Wayne Oliffe Monck v Kim Svensson [1993] ACTSC 112 (17 December 1993)

SUPREME COURT OF THE ACT

WAYNE OLIFFE MONCK v. KIM SVENSSON
No. SC281 of 1990
Number of pages - 7
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Thoracic musculo ligamentous strain - Loss of income earning capacity - Not productive of actual loss - No issue of principle.

HEARING

CANBERRA, 21 July 1993
17:12:1993

Counsel for the Plaintiff: G. Lunney

Instructing Solicitors: Gallens Crowley and Chamberlain

Counsel for the Defendant: C. Whitelaw

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $73,075.

DECISION

MASTER A. HOGAN This is the assessment of damages for personal injury which the plaintiff alleges he sustained in a motor car accident on 23 May 1984.

2. The plaintiff is a single man, living with his girl friend near Moruya. He was born in Canberra on 15 July 1957.

3. He left school at the age of 15, and worked for a year as a motor mechanic. There were then a number of years during which he worked at various unskilled jobs with some periods of unemployment.

4. At the age of about 17 he began to use illegal drugs, and was soon introduced to heroin. By 1981 he was dependent on it, and using it every day. He was also a heavy drinker of alcohol.

5. Although he was involved in two motor car accidents, in 1973 and 1974, he was not injured in them, and in 1984 the only respects in which his health was adversely affected were the effects of heroin and alcohol abuse.

6. In May 1984 he began to train as a taxi driver, and on 23 May 1984 he was a passenger in the front seat of a taxi being driven by his instructor when it was involved in a collision with a car which failed to obey a give way sign. The other car struck the taxi from the right hand front, and forced it up onto the gutter, where it collided with a tree or a post.

7. The plaintiff was jolted sideways in the initial impact, and then was thrown forwards and back when the taxi came to a sudden halt.

8. He was wearing a seat belt, and did not suffer any head injury.

9. He was taken by ambulance to Royal Canberra Hospital, where abrasions and bruising to the left hip and pelvic region were noted. Pelvic x-ray disclosed that there were no fractures. He complained of a sore hip and chest. He was not given any specific treatment, and was allowed to leave.

10. He felt very stiff and sore for a week or two, and then took up his driving lessons again. Over this period he continued to use heroin.

11. He obtained a licence, and began driving for his instructor and other cab owners.

12. In March 1985 he was convicted in this Court of an offence involving the possession of heroin, and was sentenced to a term of imprisonment.

13. He was taken first to Goulburn Prison, where he spent six weeks. During that time he endured the process of withdrawal from heroin dependence.

14. He was then sent to the prison farm at Mannus, near Tumbarumba, where he was put to work initially as a forestry worker. He was of course quite unfit, and unused to hard physical work. He began to experience severe back pain, especially in the area between the shoulder blades.

15. He was then transferred, at first to the workshop, and then into the kitchen, where he began work as a cook. After several months he became the head cook, and he worked in that position until his release in August 1986. His evidence was that he had no physical difficulty in doing the work, but that he ached doing it.

16. On his release he returned to Canberra, where he first consulted Dr Nimmo (or Garrett, as she then was) as his general practitioner, in October 1986.

17. Although he consulted her about various ailments fairly regularly, it was not until 1 July 1988 that Dr Nimmo noted any complaint of back pain.

18. Over that period he was unemployed. He did not use heroin again, but he did have problems with alcoholism, and he was overweight. His evidence was that he did have problems with his back, but they were not significant in the context of his life at that time, he having recently been released from prison.

19. Dr Nimmo reports that over the preceding few months he had undertaken a rigorous fitness regime, to get his weight down. The pain was in the mid thoracic area, and was not particularly severe. There was no obvious precipitating cause, and she attributed it to his exercise or bad posture. She did not advise any particular treatment other than simple analgesics, local heat and attention to posture.

20. He was seen again on 25 August 1988, and, as the pain in the back was no better, he was sent for x-rays and physiotherapy. The x-rays were normal. On 30 August he reported to her that the physiotherapy was helping.

21. Dr Nimmo's clinical notes show that she saw him again about the right thoracic region of his back on 26 October 1988. His weight, which had been 95 kilograms on 15 June 1988, and 83 kilograms on 3 August, was now 74 kilograms.

22. In early 1989 he had some genito urinary problems, and no complaint was recorded about his back. Dr Nimmo reported that she did not see him again about that pain until 1 December 1989.

23. In August 1989 he had begun work as a bricklayers labourer. He was able to do the work, but by the end of the day would feel pain in his back.

24. On 30 January 1990, while consulting Dr Nimmo about another problem, he complained to her again of back pain, and, it seems, for the first time recalled the motor car accident in 1984 and raised the question whether it might have caused the back pain.

25. On 7 February 1990 he saw her again, complaining about the pain, which was present most of the time. She advised physiotherapy and anti inflammatories, which he declined, because the previous physiotherapy had not given lasting relief, and the pain was not bad enough for him to risk the side effects from the tablets. He had received legal advice, and in March 1990 she had further x-rays done and referred him to Dr Newcombe, neurosurgeon.

