Farouk Nchouki v Frank Joseph Van Der Korput Farouk Nchouki v Richard William Ruhfus [1993] ACTSC 101 (19 November 1993)

SUPREME COURT OF THE ACT

FAROUK NCHOUKI v. FRANK JOSEPH VAN DER KORPUT
FAROUK NCHOUKI v. RICHARD WILLIAM RUHFUS
Nos. SC2011 and SC2012 of 1986
Number of pages - 15
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Damages - Assessment - Personal injury - Whiplash - Pre existing spondylitis - Aggravation - Two successive accidents - Work capacity - No issue of principle.

HEARING

CANBERRA, 6-7 April and 5-7 July 1993
19:11:1993

Counsel for the Plaintiff: R. Mildren

Instructing Solicitors: Meyer Boettcher and Clapham

Counsel for the Defendant: L. Morris QC/P. O'Connor

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

Matter No. SC2011 of 1986
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $43,461.

Matter No. SC2012 of 1986
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $86,890.

DECISION

MASTER A. HOGAN These two actions for damages for personal injury are being heard together by consent of all the parties. The evidence in each case is accepted as being evidence in the other.

2. Both actions arise out of motor car accidents. The first accident happened on 3 December 1983 in Hodgson Street, Pearce in the Australian Capital Territory.

3. The second accident took place on 23 April 1985 in Anzac Parade Campbell in the Australian Capital Territory.

4. Liability is not in issue in either case.

5. The plaintiff is a cabinet maker carpenter, who was born in Lebanon in October 1950. He married in 1975, and he and his wife now have 5 children, aged from 6 to about 15 years.

6. After leaving Lebanon, he spent some years in Germany, until his brother sponsored his migration to Australia in 1981. He had a job at first at Canberra Kitchens, as a carpenter, but when that company closed down he went on to Social Security benefits.

7. His use of English idiom is still somewhat idiosyncratic, but when he first came to Australia it was not adequate for finding suitable employment. He took steps to improve his language skills while he was out of work.

8. The Department of Social Security is also quite idiosyncratic in its accounting practices, and various pieces of evidence from the Department about benefits paid to him over the years are beyond my ability, at any rate, to reconcile completely. But it is clear from his own evidence, which in this instance agrees with that from the Department, that he began to receive unemployment benefits in March 1982.

9. He says he looked for work, but by 2 December 1983 he had not found any.

10. On that date, a Friday, he was driving a car from Woden Shopping Centre to his flat in Mawson. He stopped in obedience to a traffic light, when a car driven by the defendant in the first action collided with the back of his car.

11. He was thrown about in the impact, but did not lose consciousness. At first, as he expressed it, he felt, "I do not believe it, like a dream, serious, like a dream."

12. After about an hour he felt pain in the middle of his back and his neck.

13. After the police had investigated, he went home. As he was later still in pain, his wife took him to Woden Valley Hospital. X-rays taken there did not show any abnormality. He was given tablets and allowed to go home.

14. The following Monday he consulted Dr Bishop, a general practitioner in practice near his home. He complained to Dr Bishop of whiplash injury to the neck, bruising over the right distal fibula, causing pain, and back pain at the L1/L2 level on the left hand side. Further x-rays showed no bony injury of the ankle, and degenerative spondylitis of the lumbar spine.

15. Dr Bishop prescribed tablets and light massage.

16. On review on 23 December he told Dr Bishop that his neck and ankle were good, but his back was painful. Dolobid was prescribed for the pain.

17. On 13 January 1984 Dr Bishop ordered physiotherapy, which he said took the form of heat therapy, which gave some relief for short periods.

18. He first consulted Dr Dimitri, who speaks Arabic, in April 1984, but still saw Dr Bishop in May, June and July. When Dr Bishop last saw him he was still complaining of pain in the lumbar spine and neck, and Dr Bishop was still recommending tablets and physiotherapy.

19. In an undated report, which appears to have been written before the second accident, Dr Dimitri noted that the plaintiff had improved over the 3 months following the accident, but that his neck and back pain became a problem after carrying out any exercise, doing any type of work or lifting any heavy weight. There had been a number of severe exacerbations of pain, as a result of which the plaintiff had become anxious and depressed.

