Kazimierz Urbaniak v Ljubisa Milosevic [1992] ACTSC 49 (18 May 1992)

SUPREME COURT OF THE ACT

KAZIMIERZ URBANIAK v. LJUBISA MILOSEVIC
No. SC 269 of 1990
Assessment

COURT

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

CATCHWORDS

Assessment - Personal Injury - Motor Vehicle Accident - Cloward's Procedure - Pre-existing Cervical Disease - Loss of Opportunity to Work beyond Retirement - No Issue of Principle.

HEARING

CANBERRA
18:5:1992

Counsel for the Plaintiff: Mr Gordon Richardson

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Defendant: Mr R. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

Mr Colin Blain

ORDER

Judgment be entered for the plaintiff in the sum of $97,460.15.

DECISION

This is the assessment of damages for personal injury received by the plaintiff in a motor vehicle accident on 19 January 1989.

2. At the time of the accident the plaintiff was 63 years of age and was in good health. In particular he had no previous difficulties with his neck. He was a senior inspector of cleaning services with the Department of Administrative Services in Canberra.

3. In the early afternoon of 19 January 1989 the plaintiff was driving a motor vehicle in Canberra Avenue Fyshwick. He stopped at an intersection intending to turn left. While he was stationary a vehicle driven by the defendant collided with the rear of his vehicle. He was wearing a seat belt. The collision was not a violent one. He did not feel any immediate pain or discomfort, and proceeded to finish work at the usual time. That night he woke with pain in the neck and a headache.

4. The next morning he went to see his local doctor, Dr Niewiadomski. The doctor's report comments that he had never complained of cervical pain or headaches, but after the accident he was complaining of neck pain radiating to the shoulders, up to the head, and down to the interscapular region. On examination his neck was stiff and rotation was limited. X-rays were taken which showed marked narrowing of the disc space at C6/7 with adjacent osteophyte formation. The doctor prescribed analgesics and referred him to Dr Newcombe, neurosurgeon. Although the plaintiff returned to work the following Monday and Tuesday, Dr Niewiadomski gave him a certificate and he initially took about three and a half weeks off work.

5. He returned to work for about four weeks in order to supervise the preparation of a tender for the cleaning contract for the Russell Offices. His pain got worse.

6. On 7 April 1989 he was seen by Dr Newcombe. He found restriction of lateral flexion of the neck to thirty degrees to each side. He arranged for a CT scan, which was done on 1 May 1989. It revealed prominent disc bar and osteophyte formation at the C6 level.

7. Because of the continuing pain Dr Newcombe advised an operation to which the plaintiff consented, and on 13 June 1989 at John James Hospital a Cloward's procedure was done at the C6/7 level. Initially this gave good relief of the pain that he had been suffering in his right arm and reduced the neck pain and headache.

8. For the first six months after the operation he felt better but then the pain in the neck and the headaches returned and continued slowly to get worse. In his report of 23 November 1989 Dr Newcombe stated that in summary the plaintiff continued to suffer from aggravation of cervical spondylosis caused by the injury of 19 January 1989. Some symptom had been relieved by the surgery but there were residual disabilities which resulted in continued incapacity for work.

9. Dr Newcombe did not expect any significant improvement and because of the plaintiff's age recommended early retirement.

10. The plaintiff remained on workers' compensation and in fact retired at the age of 65 on 17 February 1990.

11. On 6 April 1991 Dr White, neurologist, examined him at the request of his solicitors. He was complaining of,

1) Cervical pain which was constant and radiated
into both shoulders of both arms, and fluctuating
in intensity on each side independently;
2) constant headaches, again fluctuating in
intensity;
3) poor memory and depression.

12. He stated that he was still able to undertake most of his usual home activities but was markedly limited both in terms of the force he could exert and his tolerance to effort. The cervical spine was tender. There was a full range of movement but pain on extension.

13. Dr White's conclusion was that he had pre-existing disease which had been asymptomatic and which might have remained asymptomatic indefinitely had the accident not happened.

14. He was limited in terms of his activities and would probably remain so indefinitely because of pain. He felt that psychogenic factors were involved, but that they were secondary to the chronic pain. He was clearly of the opinion that he was not fit for any work and believed that there would be a continuing deterioration, the only treatment for which would be directed at pain control.

