Alexander Nugent Reid v Ivan Tijan [1992] ACTSC 51 (21 May 1992)

SUPREME COURT OF THE ACT

ALEXANDER NUGENT REID v. IVAN TIJAN
No. SC 164 of 1991
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Aggravation of pre existing Scheuermann's Disease - No Issue of Principle.

HEARING

CANBERRA
21:5:1992

Counsel for the Plaintiff: Mr G. Lunney

Instructing Solicitors: Macphillamy Cummins Gibson, Mr Ken Cush

Counsel for the Defendant: Mr G. Parker

Instructing Solicitors: Abbott Tout Russell Kennedy, Mr D. Galbraith

ORDER

1. Judgment be entered for the plaintiff for $23,698.50.

DECISION

This is the assessment of damages for personal injury sustained by the Plaintiff in a motor vehicle accident on 25 September 1987.

2. The Plaintiff was born on 26 December 1957. After leaving school he completed his apprenticeship as a plumber and worked with Lend Lease from 1982 until 1988. He started as a maintenance plumber, was soon promoted to leading hand, and when he resigned he was maintenance foreman in control of some seventeen buildings in the Australian Capital Territory. That work involved him more in administration than physical work.

3. X-rays have disclosed that during adolescence he had contracted Scheuermann's Disease, which is a developmental condition of the spine which alters its mechanical alignment and sometimes thereby causes secondary degeneration.

4. Before the accident he had noticed some difficulty with his low back, which he classified as "plumber's back". The pain that he suffered was, he said, nothing more than a sore back at the end of the day if he had done heavy work. If he had a normal type of day, spent mainly on maintenance, he had virtually no problem at all. He had suffered injury in a motor cycle accident and another motor vehicle accident when he was younger but neither of them had affected his back.

5. In 1985 he was involved in an accident which involved some sort of explosion of a sewerage ejector pump which threw him against a wall, jarring his neck and his back. He suffered bruising and a very stiff neck and sore back as a result and consulted Dr Wright and Dr Ferguson. He was offered manipulative treatment under general anaesthetic, which he declined. The results of that accident had substantially cleared up before September 1987. However the incident highlights the fact that his back was susceptible to injury.

6. By 1987 he had gained substantial experience in building maintenance and administrative control and was beginning to plan to start in business on his own account.

7. On 25 September 1987 he was driving a vehicle along Canberra Avenue when another vehicle came through a stop sign on his right hand side. He was unable to stop in time and the front of his vehicle hit the side of the other vehicle. His speed at the time of impact was approximately 30 kph. He was wearing a seat belt. He felt a severe jarring of the neck and the back, the seat belt jarred him, and his right knee and right elbow collided with the dashboard and the door.

8. He went to see Dr Wright, his general practitioner, that same day. Dr Wright diagnosed a whiplash strain to the left trapezius muscle and prescribed local applications of heat, Panadeine tablets and physiotherapy. He was driven home and took about three days off work. He underwent the physiotherapy treatment. When he returned to work he still had some pain and was put on to light duties. When he began to do heavy work the pain became prevalent again. He consulted Dr Wright on three further occasions to 7 November 1987. The symptoms by then mainly related to the painful left trapezius muscle but also involved some pain over the whole of the spine. There were no symptoms of nerve root damage. Neck range of movements was reasonable. Dr Wright expected improvement to be slow.

9. On 12 November 1987 he was examined by Dr Ferguson. It was Dr Ferguson who had previously suggested manipulation for the previous condition. Dr Ferguson's report sets out a detailed and careful description of the symptoms to that time.