20. According to the DSS letter in Exhibit "1" the unemployment benefit that he was receiving at the time of the accident ceased on 26 June 1984. It started again on 10 July 1984, and was paid till 8 August 1984. There was then another break in his receipt of benefits, until he received sickness benefits from 21 August 1984 till 13 November 1984. He then received unemployment benefits from 16 November 1984 till 24 April 1985, the day after the second accident.

21. In October 1984 Dr Guirgis, orthopaedic surgeon, examined him at the request of Dr Dimitri.

22. On examination he found localised tenderness and some limitation of movement over the dorsal spine. X-rays showed anterior wedging of D11 and D12 indicating injury to the anterior longitudinal ligament and the intervertebral disc at that level. He advised physiotherapy and anti inflammatory medication, and considered him to be unfit for activities that would place stress on his dorsal spine. He did not expect the plaintiff's condition to improve, but rather that spondylotic change would occur earlier and progress faster than would be expected for his age group.

23. Dr Corry, rehabilitation specialist, examined him on 1 November 1984.

24. He complained of persisting pain in the low neck, spreading to the shoulder blade, and occasionally to the low back. Sometimes he was completely pain free, but pain would be brought on by heavy activity. He told Dr Corry he had not been in employment since the accident.

25. Dr Corry found a full range of pain free movement and no local tenderness or muscle spasm. X-rays of 6 September 1984 showed no abnormality in the cervical spine, and only residual evidence of minor localised Schuermann's disease in the lower thoracic region.

26. That is a very different picture from that painted by Dr Guirgis. Dr Corry does not seem to have been shown Dr Guirgis's report, and none of the doctors whose reports are in evidence were called to give evidence or be cross examined. Neither counsel suggested to me any way of reconciling the two views, or of choosing one as being more credible than the other. After the second accident a number of doctors who examined him described the effects of this first accident as being restricted to soft tissue, whiplash type, injury, and it is noted that on 2 November 1984 his sickness benefits ceased, and unemployment benefits recommenced on 16 November 1984. It is therefore possible that at that time he was representing to the Department that he was prepared to accept paid employment. I therefore accept Dr Corry's opinion as being the more likely to give the accurate description of his condition.

27. Dr Corry's conclusion was as follows:

"Conclusion:
The history I obtained is consistent with a mild whiplash type trauma to
the neck and to a lesser extent the low lumbar region in the motor

vehicle

accident described. Acute symptoms appear to have settled after a period
of days and he has persisting minor complaints of pain brought on by

heavy
work activity. Over the period of time since the accident there has been a

gradual improvement in symptoms. From his description of his symptoms it
would appear that he would still have difficulty working as a
carpenter/joiner where heavy work is sometimes required. It is possible
with a more intensive programme of physical exercise he may improve
sufficiently to return to this type of work. If not, he should be fit

for
a range of lighter alternative employment and he would be eligible with the

Commonwealth Rehabilitation Service for possible re-training. I would
therefore regard him as a suitable candidate for further rehabilitation
assistance and would believe that there is a high probability that this
would lead him to being able to return to suitable employment."

28. The plaintiff had at some time had printed a business card, advertising his services as a carpenter for kitchens, pergolas and verandahs. I am not confident that he had done that as early as the beginning of 1984. But he also advertised in the yellow pages and during 1985, he claimed in evidence, he began to get some work as a carpenter, doing small fitting out work for cottage builders.

29. Dr Corry re-examined him on 12 March 1985. He told Dr Corry that he was keen to do lighter work, and had applied for jobs at Woden Valley Hospital and in the Postal Department, without success. Dr Corry arranged for assessment by the Commonwealth Rehabilitation Service. Dr Corry does not report that he told him anything about any carpentry work that he had been doing.

30. On 22 March 1985 he began working as a cleaner for Limro at Woden Valley Hospital, working 4 hours a day for 5 days a week.

31. The group certificate lodged with his 1985 taxation return showed that Limro paid to him gross wages of $1,391, from which $166.00 tax was deducted. In 1989 an accountant amended those figures to $1,529, and $206.00, giving net $1,323. The amendment was not explained.

32. His taxation return also included statements of benefit from the Department of Social Security, totalling $7,133. Neither the periods nor the amounts tally with those set out in the Department's letter in Exhibit "1". That figure also was amended in 1989 to $9,464. There is no explanation of that amendment either.

