Mark Slavica v Vernon Skewes [1993] ACTSC 116 (23 December 1993)

SUPREME COURT OF THE ACT

MARK SLAVICA v. VERNON SKEWES
No. SC496 of 1987
Number of pages - 9
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor car accident - Pre-existing spinal degeneration - No issue of principle.

HEARING

CANBERRA, 10 June and 9 August 1993
23:12:1993

Counsel for the Plaintiff: M. G. Inglis

Instructing Solicitors: Scott Sheils Glover

Counsel for the Defendant: F. G. Parker

Instructing Solicitors: Gallens Crowley and Chamberlain

ORDER

I direct the entry of judgment for the plaintiff for $38,860.

DECISION

MASTER A. HOGAN This is the assessment of damages for personal injuries received by the plaintiff in a motor vehicle accident on 20 April 1985.

2. The plaintiff was born in Croatia on 24 March 1941. He attended school until about the age of 12, and worked on a farm and in a factory until he migrated to Australia in 1960.

3. Here he worked for a while as a labourer and then as a painter, and eventually be carried on business in partnership with a Mr Jurica as painting contractors.

4. In 1964 he was involved in an accident when he fell down a lift well and injured his wrist, head and collar bone. He was off work for some time, and then returned eventually to work as a painter.

5. In 1972 he was living in Canberra, and consulted Dr Henderson as his general practitioner. The transcript is ambivalent, but my understanding is all that Dr Henderson's notes and records were tendered and received into evidence.

6. An entry in those records shows that on 15 May 1972 he consulted Dr Henderson complaining of low back pain. There was a tentative diagnosis of lumbar spondylosis. Indocid and Norflex were prescribed. The plaintiff continued to work as a painter. There was no further complaint of back pain until 10 November 1975. On that occasion he complained to Dr Henderson of low back pain, extending down the left leg. He was referred for x-rays, which demonstrated some pathology at L5/S1.

7. In April 1976 Dr Henderson referred the plaintiff to Dr Vance, whose report records that he had been complaining of pain down his left leg on and off over the previous five years. There was tenderness at L4/5 and L5/S1. X-rays showed lumbo sacral degeneration, with some shift of the vertebral bodies.

8. Dr Vance advised traction in hospital, but the plaintiff had work that he had to complete. On 20 May 1976 Dr Henderson gave him a certificate that he had disc trouble.

9. There is then no further reference to back problems in Dr Henderson's notes before the date of the accident the subject of this action. The plaintiff's evidence was that over that time his back did not cause him any problems.

10. But he was not, over that time, working constantly as a painter. His evidence was that from 1967 or 1968 he had earned most of his money from betting on horses. He did some painting work from time to time. I think it is probable that the condition of his lower back was at least one of the reasons why he was not working constantly at his trade.

11. On 20 April 1985 he was driving a motor car in David Street in O'Connor when another car failed to observe a give way sign and collided with the front right hand side of his car. His vehicle was spun completely round. He was wearing a seat belt. He felt bruised all over.

12. His wife came and drove him to Royal Canberra Hospital. He complained there of a painful right ankle, right knee, right chest and right shoulder.

13. Examination revealed swelling and bruising over the right ankle and knee, tenderness over the right ribs, and grazing to the right shoulder.

14. X-rays were taken only of the chest and rib cage, and right ankle. No fracture was seen. He was told to rest and apply ice to the ankle, and given Aspalgin for the pain.

15. It is apparent that he must have been severely shaken up in the accident, but it is significant that there was no complaint of neck or back pain or stiffness.

16. He was allowed home from the hospital. Over the next few days he felt sick and in pain, especially in the right chest.

17. On 2 May 1985 he consulted Dr Henderson, who found obvious pain and tenderness over the 7th rib, evidence of sprain of the medial ligament of the right knee, swelling and bruising of the right ankle, and no abnormality in the right shoulder. The plaintiff was also complaining of headaches and poor vision, so Dr Henderson examined his central nervous system very carefully, but found no abnormality. He referred the plaintiff for x-rays of the chest and ribs, neck, thoracic and lumbar vertebrae and right ankle.

18. The chest x-rays confirmed a fracture of the right rib. The ankle had no bony injury. The spinal x-rays showed no evidence of bony injury, but some degree of degenerative change in connection with the accident.

19. Dr Henderson prescribed only rest.

20. Again, there is no record of any complaint of neck or back pain or stiffness. Dr Henderson was not called to give evidence, so I do not know whether the spinal x-rays were ordered because of a complaint about them, or from caution because of the pre-existing condition. The x-ray report records quite marked degenerative change at C4/5 and C6/7, with foraminal narrowing, and advanced degenerative changes at the lumbo sacral disc level with a grade 1 reversed spondylolisthesis at this level.