15. His solicitors then referred him for an opinion to Dr Veness, Psychiatrist, who saw him on 13 February 1992. He gave Dr Veness a history which was consistent with his evidence in general and with the complaints that he had made to the other doctors. He told Dr Veness that he had become very much depressed and had even on occasions had suicidal thoughts. He had been devoted to his job, which he was missing. Dr Veness diagnosed a reactive depression, which he attributed to the chronic pain and disability combined with the loss of job, loss of status and loss of purpose in life.

16. None of the doctors whose reports were tendered by the plaintiff were cross-examined, and although he was examined by three doctors for the defendant their reports were not tendered.

17. The plaintiff was cross-examined about a video tape which was taken showing him walking about in a shopping centre and parking area. All that could be said of the video tape is that it showed him moving his neck to a greater extent than he demonstrated in Court. Generally his movements appeared quite consistent with his complaints and there was nothing in it that caused me to place any less weight on his evidence.

18. The plaintiff gave evidence that he had intended to work in a supervisory capacity with a private cleaning company after his retirement. Evidence was given by the proprietors of two such businesses who would have been prepared to employ him and who had in fact asked him to contact them on his retirement. I am satisfied that the plaintiff did in fact intend to carry on his occupation for two years after retirement. I am not satisfied that he had an intention to carry on for any much longer period than that.

19. The loss of the enjoyment that he would have taken in continuing to work at a job that gave him satisfaction is also a matter that must be taken into account in assessing general damages.

20. In summary the plaintiff sustained, in a relatively minor accident, a significant aggravation of a degenerative condition of his cervical spine which had till then, been asymptomatic. The degree of pain was such that he reasonably underwent an operation, which, although it got rid of some symptoms in his arm and hand, only made the situation better for about six months. His condition can only get worse. The pain is relatively constant. He was forced to give up a job he enjoyed, and the opportunity of continuing in it.

21. The accident and its aftermath have had a more marked effect upon his emotional state than they might have had for another person, but the defendant must take his victim as he is.

22. For his pain and suffering I would award the sum of $30,000.00 of which $10,000 relates to the future. As a lump sum in lieu of interest on the past component of that amount I would award the sum of $1,300.00.

23. The out of pocket expenses are agreed at $4,511.96. His loss of earnings for the period up to his 65th birthday is agreed at $18,026.99. Since he was in receipt of workers' compensation no interest is allowed on that figure. The Fox v Wood figure is agreed at $7,221.20.

24. A claim was formally made for the value of assistance given to him by his wife. I am not satisfied that they are the sort of services that would have been paid for and I do not propose to make any award pursuant to the principles in Griffiths v Kerkemeyer.

25. So far as the claim for loss of earnings after his retirement is concerned, both the doctors who adverted to the matter have given it as their opinion that the plaintiff could well have continued to work for another two years at least without developing any symptoms from his pre-existing degenerative condition. Nevertheless it is quite on the cards that some other accident, just as minor as the one the subject of this action, might well have prevented him from working for the whole of that period.

26. Both the gentlemen who were prepared to offer him employment spoke of remuneration together with the use of a company car which was of the order of $35,000 or more a year gross. In the light of the discussion during the addresses, I considered myself at liberty to refer to material such as the tax table A at page 85 of the Tax Pack Form issued by the Australian Taxation Office which shows that tax on a taxable income of $35,000 is $8,799.00, which leaves a nett amount of $26,201.00.

27. The opportunity that he lost therefore could have yielded him an amount of $52,000.00 or more over the two years. Since he has in fact survived for more than the 2 years in question the only contingency for which that sum should be reduced is that relating to the pre-existing state of his neck. It is true that the nature of the work that he was doing with the department was such as to involve some risk above the average that he might have suffered injury to his neck but I do not think that circumstances call for any greater discount than 30%. I therefore award the sum of $36,400.00 for the loss of opportunity to work after his compulsory retirement from the public service.

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

Pain and Suffering $30,000.00
Interest $ 1,300.00
Out of pocket expenses $ 4,511.96
Loss of earnings to
retirement $18,026.99
Fox v Wood $ 7,221.20
Loss of opportunity to
work after retirement $36,400.00
TOTAL $97,460.15

29. I direct the entry of judgment for the plaintiff in the sum of $97,460.15.