33. His return also disclosed income from carpentry activities of $4,700, with expenses for materials totalling $4,002. Other deductions such as car and telephone expenses resulted in a loss from carpentry activities of $2,370 for that year.

34. The plaintiff was cross examined about his continuing to receive benefits while in receipt of other income. By no stretch of the imagination could it be suggested that his answers in cross examination were direct or enlightening. But I am still not prepared on the basis of the evidence to draw any inference adverse to him from his inability, which I share, to reconcile the dates on which he was working with the periods in respect of which he claimed benefits. The period in respect of which benefits are claimed is not the same as the period over which they are paid, as any recipient of benefits can testify. And the evidence in this case demonstrates that dates extracted from the records of that Department are not a very secure foundation on which to base any inference, let alone one of a conscious attempt to defraud.

35. The plaintiff was observed, and his activities recorded on video tape, on many occasions and during periods that are relevant in this case.

36. The first segment relates to a period on 16 April 1985. It shows the plaintiff doing light carpentry fitting out work at a house in Isabella Plains. He was able to move briskly and without any sign of discomfort between the cottage where he was working and his vehicle. The type of carpentry that he was doing was not heavy, but he was able to bend down repeatedly and hammer above his head and at floor level without any apparent difficulty. He dragged a heavy generator backwards into a garage, and later assisted another man to lift it onto the back of a truck.

37. As I understood his evidence, the picture that he painted in re-examination about the work he was doing as shown in that segment of the videotape was that at that time he was feeling normal. He had occasional pain, but was able to handle the sort of work shown on the tape without any problems. That is consistent with my observation of the tape.

38. In summary, as a result of the first accident he suffered a mild to moderately severe whiplash injury, which affected soft tissue only, and which largely cleared up over a period of about 16 months. He had an existing pathology in his spine, which had not been symptomatic before the accident, and which already predisposed him to injury. The injury caused by the first accident increased that predisposition to some extent, but not to the extent that it affected his future capacity to work in any way that can be marked other than by taking it into account in assessing general damages. For practical purposes, his general damages are all in the past, and for that item I award $25,000.

39. In assessing interest on that item, I would take a time in about the middle of the period of his recovery, say about July 1984, and allow 4 percent from that time. On that basis I award $9,000 for interest.

40. The out of pocket expenses for the first accident were $460.83.

41. Had he not been injured he would have continued to look for work, and would probably at some time earlier have begun to earn money by the sort of activity in which he was engaged during the month before the accident, namely, part time work as a cleaner and part time casual carpentry as an independent contractor. His income earning capacity as a cleaner was about $133.00. What it was as a carpenter is more problematical, but the proportion of earnings to expenses could well have improved with greater turnover. There is no definite date that can be shown as the date from which he would have been able to find work. Assessment of his past economic loss is therefore a judgment about the value of a lost opportunity rather than the calculation of actual loss.

42. On that basis I would award $5,000 for past economic loss. In lieu of interest on that item I award the lump sum of $4,000.

43. The total award in the first action is therefore made up as follows:

General damages $25,000
Interest 9,000
Out of pocket expenses 461
Past loss of income 5,000
Interest 4,000
______
TOTAL $43,461

44. In the action No 2011 of 1986, Nchouki v Van der Korput I direct the entry of judgment for the plaintiff for $43,461.

45. I will hear counsel's submissions on the question of costs.

46. On 23 April 1985 he drove to the home of a potential customer in Dickson. He quoted $450.00 for an alteration to the front door of the house. His quote was accepted, and he received $200.00 deposit. On his way home he was involved in the accident which is the subject of the second action.

47. He now remembers little of the actual collision. He has no memory of getting out of the car. He remembers sitting on the grass by the road. He had difficulty breathing. Police and the ambulance were called and he was taken by ambulance to Royal Canberra Hospital, where he arrived at 8.23 pm.

48. He was complaining of back pain and a painful right hip, and grazing to both shins. From the hospital records it appears that he was able to give a description of the accident, and the notes show that no loss of consciousness or amnesia was claimed.

49. Examination revealed tenderness over the lower thoracic and upper lumbar spine. There was a full range of movement, except for decreased flexion. There was tenderness over the lateral aspect of the right hip. Both shins were grazed.

50. X-rays revealed minor degenerative changes, but no bony lesion, in the lumbo sacral spine. In the thoracic spine there were signs of old Schuermann's disease.