10. Dr Ferguson's description of his past history was as follows:
"Back pain:

For 10 years from 11 years before the motor vehicle accident Mr
Reid had aching pain in the whole of his back with a lot of
stooping, which occurred about once a week, lasted half an hour
at a time and subsided with activity. 12 months before the
motor vehicle accident he sustained injury at work that
resulted in upper back pain (between his shoulder blades),
which had gradually worsened, was present about 50% of the time
and spread to the sides of his chest for the first 10 months,
but since the motor vehicle accident his upper back pain had
been continuous and considerably (about 50%) worse with the
aggravating activities mentioned and was more readily increased
by the aggravating activities.
Neck complaints:
Since the incident in which Mr Reid was involved at work in
1985 he had suffered from pain in the back of his neck, which
occurred daily initially for about 3 hours a day, but had
improved and immediately prior to the subject accident the pain
occurred only occasionally under the same circumstances as
since the accident and was momentary, he had no soreness or
tenderness of his neck, his neck movements were not restricted
or stiff and clicking noises in his neck with neck movements
which he had after the work incident had almost gone. His neck
soreness and pain had been a lot worse since the subject
accident.
Right elbow complaints:
In the work incident in 1985 Mr Reid sustained bruising of the
inner side of his right elbow and persistent tenderness of the
bony prominence of that part of the elbow which had been a
little worse since the motor vehicle accident."

11. On examination Dr Ferguson found marked restriction of neck movements with pain at the limits, reduced back movement and tenderness of the whole of the lumbar spine. He described the consequences of the accident as being a general nervous shakeup together with aggravation of the pre-existing malalignment of his cervical, dorsal and lumbar spine, and possible aggravation of the pre-existing Scheuermann's Disease of his dorsal spine, which resulted in a considerable increase of his previous neck and back pain and other complaints of lesser importance.

12. The Plaintiff ceased physiotherapy during January and saw Dr Ferguson again on 27 January 1988. His complaints had worsened since he ceased physiotherapy. Dr Ferguson again recommended manipulative treatment under general anaesthesia. But again the Plaintiff did not go through with that treatment.

13. Dr Wright then referred him to Dr Morris, orthopaedic surgeon, who first saw him on 29 February 1988. Dr Morris found on examination some thoracic and lumbo sacral tenderness and extensive crepitus on flexion and extension of his knee. Overall, he commented, the Plaintiff had sustained a moderately acute neck strain as a result of the accident. The accident had aggravated the Scheuermann's Disease. He recommended ongoing conservative treatment in the form of physiotherapy and exercise.

14. Fifteen years before the accident the plaintiff had undergone a meniscectomy on the right knee, but he complained that the accident had stirred up his knee condition. On 14 March 1988 at Royal Canberra Hospital, Dr Morris performed a diagnostic arthroscopy of his right knee, as a result of which he did not feel that the plaintiff had sustained specific damage to the knee as a result of the car accident. He felt, in the light of the total condition of his in thoraco lumbar spine, that he should be advised against work that involved heavy lifting or bending.

15. In April 1988 he left employment with Raine and Horne, who had taken over the business previously owned by Lend Lease. His decision to leave did not have anything to do with the accident. He started sub-contract work for a roofing firm, but found that the physical effort required caused his back to become too sore. He obtained a management position with a real estate agency and later took up sub-contracting for another firm. In April 1989 he was involved in another motor vehicle accident in Victoria in which he fractured his ankle.

16. On 26 April 1989 he again saw Dr Morris. He was on crutches for several months after the accident but complained of severe back ache for several days. The effects of this second accident made the back worse for only three or four days and it then reverted to its baseline discomfort.

17. On 2 August 1989 Dr Keiller examined him for the Defendant. In his opinion the Plaintiff had sustained painful but non-serious injuries to his neck and right elbow and a discomfort in the thoracic spine as an aggravation of the pre-existing Scheuermann's Disease. He felt that recovery had been slow and intermittent but the residual complaints, although of a nuisance value and interfering with his sense of well-being and comfort, did not amount to any measurable impairment of function or disability.

18. Dr Andrea saw him for the Defendant on 20 September 1989. In his opinion the accident had caused some temporary aggravation to the pain in the thoracic spine that was the result of the Scheuermann's Disease. The soft tissue injury to the neck seemed to him to have largely settled down. He concluded "I think he will probably have to give up heavy work as a plumber fairly soon, because his back will not stand it much longer, but this is not due to his accident".

