned".
15. A CT scan performed on 23 October 1989 covered the spine from C4/C7. There was no evidence of significant narrowing of the intervertebral foramina.
16. On 8 April 1991 Dr Bleasel, neurosurgeon, examined the plaintiff for the defendant. The plaintiff told him that his head was only one or two inches from the roof of the cabin in which he was sitting. That was also the plaintiff's evidence, and I had a view of him sitting in the cabin of a similar vehicle which helped me to understand that there was indeed very little distance between the top of his head and the roof of the cabin while he was sitting normally in it.
17. It is clear that the plaintiff failed to take due care for his own safety in not adjusting the seat belt that was available while he was a passenger in the truck.
18. However, what I am not satisfied about is whether he would have obtained any different or lesser injuries had he been wearing it. He did not receive his injuries from being thrown forward so that his face collided with the windscreen. A properly adjusted seat belt would probably prevent such an injury. But I am not persuaded that a lap and sash belt would prevent movement of only a few inches in the direction of the roof of the cabin. I am also not persuaded that the injury to his neck was in fact a compression injury. I think that it is more probable that it was caused by flexion and extension as the truck rolled over as well as by the force of the blow against the roof of the cabin.
19. There will therefore be no reduction of the plaintiff's damages on account of contributory negligence.
20. There is some evidence that the injury that the plaintiff had suffered in 1979 included some harm to his neck as well as to his lower back, but I am inclined to agree with the view of Dr Plowman that the neck pains of which he complained then were tension symptoms.
21. He was kept at the hospital for observation for about 12 hours, and was then sent home. He felt sore and bruised all over, but especially in the neck, thumb and legs. His thumb was x-rayed, and physiotherapy prescribed.
22. He attended the physiotherapist at Melba Health Centre, and was given a collar to support his neck.
23. He attended Dr Ong, his general practitioner, on 14 October 1988. He had more x-rays taken, and prescribed Orudis, Panadeine Forte and swimming exercises. By 21 November 1988 he had gradually recovered from most of his other injuries, but was still troubled by a sore neck and recurrent headaches. He changed his physiotherapist to Mr Rumore.
24. Towards the end of November he returned to work. In mid December Dr Ong certified that he was capable of driving duties, but that he should be on light duties for six weeks, avoiding lifting, digging or shovelling.
25. When he went back on to ordinary duties he had difficulty doing the heavier work, and had occasional days off, until the end of March 1989. Dr Ong certified that he should stay off work for about a month.
26. On 8 April 1989 Dr White, neurologist, examined him at the request of his solicitors. There was tenderness of the cervical spine, but no associated muscle spasm. There was a full range of movement, with complaints of pain at the extremes of movement. Dr White diagnosed a significant whiplash injury, the pain from which had diminished considerably since the accident. The plaintiff appeared very anxious. But Dr White expected eventual recovery.
27. On 2 May 1989 Dr Ong reported to Comcare that the plaintiff was still suffering from recurrent headaches and neck pain, which was aggravated by heavy work. He recommended light exercise such as swimming and Tai-Chi, and expected that treatment with medication and physiotherapy would continue intermittently for the next 4 to 6 months.
28. When he went back to work on light duties he was given the job of reading meters. The chief meter reader reported that although he could read the meters, and was punctual and willing, he was not able to handle the full runs of about 14 to 16 kilometres involved in a day's work. He did half runs and helped in the office.
29. Comcare had referred him to Dr Corry's rehabilitation service, where he was seen first by Caroline Jordan, occupational therapist. She had agreed that he should attempt the meter reading job, and recommended a return to Mr Rumore for more physiotherapy. In June 1989 Mrs Jordon suggested amending the rehabilitation plan to include stress management and relaxation training. The plaintiff was continuing to suffer neck pain.
30. His solicitors sought a report from Dr Keiller, who saw him on 2 June 1989. The headaches were continuing, and were severe. They were interfering with his TAFE studies. The neck was still tender and a little limited in movement. Dr Keiller diagnosed soft tissue injury, and did not doubt that his complaints were genuine. He did recommend, however, that he receive psychological support and encouragement, and reassurance about the eventual outcome. He thought the condition was not yet stable, and should be reassessed in 6 months.