51. He was given a Pethidine injection and kept for observation for some hours, and then discharged with Codral Forte and advice to rest in bed for one week.

52. In his evidence in chief he said that he was not able to sleep that night, but, although he wanted to go to work, he was not able to do so, and spent a week sitting at home, watching TV and talking to his wife.

53. In fact he visited Dr Dimitri on that day, 24 April 1985. He told Dr Dimitri that he was hit on the right side by a vehicle which failed to give way at an intersection. He had suffered momentary loss of consciousness, but regained it on admission to hospital.

54. He complained to Dr Dimitri of severe persistent headache, pain in the left forearm, pain across the right hip and severe neck and chest pain.

55. On examination, Dr Dimitri found:

- tenderness and restriction of movement of the cervical spine and
marked tenderness over the trapezius muscles;
- marked bruising on the outer upper third of the left forearm and
left shoulder;
- tenderness over the dorsal spine and tenderness and spasm over the
paraspinal dorsal muscles;
- marked tenderness over the front chest wall;
- some tenderness over the lumbar spine, with restricted and painful
movement; and,
- tenderness and bruising on the right buttock.

56. There were no abnormal neurological signs.

57. X-rays did not show any fracture.

58. He prescribed rest, analgesics and a cervical collar.

59. In cross examination he began by insisting that on 24 April he stayed at home. Then he conceded going by taxi to see the doctor and to see his damaged car. He also later agreed that he might have gone, by taxi, to see the person to whom he had given the quote for work on his front door. Later he said that he went in his brother's car to do some shopping at Kingston.

60. It was then suggested to him that he was driven by a relative to the house at Dickson, he had changed into overalls, and took some tools into the house. He eventually said, I think, that he remembered going there, but was not sure on what day.

61. Counsel's task of putting clear, simple propositions to him was not made easy by his failure to respond directly to the questions. Sometimes he may not have understood the questions. Sometimes he evaded them deliberately. At other times he responded with sarcasm, which counsel hoped was an admission.

62. But overall I was not at all confident that he was doing his best to tell the plain truth about his activities on the day after the accident, because he knew that the truth was that he did not spend the whole day sitting around at home, in pain.

63. He was shown the second segment of videotape, recorded on 24 April 1985. It shows him at his home, wearing overalls, putting some articles in the boot of a car. He got in on the passenger's side, and was driven away.

64. He admitted that he went to the house at Dickson, went inside and spent over 2 hours there, but denied that he did any work while he was there. Despite obvious grounds for suspicion I am not persuaded that I should disbelieve him on that point.

65. His unemployment benefit ceased at about this time, and he was paid sickness benefit from 1 May 1985.

66. During cross examination he said that he went back to work with Limro after 16 days. In evidence in chief he said it was nearly a month before he began again, and that he took his wife with him to do the heavier work, such as using the polishing machine. He tried to use the machine, but could not control it, and it caused him pain.

67. In August 1985 Dr Dimitri reported that his condition had shown signs of improvement after about 6 weeks of treatment. His bruises had all subsided. He then had residual neck and back pain, which was acutely exacerbated by attempts to do heavy work.

68. It appears that he began to do some carpentry work about 2 months after the accident, though his ability to get back into business was restricted through lack of a motor vehicle.

69. In early 1986, his job with Limro ceased, possibly because he was not doing the job well enough, because of pain.

70. His sickness benefit finished on 28 February 1986, and unemployment benefit started on 14 March 1986. It is probable therefore that at about that time he was prepared to represent to the Department that he was able to take paid employment.

71. Dr Corry examined him on 18 April 1986. He told Dr Corry that he rested in bed at home for 6 weeks after the accident, which is obviously inaccurate. He also confirmed to Dr Corry that he had applied to CES for work, and in particular was looking for work involving driving. His major complaints were of pain in the neck, mid back and lower back. Some days he would be free of pain, but on others headaches would be associated with neck pain, and heavy lifting brought on lower back pain.

72. On examination Dr Corry found slight restriction of movement of the cervical spine and tenderness over the right trapezius muscle. External rotation of the right shoulder was limited by 10 degrees as a result of muscle spasm. There was a full range of lumbar spine movement.

73. Dr Corry's conclusion was that in the 1985 accident he sustained various bruises and an aggravation of his pre existing whiplash injury to his neck and dorsal region. He had not then yet recovered to his pre accident condition. His tolerance for activity had, however, not been greatly altered.