19. Dr Morris saw him again on 17 July 1990. He commented "I believe that Mr Reid's back condition would have eventually declared itself with or without a motor vehicle accident, but in view of the fusion together with the Scheuermann's Disease in the thoracic spine, I believe the first motor vehicle accident in September 1987 was instrumental in stressing this thoracic vertebral spine to the extent that it produced this long term backache. I believe that irrespective of a motor vehicle accident Mr Reid would have been physically incapacitated for full time employment as a plumber prior to his usual retirement age of 65 years and that the motor vehicle accident in 1987 I think may have hastened this inability by approximately five years".

20. Dr Keiller saw him again on 5 September 1990 and read Dr Morris' report. He commented that the basic course of the ongoing complaints was the vertebral fusion associated with Scheuermann's Disease and related degenerative changes. Almost certainly the Plaintiff would have become symptomatic at that level irrespective of any trauma. The trauma had made him symptomatic to a significant degree and the accident in September 1987 was the trigger for his ongoing problems. If he had not had the accident he would have remained asymptomatic or relatively so, for a longer period if not indefinitely, although he thought the latter unlikely. He continued, "Certainly it is possible that he would have remained at a lower level of symptoms until the end of his working life, and as there is some risk that further changes may limit his working life (as Dr Morris says by about five years, and I would agree with that) then should that occur the incident of September must be considered as having played a significant part in the aetiology. For the present he remains fit for all types of work albeit at the expense of continuing discomfort".

21. On 29 October 1990 Dr Corry saw him for the purpose of giving a report to his solicitors. He agreed in general terms with Dr Morris' statement that, given that he was doing heavy plumbing work, disability in the future was probably inevitable. Acceleration of the disability by about five years would seem a "reasonable best estimate".

22. The only doctor who gave evidence and was cross-examined was Dr Morris. In his evidence in chief he said at one stage that given the Plaintiff's occupation and with his underlying back condition he thought it likely that he would by now have similar symptoms to what in fact he has. Later questioning I think brought him round to the opinion that he had expressed in his written report. In view of the comments of the other doctors I think that it is reasonable to accept the proposition that the accident exacerbated the underlying condition and accelerated the symptoms of it by about five years.

23. After he had recovered from the effects of the 1989 accident he went into business in partnership with his wife under the name of Precision Plumbing Services. As a general rule he does repetitive maintenance programs within commercial buildings and small commercial alteration work. He finds it difficult to do much of the physical work and is hoping to build the business up to a stage where he can employ someone to do the physical work, leaving him to take care of the administration. He feels that it would be necessary to employ another person, probably a fourth year apprentice, by the end of this year.

24. A claim was made in the particulars for the value of assistance given to him by his wife for half an hour each day to massage his back and neck after work. I do not think that these services are of the type that it would be reasonable to pay for, and I do not propose to make any award under the principles in Griffiths and Kirkmeyer.

25. The only sum claimed for past loss of income is $922.50.

26. For the future there is no identifiable financial loss which can be calculated. There is the possibility that if his business were to fail he would be unable to find employment as a plumber doing physical work because of his condition, but that condition is such that he might well have arrived at that stage in the fairly near future even had he not been injured in this accident. I do not think that it is possible to make a separate award on this account, but I feel that I may include that consideration in awarding general damages.

27. Taking that into consideration for his pain and suffering and loss of amenity and the risk of some possible future loss I would award the sum of $20,000, of which $5,000 relates to the future. In lieu of interest I would award the sum of $1,700 which is an approximation of the figure arrived at by the application of a two percent interest rate.

28. The out of pocket expenses are agreed at $1,076. The total award is therefore made up as follows:

Pain and suffering $20,000.00
Interest 1,700.00
Out of pocket expenses 1,076.00
Past loss of income 922.50
TOTAL $23,698.50

29. I direct the entry of Judgment from the plaintiff in the sum of $23,698.50.