31. The defendant's solicitors had him examined by Dr Vance, orthopaedic surgeon, on 25 July 1989. He also diagnosed soft tissue damage to the neck, and expected further recovery over the next 12 months. He thought it possible that there had been damage to a cervical disc, but did not recommend invasive investigation or any treatment other than the avoidance of bending and lifting heavy weights.
32. On 17 October 1989 Dr Corry himself examined the plaintiff, and reviewed him with CT scans of the neck on 23 October 1989. The CT scans showed probable disc degeneration and herniation at C6/7, which would be consistent with the plaintiff's described symptoms. Dr White examined the scan in December 1989, and thought that although a herniation was possible, he felt it was unlikely.
33. The plaintiff had been working in the electronics section, where his supervising officer reported that he was a co-operative and willing worker, who had no problem with mechanical work, but a limited knowledge of electronics, and some problems with English. Dr Corry agreed that the plaintiff should not be given heavy work, and suggested that attempts to return him to light duties should be properly set up as a formal retraining program. Unfortunately, there is no evidence that Comcare or the Authority took up Dr Corry's suggestion. I suspect that there may be some truth in the observation by his supervisor at the electronics section that there may have been a personality problem at the northern region between the plaintiff and his direct supervisor. When his temporary stint at the electronics section finished, in October 1989, he was put off work on full pay. He applied for a job as meter reader without success.
34. At the end of January 1990 he was redeployed to a clerical position in the Authority, as an examiner in the accounts payable section. The work involved data entry into computers, and he was able to stand and move around occasionally, to ease the strain on his neck. His supervisors reported that he was willing and co-operative, though he had a number of absences to attend a course in English that he was undergoing. Despite his willingness to improve, they thought he lacked a basic understanding of accounting procedures, he lacked confidence and was not capable of satisfactory performance as an examiner. That redeployment finished on 6 July 1990.
35. Dr Corry re-examined him on 2 July 1990. There was little change in his complaints, though perhaps the pain was a little less severe. Dr Corry's diagnosis was that he was suffering from a C6/7 disc degeneration, which limited his capacity for heavier manual work. It had been made symptomatic by the accident, and although there had been progressive improvement other medical conditions or natural processes were not contributing to his condition. He was limited in performing heavy manual work, in sustained postures requiring neck flexion, and in driving.
36. Mr Magill, the occupational therapist with Dr Corry's rehabilitation unit, discussed suitable employment for the plaintiff with senior staff at the Authority. He thought that the plaintiff's potential for rehabilitation to full time employment was very good, but needed to be enhanced by fitness and exercise programs. The plaintiff was placed in a position as a trades assistant at the electrical sub station branch at the Kingston Depot. He was put on a further course of physiotherapy. Dr Watt and Mr Maher, the physiotherapist, both suggested that this case not proceed on the date fixed for hearing in February 1991, to allow the course to be completed and further assessment to be made of his injury.
37. At the request of the solicitors for the Authority, Dr Bleasel, neurosurgeon, examined the plaintiff in Sydney on 8 April 1991.
38. The plaintiff claimed to have performed satisfactorily as a trades assistant, though suffering some effects from heavy aspects of the work. The job had however come to an end during the preceding week.
39. Dr Bleasel saw the CT scans and agreed with Dr White that a significant disc extrusion was unlikely. There was no complaint of radicular pain.
40. The plaintiff's complaints to Dr Bleasel were principally of headaches, though neck pain and limitation of movement, dizziness and intolerance to glare were still troubling him.
41. There was no evidence of neurological abnormality. In Dr Bleasel's opinion the symptoms were genuine, and were the result of the accident. They had settled almost completely while the plaintiff was on genuinely light duties, but had been aggravated by the heavier duties in 1990. He recommended no treatment beyond occasional physiotherapy, and thought that the need for that would soon pass.