74. He thought that the observable muscle tension and spasm in the neck could be helped by intensive physiotherapy, but the plaintiff said he could not afford it. He expected gradual improvement, and did not expect the injury to lead to premature degenerative change or retirement from work.

75. On 9 July 1986 Dr Andrews, neurologist, examined him for the defendant. He told Dr Andrews that he had recovered from the first accident before the second, but that he had not been able to work at all since the second accident.

76. On examination Dr Andrews noted that he walked without restriction. Neck movement was restricted only on flexion and extension. He did not detect tightness of neck muscles. There were findings of sensory disturbance in the left leg, which Dr Andrews thought were functional.

77. Dr Andrews could find no specific evidence of damage to his spine. There was a great deal of functional overlay present. He was fit for the sort of work a carpenter would do in a factory.

78. The plaintiff agreed in cross examination that in about August 1986 he was making cupboards in his garage.

79. Dr Corry re-examined him on 3 October 1986. He reported little change since May, though on questioning Dr Corry thought his pain symptoms were improving, especially the headaches and neck pain. His major complaint was of pain and stiffness in the lower back and right leg. He said he was doing unpaid casual jobs for friends, and had been looking for work without success.

80. Dr Corry assessed him as fit for selected light duties, and suggested help through the Rehabilitation Service. He did not advise any other treatment.

81. In late 1986 he was observed and videotaped, driving a vehicle, walking and unloading rubbish at the tip, but there was nothing in those segments that seemed to me to be inconsistent with what he was telling the doctors at the time.

82. In February 1987 he obtained a job at Duralite, but found the work of handling large frames too heavy and resigned after 6 weeks.

83. In May 1987 he was videotaped fishing at Batemans Bay, in an episode that was no doubt peaceful and relaxing for him, but was excruciatingly boring and irrelevant for me. He did some light carpentry work for his brother, but again there was nothing demonstrated that was inconsistent with his complaints, even when the videotape was fast forwarded.

84. In May 1987 Dr Dimitri confirmed the exacerbation of his symptoms while attempting heavy work at Duralite. It was Dr Dimitri who advised him to give up that job.

85. He assessed the plaintiff as being permanently fit for light duties only. He also attributed 90 percent of his disability to the first accident. It appears from his report that he placed reliance on Dr Guirgis's view that the earlier accident had caused permanent damage to the thoracic vertebrae at T11 and T12. He also thought he would never be fit to do carpentry work.

86. Since I have formed the view that the first accident caused soft tissue injury only, and in the light of the work that he has now been doing for some years for Mr Anastasiatos, I think that Dr Dimitri's view is too gloomy, and that the plaintiff was not as disabled as he thought.

87. At Dr Dimitri's request, Dr Maguire, rheumatologist, examined him on 26 August 1987. He found diminished muscles and strength in the right upper limb, which he thought could be due to multiple radiculopathy or an injury to the brachial plexus at the time of the accident. He arranged a CT scan and nerve conduction studies. The CT scan was entirely normal, as were the nerve conduction studies.

88. At the beginning of 1988 he obtained work with Mr Anastasiatos as a contract carpenter at $23.00 an hour, doing light to moderate carpentry and joinery work. It has been intermittent work, and Mr Anastasiatos still employs him. When carpentry work was not available he has found other light labouring work for the plaintiff. The work is within his capacity, though he complains of pain from time to time.

89. In February 1988 he told Dr Maguire he had returned to work full time. Voltaren was of great benefit for his arm, shoulder and neck pain. Dr Maguire discharged him from further care.

90. Dr Dimitri also referred him to Dr Gupta, psychiatrist, who saw him on 16 and 19 February 1988. He was complaining of attacks of nocturnal panicking. He had suffered such attacks earlier in his life. He told Dr Gupta the second accident resulted in unconsciousness and fractures resulting in six month long invalidity. Dr Gupta may have misunderstood him, but I do not think the obvious exaggeration matters. Dr Gupta, in February 1988, attributed the attacks to stress, which was an outcome of the legal, personal and financial problems following the two accidents.

