James Nelson Mcappion v Kerry Ann Browning [1992] ACTSC 47 (13 May 1992)

SUPREME COURT OF THE ACT

JAMES NELSON McAPPION v. KERRY ANN BROWNING
No. SC 499 of 1991
Assessment

COURT

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

CATCHWORDS

Assessment - Personal Injury - Motor Vehicle Accident - Lumbar Facet Joint Strain - Pre-Existing Degenerative Condition - No Issue of Principle.

HEARING

CANBERRA
13:5:1992

ORDER

1. Judgment be entered for the plaintiff in the sum of $56,348.10. 2. Defendant to pay costs.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 1 April 1989.

2. At the time of the accident the plaintiff was aged about 54 and was employed as a Foreman Carpenter. He had considerable experience in the building industry.

3. He had never before had any symptoms of pain in his back. His job as a foreman involved him in some physical activity, such as setting out and pegging a site, and giving occasional assistance to other workers.

4. On 1 April 1989 he was driving a motor vehicle, wearing a seat belt, when a vehicle travelling in the opposite direction went out of control and collided with his vehicle, head on. His head did not strike any part of the vehicle and he did not lose consciousness. He immediately felt soreness in his neck and lower back, and his right elbow, ankles and knee were bruised. He went to the accident section of Calvary Hospital where he was observed, given analgesics and Voltaren and was advised to rest. X-rays of the cervical spine did not disclose any fracture or dislocation but some early degenerative changes in the facet joints were noted.

5. Two days later on 3 April 1989 he went to see Dr Meiklejohn, his general practitioner. He was then complaining of pain in both knees and neck, headaches, a tender right elbow and tenderness in the right sacro-iliac joint. His neck movements were restricted to sixty percent of normal. Dr Meiklejohn advised physiotherapy and prescribed analgesics.

6. The plaintiff started physiotherapy at the Sports Medicine Centre on 4 April 1989, and between then and the end of May 1989 was treated with mobilisation and traction, heat, fascial release massage, electrotherapy and rehabilitative exercises. By 14 April Dr Meiklejohn had noted that his neck movements had improved, his back was a bit better but still tender, his neck was still aching and he still had mild headaches.

7. A month later his neck movements had improved to ninety percent of normal, but he was noticing pain in his lower back.

8. By 2 June, when he had recently discontinued physiotherapy, the neck was relatively painless, but the back was painful on bending.

9. X-rays taken on 6 July 1989 showed a lumbar scoliosis with disc degeneration and other defects at L4/5, which Dr Meiklejohn described as degeneration of the facet joints without displacement.

10. On 12 July he resumed physiotherapy for a week.

11. The pain in his lower back persisted however, and Dr Meiklejohn referred him to Dr Lithgow's Pain Management Clinic. The bruising to the right elbow and knee had settled, and the neck and head soreness had also settled by about four months after the accident. His continuing complaints were:
- Lower right lumbar pain which prevented him from doing

anything physically demanding in relation to his business;
- The pain was aggravated by extending his spine and bending to
the right; and
- The pain worried him at night when it had a throbbing quality.

12. On examination there was localised tenderness in the right lower lumbar region, and he felt pain when the right sacro-iliac joint was stressed.

13. Dr Lithgow began a course of injections to the joint with steroid. The first, on 21 November 1989 gave only marginal relief. On 6 February 1990 the lower right facet joints were injected giving good and lasting relief which was still persisting when Dr Lithgow saw him on 7 May 1990. The plaintiff continued to suffer some discomfort on sitting down and when extending the spine and leaning to the right. By May of 1990 he was no longer complaining that pain was disturbing his sleep.

14. In July 1990 he was examined by Dr McGrath, Rehabilitation Specialist, who took a careful history and examined the x-rays. In summary Dr McGrath concluded that the plaintiff had suffered in the accident an aggravation of a lumbar spondylosis, whereby a condition that had not been symptomatic became painful. He expected the impairment to be subject to exacerbations and remissions for some time to come. He did not suggest any surgical treatment, and agreed with Dr Lithgow that intermittent low back injections were justified.

15. On 9 November 1990 Dr Colin Andrews, Neurologist, examined him for the defendant. The plaintiff gave Dr Andrews a history which was consistent with what he had told other doctors, and with his evidence, except that Dr Andrews notes that he had not returned to work. He was taking no medication at that time. It is clear from the plaintiff's own evidence that, although when he saw Dr Andrews he was no longer working full time for an employer, he was in fact working from time to time at activities such as house extensions on his own account.

16. Dr Andrews found only tenderness over the right L4/5 and L5/S1 facet joints. He accepted that the plaintiff had continuing problems at those joints, which could require further injections. He expected the problems to resolve slowly.

17. He had another injection by Dr Lithgow on 12 March 1991, and between 22 May and 11 July 1991 he underwent further physiotherapy with Mr Rumore. In addition to the treatment, Mr Rumore gave him advice about correcting his posture and also advised the use of a lumbar roll during any sustained sitting positions. The plaintiff agreed that he did not find the use of the lumbar roll particularly useful or necessary. So far as the evidence goes, the plaintiff had one injection from Dr Lithgow in 1989, one in 1990 and three in 1991. He expects to have another during this year, but the evidence does not corroborate his claim that he has already had an injection during 1992.

18. In July 1991 he was examined by Dr Danta. Dr Danta agreed with Dr Lithgow that the plaintiff had pre-existing degenerative changes which were rendered symptomatic by the car accident. He thought that his injuries and disabilities had more or less stabilised and that treatment should continue along conservative lines. He thought he was fit for light duties which would not require him to bend or lift significantly.