21. On 6 May 1985 he received a prescription for more pain killers.

22. On 18 July 1985 he was complaining of pain in the chest and right shoulder. A further x-ray showed that the rib fracture was healing. He was also complaining about problems with his vision and was referred to an ophthalmologist, who found only evidence of refractive error unconnected with the accident.

23. On 19 October 1985 he was still complaining of chest and shoulder pain, and was still worried about his eyesight. Another specialist came to the same conclusion, namely that there was nothing wrong with his eyesight that could be attributed to his accident.

24. Dr Henderson referred him for physiotherapy to his shoulder and knee.

25. Dr Henderson did not see him again before reporting to his solicitors on 20 January 1986. His summary then was:
"Mr Slavica has sustained a fairly severe injury to his (r) chest

(fracture) and soft tissue injuries to (R) shoulder, (R) knee and
(R) ankle and has obviously suffered considerable discomfort as a
result.
He states he has been unable to work since then. (I understand
he is in the building trade.)
It is not easy to prognosticate on when he will be completely
well, but as his rib fracture is the most severe injury incurred,
it would take approximately six to twelve weeks for satisfactory
healing to occur. He could, therefore, be considered fit to
resume his work approximately 3 months from the time of his
accident.
No permanent disability is likely to result from his accident."

26. Again, there is no mention of neck or back pain.

27. Dr Henderson's records do not cover 1986, but there is in evidence a report from Dr Colin Andrews dated 18 September 1986, to whom Dr Henderson had referred the plaintiff, complaining of headache and blurring of vision, along with various other aches and pains.

28. For the first time, nearly a year and a half after the accident, is there any complaint of neck pain. He told Dr Andrews he had persistent posterior neck pain. Clinically there was little abnormal to find. The neck symptoms and signs were only very mild, and Dr Andrews was primarily concerned with finding the cause of the headaches.

29. The plaintiff in his evidence in chief described his difficulties over the period to when he saw Dr Andrews as relating to the whole of his right side, right shoulder, ribs and headaches. Dr Andrews prescribed Tryptanol and Visken.

30. On 18 November 1986 Dr Andrews reported continuing headaches and neck pain. He ordered a CT scan of the cervical spine and changed the medication.

31. The CT scan of 27 November 1986 showed some pathology of the cervical spine, but not enough to explain the complaints of pain. Dr Andrews therefore had a cervical myelogram performed on 27 January 1987. It was fairly normal, and was followed up by a CT scan, which did not reveal any significant pathology other than pre-existing degenerative changes. He suggested Panadeine, which the plaintiff said in evidence gave him good relief.

32. In his report to the plaintiff's solicitors on 13 March 1987 Dr Andrews wrote that there did not appear to be any significant damage in the cervical spine, and that he could not find any strong linkage between the injuries sustained in the accident of April 1985 and the continuing headaches.

33. In July and September 1987 he began complaining to Dr Henderson of pain in his right lower back. In evidence he said that at about this time he could not concentrate on his betting activities, was losing money, and returned to painting. He was having difficulty with his neck when painting ceilings.

34. In May 1988 he complained of pain in the whole of the right side of his body. Dr Henderson referred him to Dr McNicol, orthopaedic surgeon. Dr McNicol ordered an MRI scan, and in April 1989 he reported to the plaintiff's solicitor that he advised cervical discography for further investigation. He commented:

"I cannot state conclusively if his injuries were related to the
accident or if they were pre-existing injuries aggravated by the
accident."

35. In June 1989 discography demonstrated pathology at the C6/7 and C4/5 discs. Dr McNicol raised the possibility of discectomy and fusion if the symptoms became sufficiently severe. He commented that his work as a painter was not a particularly satisfactory occupation for someone who has neck and back pain.

36. By this time, according to his evidence, the plaintiff was experiencing pain, weakness and pins and needles in his right leg. Dr Henderson noted his complaint of right sciatica, and referred him back to Dr McNicol.

37. On 6 November 1989 Dr McNicol reported to Dr Henderson that the plaintiff was complaining of low back pain "for the last two and a half to three years". That would put the onset of the low back pain to at least a year and a half after the accident.

38. There was no doubt however, about the genuineness of his complaints. Dr McNicol was satisfied that there was a disc collapsed at L5/S1 with S1 nerve root irritation. He recommended repeat x-rays and a MRI scan, which showed pathology at the L5/S1 level, but no definitive evidence of compression of the nerve roots.

39. In his report to the plaintiff's solicitors on 18 April 1980 Dr McNicol stated that, due to the multi level disc disease, he felt the plaintiff should be treated conservatively. He had cervical disc disease at two levels and lumbar disc disease at three levels. He believed the course of the cervical problem was related to the motor vehicle accident. He could not comment on whether the lumbar pain was also associated with it. He thought him incapacitated for work to the extent of some fifty percent.

40. The plaintiff's condition has not changed much since then. He continues to do small painting jobs from time to time, but finds that his headaches stop him from being able to concentrate sufficiently to make any significant profit from betting.