91. On 9 March 1988 he was observed and videotaped at Erindale Shopping Centre. He lifted an obviously heavy drum of adhesive and carried it into a shop. He loaded a crate of tools in one hand and a power saw in the other into the back of his van. He pushed an empty wheelbarrow up an incline. While carrying a crate on his shoulders behind his head, he bent down and picked up an object from the ground. He helped two other men lift and carry several metres a stand with a masonry power saw on it, in a manner that would obviously have placed some strain on his lower back. All movements were performed briskly and freely without sign of discomfort or restriction.

92. His 1988 taxation return shows receipts of $4,099, from which $407.00 tax was deducted, on a series of prescribed payment forms from Mr Anastasiatos over February and March.

93. He also received over $8,000 in Social Security benefits during the tax year.

94. On 23 August 1988 Dr Andrews re-examined him for the defendant. He said he was working again. His neck pain occurred occasionally, about once a month. The low back pain had improved. On physical examination his movements were full and painless. There was a little mild tenderness over the upper lumbar spine. Dr Andrews thought he had substantially recovered.

95. His 1989 return showed gross income from Social Security of $3,761 and from carpentry work of $6,655.

96. His 1990 return showed gross income from Social Security of $6,799, and from carpentry work of $9,070.

97. For the 1991 year the figures were $10,130 from Social Security and only $3,579 from carpentry work.

98. On 12 February 1990 Dr Corry re-examined him at the request of his solicitors. There was a considerable change in the symptoms of which he complained. Whereas in 1988 there had been mainly chronic pain in the lower back and right leg, now there was stiffness, rather than pain in that region. But now his main complaint was pain, spreading from the back of the neck to both shoulders and down both arms.

99. On examination Dr Corry found that movements of the cervical spine were full, though with complaint of pain at the extreme of movement to the right. There was a full range of movement of all joints in the upper limbs, though he complained that abduction at the left shoulder was uncomfortable. There was no abnormality of the lumbar spine.

100. Dr Corry's conclusion was that the plaintiff suffered from chronic low grade musculo ligamentous pain.

101. He concluded:
"In conclusion, it is my feeling that Mr Nchouki's employment difficulties

are related more to his general uncertainty about his disability and to
pre-existing psycho-social factors than to any real physical handicap.

He

would seem to have sufficient English language skills to cope with the
types of employment envisaged."

102. I agree with that assessment. The plaintiff would not be able to do the heavy work involved at Duralite, but that was not the sort of work that his training and preferences suited him for. He is better suited for furniture and fitting out work, at the lighter, but more skilled, end of the carpentry scale. He was having difficulty in finding work that suited his capacity and temperament for over a year before the first accident. His difficulties in finding it, since early 1988 at any rate, are not attributable entirely to the effects of the subject accident. But the defendant must accept the plaintiff as the sort of person that he was before the accident. He had already had the experience of being injured and unable to work for a time because of a car accident. It is understandable that he did not appreciate fully how well or how ill he was, and that he worried about the chronic pain. The location of that pain in early 1990, and its description, are so different from what they were during the period immediately after the accident that it was, in my view, almost entirely functional.

103. Dr Corry perceived a concern on the plaintiff's part that he would do himself more harm by working in the presence of pain. He recommended a course of rehabilitation which would address his confidence in his capacities, as well as some physical conditioning and training in job searching and interview skills. Such a program would cost money, which the plaintiff did not have.

104. At about this time also, on 16 March 1990, Dr Keiller examined him at the request of his solicitors. He gave Dr Keiller an exaggerated description of the accident and its aftermath, stating for example that he had been told by a doctor to go to bed for 3 months and not to move, as he had a fracture, probably in the neck, but perhaps in the lower spine.

105. He complained of headaches, restricted neck movements, pain in the right shoulder, right elbow and left arm, and weakness in the right arm. He admitted to mild depression at times.

106. On examination Dr Keiller found some tenderness and restriction of neck movements, and tenderness over the spine, but no other restrictions of movement or any significant neurological signs.

107. He commented,

"He is maintaining his work schedule, but at the expense of continuing
discomfort and, at times, a requirement for a few days away. I believe
this will be the pattern for the foreseeable future."

108. He thought further improvement possible and did not expect any serious deterioration or complications. There could be small contribution to long term degenerative change. Treatment should remain conservative.

109. That view by the surgeon is quite consistent with that of the rehabilitation consultant, Dr Corry.

110. A further segment of video tape shows him working at a house at North Lyneham on 28 March 1990. He moved normally, which is also quite consistent with the views of the doctors.

