Luigi Ianniello v John Kremisis [1992] ACTSC 18 (3 March 1992)

SUPREME COURT OF THE ACT

LUIGI IANNIELLO v. JOHN KREMISIS
S.C. No 176 of 1989
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Neck Injury - No Issue of Principle.

HEARING

CANBERRA
3:3:1992

ORDER

Judgment be entered for the plaintiff in the sum of $90,624.50.

DECISION

This is the assessment of damages for personal injuries received by the plaintiff in a motor vehicle accident on 5 February 1988.

2. The plaintiff was born in Italy in 1934. He left school at the age of fourteen and performed unskilled work until he came to Australia in 1962. Here at first he worked as a labourer, and then conducted a business of concrete finishing.

3. In 1977 he received an injury at work which left him with a permanent limp in his left leg. He has not worked at a full time job since that time.

4. He brought an action for damages in respect of the injury, which was settled in about 1982 by payment of a sum of the order of $75,000. Since 1982 he has been an invalid pensioner.

5. In 1984 he entered into an arrangement with the Juventus Soccer Club which involved opening the club in the morning and miscellaneous light duties, for which he received $100 a week, which was represented as being mainly a payment for his travelling expenses.

6. The club stopped trading in October 1987 and the plaintiff looked for other suitable employment. He obtained part time work at the Stationery Supermarket in Phillip working five hours a day on two days a week, for which he received $100 a week. The case was conducted on the basis that no income tax was payable on earnings at that rate and that it did not affect his entitlement to the invalid pension. The local manager of the Stationery Supermarket gave evidence and could not see any reason why the plaintiff would not have been able to continue in that employment had the accident not happened.

7. On 5 February 1988 he was driving a motor vehicle at the intersection of Badimara Street and Hindmarsh Drive when the defendant's vehicle collided with the right hand side of his vehicle. It was a violent impact. The car had to be cut open before he could be released from the vehicle. He had been wearing a seat belt, and did not suffer any head injury or lose consciousness. He was taken by ambulance to Woden Valley Hospital where he complained initially of a painful neck and right ribs. X-rays did not reveal any abnormalities.

8. He was given some medication and went home. At first his main concern was the bruising, but after some days, as bruising subsided, he suffered increasingly from headache.

9. Three days after the accident, on 8 February 1988, he saw his general practitioner, Dr Gow. On examination Dr Gow noticed tenderness to his right lower ribs with associated bruising. He had a painful right neck and there was decreased range of movement in lateral flexion and rotation. He diagnosed a muscular ligamentous strain of the cervical spine and prescribed analgesics. The bruising and the ribs slowly improved but the painful neck persisted. On 16 February 1988 Dr Gow sent him to Woden Valley Hospital for x-rays of the cervical spine but they showed no bony injury. He prescribed physiotherapy and referred him to Dr Chandran, neurosurgeon.

10. Dr Chandran first saw the plaintiff on 18 April 1988. The physiotherapy was not affording any significant relief. On examination Dr Chandran found no neurological deficits and a mild restriction of rotation together with tenderness over the right trapezius muscle below the neck. He prescribed anti-inflammatory medication. When Dr Chandran reviewed him on 26 May 1988 he was still having pain in the neck and he was referred for a course of manipulative therapy. The manipulative therapy helped only for a day or two, but his symptoms then returned. He was given a collar.

11. Dr Chandran's examination of the x-rays indicated to him a narrowing of the C6/7 disc space, which indicated a pre-existing degeneration in the cervical spine. Dr Chandran at that time expected that what appeared to him to be a minor soft tissue injury would settle over the next 6 to 12 months.

12. In June 1988 the plaintiff changed his general practitioner and consulted Dr Buchanan. Late that month he was admitted to Woden Valley Hospital complaining of chest pain, but the cardiologist did not identify any major heart defect and he was not suffering any symptoms when he was discharged.

13. Shortly after his admission to Woden Valley Hospital for his chest pain Dr Buchanan had referred him to Dr Long, consultant physician. Dr Long saw the plaintiff again in October 1988. He was complaining of chest pains and other atypical symptoms. Dr Long commented:
"This man definitely does have hypertrophic cardiomyopathy, he may

possibly have depression and he certainly is trying to maximise the
symptoms connected with his right arm, presumably with a view to
compensation. Even if he does have a C5 lesion, there is no way in
which it could give rise to such extensive weakness and sensory
changes."

14. On 20 September 1988 Dr Andrews reported to Dr Buchanan that there were indications of nerve root problems at C6, so in November 1988 Dr Buchanan referred the plaintiff back to Dr Chandran, who had some reservations about his symptoms, but thought it worthwhile to ask for a cervical myelogram and CAT scan. They showed no abnormalities, so Dr Chandran had a discogram performed. That demonstrated a painful disruption at C6/7, and Dr Chandran advised a fusion, which he carried out on 27 March 1989 at John James Memorial Hospital. He was in hospital till 3 April 1989.

15. On review in June 1989 the plaintiff seemed to Dr Chandran to have had a good measure of relief of the headaches and neck pain, though he still had some difficulty in using the right arm for heavy work.

16. However, he continued to suffer from shortness of breath and pain in the chest so that Dr Buchanan asked the specialists at the Department of Thoracic Medicine at the Royal Canberra Hospital to investigate the matter. They thought the most likely explanation for the pain that he was getting in his chest was musculoskeletal. They prescribed a non-steroidal anti-inflammatory drug in the hope that it might relieve some of his symptoms.