41. Dr Henderson's records end in June 1989. It seems that he consulted Dr Shihoff, general practitioner, who referred him to Dr Cassar, who saw him first in January 1991.

42. The history given by the plaintiff to Dr Cassar was that there was no neck or lumbar spinal condition before the car accident. Dr Cassar inspected his 1985 x-rays, which showed the degenerative condition of the cervical spine at C3/4, 4/5, 5/6 and 6/7. He thought it consistent that there might well have been no symptoms of that underlying disease:

"particularly if it is indeed true that prior medical notes of Dr
Henderson and Dr Shihoff do not show any documentation of spinal
complaints prior to the 1985 accident."

43. The fact is, however, that the plaintiff had complained of low back pain in 1972, 1975 and 1976. On the other hand, there was no complaint of cervical pain until the consultation with Dr Andrews, a year and a half after the accident.

44. Dr Cassar is obviously correct in thinking that the nature of the impact and the other injuries were consistent with a substantial aggravation of a pre-existing spinal disorder.

45. But Dr Cassar went further. He thought that the aggravation probably took place and that without the accident the complex of symptoms would never have arisen, and that the plaintiff:

"... would still be able to work in his painting occupation
without any aggravated pain or symptoms."

46. I note that as part of his reasoning he relies on:

"... acute and substantial headache and right neck pain at time
of presentation to Royal Canberra Hospital Casualty Department."

47. The Casualty Department notes are in evidence, and it is clear that no such complaint was recorded. Nor did the plaintiff give evidence that at the time he suffered neck pain or headaches.

48. Apart from a number of radiography reports the only other medical evidence is a report by Dr Roebuck, orthopaedic surgeon, who saw the plaintiff at the request of his solicitors on 12 May 1992. His report stated simply that the plaintiff suffered a muscular ligamentous injury to his neck in the motor vehicle accident. He found no evidence of nerve root pressure. He suggested a CT or MRI scan to exclude cervical disc lesion "if it is important". He was supplied with more information about the radiography, which gave him enough information on which to base his opinion that the plaintiff had a permanent impairment of his back of 23 percent and a permanent impairment of his neck of 18 percent.

49. Dr Roebuck did not really investigate the question whether the plaintiff's disabilities resulted from the accident, and I do not think that his report adds very much to the significant evidentiary material.

50. The plaintiff was examined for the defendant by Dr McKeown, Dr Stubbs and Dr Keiller, but no reports from any of them were tendered in evidence. I assume that they did not provide evidence that the plaintiff's disabilities are not the result of the accident.

51. None of the doctors whose reports were tendered by the plaintiff were required to attend for cross examination.

52. Nevertheless, at the end of the day, on reviewing the whole of the evidence, I am simply not satisfied that the plaintiff's headaches, his cervical disc problems, or his lower back and sciatic pain were caused or exacerbated by this accident.

53. And, contrary to the opinion expressed by Dr Cassar, I think it is quite probable that, had the accident not happened, he would at some time have been partly disabled by the natural progression of his degenerative spine or by some other trauma.

54. The other finding I should make on the evidence is that I am not satisfied that the plaintiff was anywhere near as successful in his betting activities as he claimed, nor am I satisfied that he was prevented in any way from continuing with them by any of the results of the subject accident. The plaintiff's evidence on this topic I found completely unconvincing, inherently improbable and unsupported by the slightest form of any corroboration.

55. In the result, I find that in the accident the plaintiff was severely shaken up, and suffered a fractured rib, abrasion to the right shoulder, and painful bruises to the right ankle and right knee. The fractured rib would have taken the longest to heal. I accept Dr Henderson's estimate that he could have been fit to resume work approximately 3 months after the accident.

56. He was still suffering pain in the chest and right shoulder in October 1985, but did not find it necessary to see Dr Henderson again until after January 1986, and then it was for referral to Dr Andrews, principally because of headaches and blurred vision, which I do not think were the results of the accident at all.

57. For his pain and suffering I award $25,000. All of that is in the past, and I think was suffered within a short period. I allow interest on the whole amount at 4 percent, which totals $8,680.

58. It is a generous award to him to allow six months loss of income earning capacity as a painter. He earned $5,660 nett in 1983-1984, and $3,632 nett from July 1984 to the date of the accident. I award $2,500 for loss of income. Interest on that element amounts to $2,000. There is no future loss of capacity attributable to the accident.

59. The bulk of the out of pocket expenses relate to treatment by Dr Cassar. The only items that clearly relate to the subject accident are those for Dr Henderson and perhaps the radiography. I allow $680.00 for the out of pocket expenses.

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

Pain and suffering $25,000
Interest 8,680
Loss of income 2,500
Interest 2,000
Out of pocket expenses 680
TOTAL $38,860

61. I direct the entry of judgment for the plaintiff for $38,860.