19. He found it difficult to give an opinion about whether the degenerative changes shown in the x-rays would have caused symptoms in the future. He commented that generally symptoms come to light with trauma, which may be fairly minimal, it is possible that within the next ten years or so he would have developed some backache, but it is uncertain whether this would have prevented him from continuing with his work as a foreman.

20. Dr Andrews also reviewed him on 17 December 1991. He was still getting some back pain without any associated sciatica. There was still only localised tenderness to be seen on clinical examination. He thought that the plaintiff had a fair amount of naturally occurring pathology in the facet joints, so that even though his condition might gradually improve, because of the degenerative condition he would never be completely pain free.

21. There does not appear to me to be any significant conflict in the medical evidence.

22. The substantial area of contention between the parties related to the economic loss that he suffered as a result of the accident.

23. On 6 February 1989 he had begun employment with EuroStruct Industries Pty Ltd as a general foreman on a salary of $40,000 per year. It is clear that he was not happy in that occupation, at any rate shortly before the accident, but I do not doubt that he would have continued in the job for as long as it would have lasted. I am also not satisfied that he was required to do anything other than occasional physical work. With his experience in the industry he was principally employable more in a supervisory than in a labouring capacity.

24. However I am prepared to accept that, during the few months after the accident, his condition was such that he was justified in resigning from that position.

25. However it is also clear that at some time before 1991 economic conditions that overtook his employer would have meant that he would have lost that job in any event. It is simply not possible on the evidence to fix the time at which that might have happened.

26. Once his injuries settled down the plaintiff in fact carried out work on a number of building projects, where he was able to obtain assistance for such physical work as he was not able to do himself.

27. It is also clear, and it was conceded by his Counsel, that since about January of 1991 he has been capable of doing the same sort of supervisory work that he was doing before the accident, if it were available. Of course the reasons why it has not been available have nothing to do with the accident.

28. Since the accident he has, from time to time, obtained employment, for example as an evaluator with the ACT Government, and as a contract handyman for a Real Estate Agency, and has engaged in small scale building and extension works on cottages in Canberra.

29. Some of that work has involved him in short periods of quite vigorous activity, such as digging post holes with a crow bar and shovel.

30. I also think that the comment made by Counsel for the defendant was justified that the types of job for which he did in fact apply demonstrate that his own view of his abilities is not that of one who is not capable of work involving physical effort of the same range and extent that he was able to do before the accident.

31. Before the accident he had already entered into a business of hiring building equipment, in partnership with his wife. Although that activity produced a loss for taxation purposes, it is also a fair comment that it has yielded a positive cash flow. It is simply not possible to calculate a loss of earnings on the basis of a simple deduction of his past taxable incomes from what he might have earned had he continued to remain in his pre-accident employment.

32. I do not even think that the evidence permits a calculation of discounted present values in order to estimate any loss of income earning capacity for the future. Even on the submissions of Counsel for the plaintiff the maximum figure for a weekly loss would be $184.00, ranging down to $50.00, and no matter what figure was chosen in that range it would be necessary to discount it substantially, not only on account of the pre-existing pathology in the plaintiff's back but also because of the vicissitudes that attend the activities of a building foreman in the building industry in Canberra.

33. On the other hand, simply because of his physical condition he is obviously not as employable now as he would have been had the accident not happened, and had he continued to be symptom free, and it is more likely than not that as a result he has suffered and will suffer some financial loss, to an indeterminate extent.

34. He is now aged 57, and although his evidence that he might have continued to work as a foreman/carpenter until the age of 65 was not contradicted, it is by no means probable that he would have done so, again in the light of his medical condition and economic circumstances.

35. If work of the type that he was doing at the time of the accident were available, he would be capable of doing it. That work is not available because of economic conditions. In those economic conditions if he were uninjured, he would be able to obtain jobs as a carpenter at a lesser rate of pay. That employment would probably be intermittent. It is possible that he would be able to earn at it more than he has in fact earned by his occasional entrepreneurial activities. To that extent I think that there is a continuing loss of income earning capacity. It is however quite moderate.

36. I find that the only way in which I can approach assessment of this element is to combine both the past and future loss of income earning capacity, in so far as it has produced economic loss to him, and assign to it a moderate lump sum of $25,000.00. It is in the nature of such an award and the contingencies that apply to it that it would not be appropriate to award interest.

37. A claim is also made for the cost of future treatment. In the light of the number of treatments that he has had in the past, I am not satisfied that it would be proper to award damages for this element on the basis that he is going to continue to have three treatments a year for the rest of his life. I think that it is also likely that at some time in the future, again which it is impossible to fix with any certainty, he might well have required some such treatment for his lower back in any event. It is also relevant that Dr Andrews thinks that his condition could be further improved with more definitive procedures, such as a more permanent nerve block with thermocoagulation.

38. In all the circumstances I think that an award of $5,000 would be adequate to compensate the plaintiff for the cost of future treatment.

39. For his pain and suffering I would award the sum of $20,000, of which $5,000 would relate to the future. I would award $900 lump sum in lieu of interest on the past component. The out of pocket expenses amount to $5,448.10.

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

Pain and Suffering $20,000.00
Interest $ 900.00
Out of pocket expenses $ 5,448.10
Past and Future
Economic loss $25,000.00
Cost of future treatment $ 5,000.00
TOTAL $56,348.10

41. I direct the entry of judgment for the plaintiff in the sum of $51,348.10.