111. Dr Andrews re-examined him for the defendant on 13 April 1990. He complained of neck pain and weakness down both arms. Dr Andrews thought the clinical signs were somewhat functional, but he thought objective tests should be carried out to clarify whether there was a cervical disc lesion or not.

112. Dr Keiller re-examined him on 30 August 1991. He complained of restricted neck movement, but not of headaches. He mainly complained of pain in the right shoulder, and weakness of the right arm, with changes in sensation in the fingers of the right hand.

113. On examination Dr Keiller found restriction of neck movement and signs of local pathology in the right shoulder. He also thought that further neurological investigation was justified.

114. Dr Andrews saw him again shortly afterwards on 9 September 1991. He understood that an arthrogram was about to be performed on the right shoulder, and that he had been consulting Dr Howse, rehabilitationist at Woden Rehabilitation Unit. There was no evidence that the arthrogram was ever carried out, nor any report from Dr Howse.

115. Dr Andrews found restriction of neck movement and some evidence of nerve root irritation. There was a degree of functional overlay, and in order to get objective evidence he proposed to conduct electrical studies. He did so, and reported on 16 September 1991 that there was no evidence of major nerve root entrapment. He concluded that the signs were largely functional.

116. In February 1992 Dr Gupta reported that he had been treating the plaintiff on and off for depression, anxiety and chronic pain since 1988. He responded well to treatment, but relapsed rapidly when it ceased. He perceived however that the court case was a complicating factor in the prognosis.

117. The defendant's solicitors arranged his examination by Dr Tym, consultant psychiatrist, who saw him on 12 August 1992, assisted by an interpreter and a number of reports from other doctors. Although at one stage of the interview the plaintiff showed some impatience and anger, he settled later and became jovial and co-operative.

118. In Dr Tym's opinion there was no evidence of any significant psychiatric illness or disorder, either then or in the past, and, in particular, there was no evidence of post traumatic stress disorder. He commented:

"From what I have been told and from what I have observed there is no
evidence to suggest any behaviour that would warrant applying the
appellation 'Personality Disorder', in particular there is no evidence to
suggest signs or symptoms of 'Inadequate', 'Neurasthenic', 'Anti-Social'

or

'Psychopathic' traits.
He is, in my clinical judgment, capable of being an irascible, impatient
man, with bullying, dominating ways if he can get away with such

behaviour

- he very easily loses his temper, becomes aggressive and tacitly
threatens
physical violence by his manner. He is equally capable of being jovial,
happy and totally relaxed. During the interview with me he was initially
bad-tempered and angry and, by the end of the interview, he was very
friendly, jovial, joking and laughing."

119. On the basis of my observations of him in the witness box I would agree with those comments.

120. I can understand his concern and reaction to the continuing pain and discomfort that he perceived, and that he might well experience comfort and relief from the ministrations of Dr Gupta, but I am not persuaded that he suffers from any psychiatric illness.

121. Dr Tym mentioned that there were signs of a partial ulnar nerve lesion at the right elbow. They appeared to him to be genuine. But if further electrical studies did not show objective signs then he would strongly suspect deliberate dissembling.

122. Those further tests were not carried out, but in any event there is no evidence that the accident in 1985 caused any ulnar nerve lesion that did not become apparent until 1992.

123. In March 1992 Dr Vance, orthopaedic surgeon, examined him for the defendant. He also perused the extensive accompanying medical literature about him.

124. The plaintiff complained of pain all the time, extending from his neck to his right shoulder and into his right hand.

125. On examination Dr Vance found a little restriction in extension of the neck, and abduction and rotation at the right shoulder. Otherwise movements were full and free. There was some evidence of slight weakness in the right hand.

126. In his opinion the plaintiff had more or less recovered from the 1983 accident by the time of the 1985 collision. From the later accident his main symptoms related to his neck region, and resulted in soft tissue damage to the cervical region, together with aggravation of his dorso lumbar spine. He concluded:

"Over the last twelve months symptoms have concentrated more on his right
arm where there is some evidence that he has a rotator cuff or

pre-arthritic

condition in relation to his right shoulder and there is also a
little evidence that he may have developed a minor degree of involvement

in

relation to his ulna nerve in his hand. I am aware that the nerve
conduction tests did not reveal any abnormality and I feel therefore that
any possible pathology in relation to the hand would have to be minimal.
In my view he is fit for the work of a cabinet maker/carpenter and has
probably been fit for this sort of work since around 1986. I do not
consider his shoulder symptoms to be related to either motor vehicle
accidents.
In regard to his dorso-lumbar spine I believe it is likely that he did
aggravate previously existing minor degenerative changes in the lower
dorsal region of his spine but the aggravation would have been relatively
short-lived and he now has a full and pain free range of motion and this
would not prevent him from carrying out his normal work."