42. The defendant's solicitors also sought an opinion from Dr Roebuck, orthopaedic surgeon, who saw him on 7 May 1991. He could find no evidence of any disability, temporary or permanent. Dr Roebuck gave evidence by telephone and was cross examined. He saw the plaintiff only once, and his view is so different from the opinions of the other doctors, especially those who saw the plaintiff often, that I do not find his opinion helpful in this case. I prefer the views of Drs Corry and Bleasel, which are more in accordance with the plaintiff's evidence, which I accept in general, and the perceptions of his work supervisors that he was genuinely trying to do the various light duty jobs that had been given. I note also that on 27 June 1991 Dr Cassar certified that he was fit only for light duties from 13 May 1991 to 30 November 1991.
43. Dr Vance re-examined him on 13 May 1991. He considered that the plaintiff had residual symptoms of soft tissue damage to the cervical spine, but that he was fit for the duties of a leading hand cable layer. Yet he thought that work which would involve prolonged periods of heavy lifting should be avoided.
44. Dr Vance gave oral evidence and was cross examined. I think that when he wrote his report he may not have realised how much physical work was involved in being a leading hand cable layer.
45. On 15 May 1991 the plaintiff was redeployed to a position of storeman at the Authority's main store at Kingston. There was no heavy lifting involved, and his evidence was that he was able to do that work.
46. However, the Authority would have received Dr Vance's report, dated 14 May 1991, shortly after he started in that job.
47. On 30 June 1991 the position as storeman terminated. He was directed to attend at the Mitchell Depot, was told that his superintendent had evidence that he was 100 percent fit, and was instructed to begin work immediately as a leading hand cable layer. He did what he was told, and worked hard, digging and cleaning up a trench with a shovel. He felt all right while doing the job, but in the evening began to feel pain in the neck.
48. The next day his neck was sore, but he went to work, using a wheelbarrow and emptying it into a truck during the morning. His pain increased. In the afternoon he was required to dig a 6 foot hole which had to be finished by the next morning. That night he was very sore, and could not sleep. He took more medication.
49. The next morning he returned to finish digging the hole, and while he was doing so felt a sensation through his body and became dizzy. He was taken back to the depot, and after a rest went to see Dr Ong. Dr Ong found he had cardiac palpitations, and referred him to Dr Jeffrey, a cardiologist.
50. Dr Jeffrey performed an ECG, and diagnosed atrial fibrillation. He treated him with Digoxin, which stopped the arrhythmia, and issued a certificate that the plaintiff was unfit for work until 2 September 1991.
51. Dr Corry saw him again on 2 September 1991, and repeated his view, in which he understood Dr Vance to concur, that the plaintiff was fit for work only where no more than occasional lifting was involved.
52. The following day Dr Jeffrey gave him a certificate for a further week off work, which he later extended to 16 September.
53. On 17 September Dr Jeffrey carried out further tests at Royal Canberra Hospital, and confirmed his diagnosis of intermittent atrial fibrillation. This condition in itself did not call for a restriction on physical activity, such as gymnasium exercises, since the disturbance of rhythm was infrequent and relatively harmless. He did inform the plaintiff however that he might experience further attacks with heavy physical activity such as had brought on the two previous attacks. In January 1992 Dr Jeffrey advised against the plaintiff's returning to work as a cable layer.
54. After the two and a half days of work his neck felt very bad, and he went to Mr Maher for more physiotherapy. In December Mr Maher thought he needed continuing treatment once a week to manage his condition.
55. He has not returned to work since 2 August 1991, but it is clear that he would be prepared to do light work if the Authority would provide it for him. It has not yet done so. He has looked for suitable work himself, but, not surprisingly, has not found any.
56. In a report dated 2 June 1992 Dr Ong commented that on 8 May 1992 the plaintiff was assessed for fitness for duty by the Commonwealth Medical Officer, Dr McKay, who recommended that he was fit to return to work as a cable layer/leading hand, initially for 4 hours daily. Dr McKay's report is not in evidence, but, in conjunction with Dr Vance's earlier report, it may explain the defendant's seeming attitude to providing suitable work for the plaintiff. He has been receiving sickness benefits rather than periodic compensation since February 1992.