17. On 4 August 1989 Dr Keiller examined him for the defendant. He said his neck was a bit better since the fusion operation. Neck movements were restricted by 50%. His headaches were intermittent and he still had pain in his right shoulder and arm. Dr Keiller's opinion was that the accident had triggered a previous degenerative change into symptomatic activity. Dr Chandran and Dr Mann noted much the same picture at about that time, but Dr Mann thought that the operation had not been terribly successful, although it was still too early to make a final assessment.

18. Dr Chandran had a CAT scan performed in December 1989, which showed that the fusion was complete at C6/7, but there was a mild protrusion at C7/T1. There was no suggestion that it resulted from the accident, or that it was to blame for his symptoms. Dr Cassar thought him "very introspective about quite acceptable fleeting musculoskeletal problems."

19. The plaintiff discussed the recent tests with Dr Buchanan on 18 December 1989, and it was 11 May 1990 before he saw her again, complaining of neck pain. Dr Chandran had shortly before administered a facet block injection, and referred him for physiotherapy.

20. Dr Keiller reviewed him for the defendant on 5 September 1990, when he quite obviously was exaggerating his symptoms. Dr Keiller was not cross-examined about his opinion of exaggeration, which he expressed as, "There is no doubt he has sufficient changes in his neck to account for ongoing symptoms to some degree, but I do not believe he is suffering pain to the level which he claims." He confirmed that impression when he saw the plaintiff again in June 1991.

21. At about that time Dr Mann saw him again, and found his condition unchanged, except that the chest pains were better. He thought his condition, such as it was, was stable.

22. Dr Cassar's opinion in April 1991 was that he had stable permanent incapacitation of right cervical brachialgia, which he attributed to the accident. I think it is probable, on the basis of Dr Chandran's reports over 1990 and 1991, that the state of his cervical spine was degenerating to some extent from normal ageing. Dr Cassar contemplated further fusion at C4/5 and C5/6. On 22 April 1991 Dr Buchanan advised him against it. He has accepted Dr Buchanan's advice.

23. The solicitors for the defendant, no doubt noting the emotional content in many of his complaints to the various doctors, referred him for an opinion to Dr Tym, a consultant psychiatrist who saw him for about two hours on 4 June 1991.

24. Dr Tym commented:

"Throughout the interview he appeared to be mostly frank, honest
and cooperative, but there was some reason to suppose that at times
attempts were being made by him to consciously exaggerate certain
aspects of his physical disability."

25. Dr Tym's conclusion was:

"In summary, there is no evidence that I can find of any
significant persisting psychological or psychiatric sequelae to the
accident on 15 February 1988; there is evidence of consciously
simulated physical sequelae in his right upper arm; there is
evidence of some accident unrelated capsulitis of his right shoulder
joint, and there is serious scepticism on my part in believing the
genuineness of most of the symptoms of pain and discomfort that he
claims to have resulted from the accident on 15 February 1988."

26. Also in evidence was a video tape which showed him using a hose and taking a dog for a walk. The tape was not remarkable in any way. He has never made complaints of being so disabled that he would not be able to hold a hose, and the fact that he was using it instead of a broom to clean his front porch might tend to corroborate his claim of some discomfort. At the end of the walk with the dog, it was the animal that was limping more than he and there was no activity that placed any great stress upon him. He did however, bend down and use his right arm in a way which might well be inconsistent with his complaints.

27. Upon reviewing the whole of the evidence I find that in February 1988 the plaintiff already had a cervical spine in which degenerative changes were taking place. Those changes might have caused him some discomfort at some time in the future or he may never have suffered any disability as a result of them.

28. As a result of the accident the condition of the neck was made worse and what might have been symptomless became symptomatic. The fusion operation was made necessary by the accident and the processes of degeneration were accelerated. I think that his personality is such that he dramatises his disabilities to a degree greater than is thought acceptable by those of an anglo-saxon background. I do not think that he was deliberately exaggerating merely in order to extract more money from the defendant, but there is no doubt that his symptoms are not as constant or as painful as he makes out.

29. For his pain and suffering I would award the sum of $25,000. In lieu of interest on so much of that amount as does not relate to the future I award $1,500.00. The out of pocket expenses are agreed at $22,624.50. There is no evidence about whether they have been paid, or if paid, by whom and when, and I do not award any interest on that sum.

30. So far as the loss of income is concerned, he had been working for only about nine weeks. So far as his employer was concerned there were reasons of family friendship to make it probable that the job would have been available for as long as the plaintiff wanted it. Despite his exaggerations, I think that it was reasonable for him to decide that he could not do the work satisfactorily. Because of the pre-existing degeneration there was a possibility that some other trauma, or the passage of time, might have disabled him before now, or might have done so some time in the near future. He is now aged 58 years, and a 58 year old invalid pensioner does not usually have a great deal of future income earning capacity.

31. Making discounts for the past and future that seem appropriate to me, I would award $20,000 for past loss of income and $10,000 for the future. I award a lump sum of $6,500 in lieu of interest on the past loss.

32. I am not persuaded that he will need the extent of treatment in the future that Dr Cassar gave evidence about. I think his most recent view points far too gloomy a picture. It was not made clear to me what his entitlements will be to treatment in the future as an invalid pensioner. I think it would be unjust to the defendant in those circumstances to award him more than $5,000 for the cost of future treatment.

33. The total award is therefore made up as follows:

Pain and Suffering $25,000.00
Interest 1,500.00
Out of pocket expenses 22,624.50
Past loss of income 20,000.00
Interest 6,500.00
Future loss of income 10,000.00
Future medical expenses 5,000.00
TOTAL $90,624.50

34. I direct the entry of judgment for the plaintiff in the sum of $90,624.50.