26. Dr Nimmo's opinion in April 1990 was that he was suffering from musculo ligamentous strain which could well have been caused by the motor vehicle accident. Although he said he was capable of doing labouring work, she advised him against it. She expected that if he did not aggravate it by heavy work his condition would not be likely to worsen.

27. Dr Newcombe saw him on 24 April 1990. He found tenderness over the interspinous ligament at T9/10, but no other signs. His opinion was as follows:
"... he had persistent thoracic spinal pain as a consequence of

the accident of 23/05/84. This opinion is based on the history
given and the probability that that accident led to the low back
pain from that time thereon, though it became more prominent
after heroin withdrawal. His present pain would appear to be due
to musculo-ligamentous strain or interspinous ligament
disruption. His present condition would appear stable. Specific
therapy does not seem likely to help and, in particular, surgery
is not advised."

28. In evidence he explained that the reference to "low back pain" should have read "mid back pain".

29. Dr Burke, consultant physician of Sydney, examined him for the defendant on 26 August 1991. Dr Burke's opinion was as follows:

"Mr Monck sustained a jolting injury when riding as a passenger in
a taxi which was involved in a collision on 23.5.84. At the time
of the accident Mr Monck was addicted to Heroin and this masked
the sensation of pain from the back injury. I note that during
his withdrawal from Heroin following his detention in gaol he was
increasingly aware of back pain. After returning home he had
physiotherapy which provided temporary benefit for his backache.
His persistent pain in the back is most likely related to
musculo-ligamentous strain following the injury and local
spondylotic degeneration at this level would account for the
continuation of the pain at this stage, seven years following the
accident. There are no abnormal neurological findings and
surgical treatment is thought inadvisable. It is likely that
this vertical pain resulting from ligamentous strain will
gradually and completely subside, but the future duration is
uncertain. He may obtain benefit from a more prolonged course of
rehabilitation directed to the dorsal spine."

30. Dr Cairns, orthopaedic surgeon, also examined him for the defendant on 7 April 1993. He was still unemployed, and had not worked for 2 years or more. Dr Cairns found localised tenderness to pressure at T9/10 level over the spine, ligaments and muscles. There was a full range of movement. Dr Cairns commented that if his subjective complaints were accepted at face value, his ongoing disability was such as to preclude his resumption of heavy manual work.

31. He was unable to speculate on whether the symptoms were related to the motor car accident.

32. Dr Nimmo re-examined him on 29 June 1993. His condition was unchanged. She believed that the continuing pain was due to the accident.

33. Dr Nimmo gave evidence and was cross examined. She conceded the obvious, namely, that heavy forestry work could have produced the ligamentous strain, and that work as a bricklayer's labourer could also have caused or exacerbated it.

34. Dr Newcombe also gave evidence and was cross examined. He also conceded the obvious about the forestry and labouring work.

35. Both doctors agreed that if there had been an injury during the forestry work there would probably have been an onset of pain. The plaintiff in his cross examination denied any such incident, although it was during the period that he was doing that work that he first began to notice the back pain specifically.

36. Extensive inquiries were made by the plaintiff's solicitors, but she was unable to locate any relevant records relating to treatment of the plaintiff while he was at Mannus Prison Farm.

37. On the balance of probabilities I am satisfied that the plaintiff suffered musculo ligamentous strain in the region of the thoracic spine in the accident on 23 May 1984. The fact was masked by his heroin addiction, which explains the late diagnosis.

38. The pain is not severe, but makes it advisable for him to avoid heavy labouring work. It is not likely to improve or deteriorate significantly.

39. For his pain and suffering I award $20,000, of which $5,000 relates to the future. Interest on the past component is $2,875.

40. The out of pocket expenses are agreed at $200.00.

41. The claim for past economic loss naturally does not commence until after he gave up the job as a bricklayer's labourer, in accordance with his doctor's advice. That was in June 1990, and he said he has not looked for any work since then.

42. But I am not satisfied that his injury has been the reason for that. He said quite frankly that he has been living with his girl friend and she has been supporting him. He is capable of many lighter occupations than bricklayer's labourer, but there is no evidence that he has sought employment in any of them, or that his physical condition has been a factor in his not obtaining any.

43. For the future it is possible that he may obtain work. He gave no specific evidence about it.

44. It is obvious that there has been a diminution in his income earning capacity, but the defendant must compensate him for that only to the extent that it causes financial loss to him, in the past or in the future.

45. I do not think that it has caused any loss in the past. For the future I think that only a moderate award in the nature of a buffer would do justice between the parties. He is intelligent and articulate but has no clerical training or skills. He is 36 years of age. On that basis I would award $50,000 for loss of income earning capacity.

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

General damages $20,000
Interest 2,875
Out of pocket expenses 200
Loss of income earning capacity 50,000
TOTAL $73,075

47. I direct the entry of judgment for the plaintiff for $73,075.