57. I think that, with the weight of Dr Corry's opinion to back him up, Dr Ong is correct in concluding that the plaintiff is fit to return to light duties, but will be unable to cope with duties requiring heavy physical labour, and that he should not return to the physically demanding cable laying job. Dr Corry examined him again on 26 May 1992, and forcefully expressed the same view. Dr Danta examined him on 7 October, and he also came to substantially the same opinion.
58. Mr McGinniskin, the manager of the Insurance and Legal Section of the defendant Authority, was present in Court helping to instruct counsel for the defendant, and heard the cross examination of Dr Vance, during which Dr Vance conceded that to require the plaintiff to carry out heavy work might involve risk of further injury to his neck. He consulted during the hearing with senior officers of the Authority. He gave evidence that the Authority, in conjunction with Comcare, has recently set up an injury management centre, and that steps will be taken to find suitable employment in the Authority for the plaintiff, in which he would be paid at the rate appropriate to his former job.
59. I did not form the view that in giving evidence or in telling of his condition to the doctors the plaintiff exaggerated his disabilities. He suffered a violent accident, which left him with extensive bruising and other relatively minor injuries which healed normally. The soft tissue injury to his neck and the headaches have persisted. They are not so severe as to prevent him from working at all, but he is no longer able, big and strong though he is, to do the heavy work that he could do before the accident. If he is able to avoid heavy exertion the condition of his neck will not be disabling, but he will probably have intermittent discomfort for the rest of his life.
60. I would award $30,000 for his pain and suffering, of which $5,000 would relate to the future. For interest on the past component on the conventional basis I award $2,000.
61. The out of pocket expenses listed in Exhibit E are agreed. As listed they total $17,582.24. In final addresses it became clear that amounts of $680.00 from Sutton and Williams and $2,430 for Dr Cursley should not have been included, and are not refundable by the plaintiff to Comcare. I therefore allow $14,472 for out of pocket expenses.
62. There is no basis in the evidence for deciding that his heart condition was caused by the accident. But neither does Dr Jeffrey's evidence support a finding that even if the accident had not happened he would have suffered from that condition and that it would have prevented him from doing the job he had before the accident. I do not agree therefore with the defendant's submission that his heart condition is the reason why he has not returned to his pre accident work. His neck condition is the reason why that work is no longer suitable for him.
63. Other than on that basis I did not understand the defendant's counsel to contest the claim for past loss of earnings based on those of a comparable employee, as set out in Annexure A to the Statement of Particulars. I allow $56,889 for past loss of earnings. I do not award any interest on that item.
64. The Fox v Wood component has been agreed at $6,300.25.
65. I am not persuaded that the plaintiff will incur anything like the $2,000 a year claimed for the cost of medical treatment in the future. In particular, I think that physiotherapy treatment will be quite intermittent. However, there will be some continuing expense, of the order of up to $10.00 a week perhaps. I award a sum of $5,000 to provide for the cost of future treatment.
66. In the physical sense the plaintiff's future income earning capacity has been significantly reduced. He is by no means uneducated, but he is at a disadvantage in learning new matter because of language difficulties.
67. But if the defendant follows its policy as was sworn to by Mr McGinniskin, that loss of capacity will not in fact result in economic loss to him.
68. There is always the possibility however that for some reason or another he may lose his position with the Authority. He would then be at a great disadvantage on the labour market. I think that some award should be made as a buffer against that contingency. I would award the sum of $25,000 on that account.
69. The total award is made up as follows:
Pain and suffering $30,00070. I direct the entry of judgment for the plaintiff in the sum of $139,661.
Interest 2,000
Out of pocket expenses 14,472
Past loss of earnings 56,889
Fox v Wood 6,300
Future treatment expenses 5,000
Future income loss 25,000
TOTAL $139,661
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