127. As I commented before, none of the doctors were required for cross examination. I think that the shoulder and right arm symptoms appeared so long after the accident that Dr Vance's opinion that they are not related to either accident, is probably correct. In general I agree with Dr Vance's opinion.

128. The final segment of videotape shows the plaintiff working at the Hellenic Club on two occasions in March 1993. He was using a broom and a spade to put rubble into a rubbish container. He also helped others handle light but bulky sheet metal and timber pieces. He moved freely, without any sign of restriction or discomfort.

129. He obtained work at the Hellenic Club in August 1992, fitting laminex. From 25 August 1992 to 12 February 1993 he earned $12,482.50 net. When allowance is made for the Christmas break that shows an income earning capacity, doing the sort of work for which he is suited, of something over $600.00 a week. Evidence that he gave of earnings between April and July 1993 were consistent with that figure.

130. In summary, the plaintiff, who had only recently recovered, substantially but not completely, from a whiplash injury in a motor car accident in 1983, was involved in a more violent collision, which again damaged soft tissue in his cervical area, back and right hip.

131. He was violently shaken up in the collision, but did not lose consciousness. He was given pain relief at the hospital, and then treated conservatively at home.

132. He was able to move about, and was not confined to bed, but he obviously suffered considerable pain in the neck and back for some months. His recovery was slow, and the experience caused him anxiety, but by the last quarter of 1986 he was certainly capable of, and in fact was doing, light carpentry work, on a part time basis.

133. He was not yet fully fit for unrestricted work in February 1987, as his experience with Duralite showed. But by the beginning of 1988 he was fit for the sort of work that he would have been likely to seek had he not been injured, as his experience with Mr Anastasiatos showed. By the end of 1988 he had substantially recovered from the effects of the second accident. There remain however some lingering symptoms. As I have held, the shoulder and arm symptoms are not related to the accident.

134. For his pain and suffering I award him $30,000. No substantial part of that relates to the future. I think it appropriate to estimate interest on that award from about the end of 1986 at 4 percent. I award $8,000 as interest on general damages.

135. The out of pocket expenses were agreed at $6,890.

136. The estimation of past economic loss is complicated by the Social Security payments. There were certainly overpayments, but I accept his evidence, and that of his wife, that they have been adjusted to the satisfaction of the Department. That is relevant really only so far as their credit is concerned. But I think that there is an element of truth in the suggestion made on behalf of the defendant that his access to benefits made it possible for him not to return to work as soon or as constantly as he might otherwise have done. But another, more important, reason why he did not get back to reasonably full time work until late 1992 was the combination of his lack of language skills, the state of the building industry, and the sort of work that he was suited for. None of those are the responsibility of the defendant.

137. For those reasons I do not think it is appropriate to take an estimate of what he could possibly have earned, subtract what he did earn, and then discount that figure on account of contingencies.

138. I think that it would be wrong to hold the defendant responsible for any lack of employment after the end of 1988. For the period from 23 April 1985 till then it is probable that he would not have been in constant employment even had the accident not happened. What effect this finding has upon his obligation to pay money back to the Department I do not know, but even if I did it would not be a consideration relevant to the assessment of damages at common law between the plaintiff and the defendant.

139. Again, as in the first action, I think the only proper approach is to make a discretionary judgment about the loss of, and then impairment to, an opportunity to obtain such paid employment as he was suited for.

140. I would assess that at $30,000. An indication of the award of interest on that element is 8 percent on the whole amount for 5 years, which is $12,000. That seems to me an appropriate sum to award for interest.

141. It follows from my findings that there should be no award for future economic loss.

142. The total award in the second action is therefore made up as follows:

Pain and suffering $30,000
Interest 8,000
Out of pocket expenses 6,890
Past economic loss 30,000
Interest 12,000
______
TOTAL $86,890

143. I direct the entry of judgment for the plaintiff for $86,890.