Vlademaras Veichelis v Wayne Arthur Farnhill [1993] ACTSC 73 (6 August 1993)

SUPREME COURT OF THE ACT

VLADEMARAS VEICHELIS v. WAYNE ARTHUR FARNHILL
No. SC839 of 1991
Number of pages - 4
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Neck injury - Extensive pre existing degeneration - Reaction to discogram - Fusion operation at C6/7 - Loss of income earning capacity after age 65 - No issue of principle.

HEARING

CANBERRA, 17 May 1993
6:8:1993

Counsel for the Plaintiff: G. A. Stretton $P Instructing Solicitors: Hill and Rummery

Counsel for the Defendant: F. G. Parker

Instructing Solicitors: Sly and Weigall

ORDER

I direct the entry of judgment for the plaintiff for $135,129.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 28 October 1990. Liability is not in issue.

2. The plaintiff was born in 1927 in Lithuania. He came to Australia as a displaced person after the war, in 1947. In 1949, while working at the Hotel Windsor in Melbourne, he obtained a job there as an apprentice chef. He then went through a series of jobs as a waiter or chef. In 1986 he obtained employment as a chef with the Australian Defence Force Academy, where he was still working at the time of the accident. He was by then 63 years of age.

3. On Sunday 28 October 1990 he was driving his car on Canberra Avenue, and stopped to give way to vehicles on his right at the Hume Circle roundabout. He was wearing a seat belt. The defendant's vehicle collided heavily with the rear of his car, pushing it some distance across the road. The boot was severely damaged. He was thrown violently about. He hit his head on some part of the inside of the car, but he did not lose consciousness. He felt immediate sharp pain in his neck.

4. He went home. He was unable to sleep that night. The next morning he consulted Dr Wardman, a locum for Dr Greenman, his general practitioner. He was complaining of headache, nausea, soreness at the back of the neck, and paraesthesia over the C6 dermatome of the left arm. X-rays taken at Woden Valley Hospital showed old degeneration, but no evidence of bony fracture. He was prescribed analgesics and a soft collar.

5. On 31 October 1990 he saw Dr Greenman, who found continuing paraesthesia of the left arm and hand. He referred him to Mr Reeder, physiotherapist, whom he saw first on 2 November 1990.

6. Mr Reeder found him in obvious pain, with neck movements restricted to half normal range. He applied heat and massage. By 6 November he had a greater range of movement, but the left arm and hand pain persisted. Mr Reeder continued the heat and massage treatment twice weekly.

7. On 8 November Dr Greenman referred him to Dr Chandran, who saw him first on 6 December 1990. He found mild restriction of movement, and no neurological deficits. The neck pain was improving but the arm pain persisted.

8. Dr Andrews carried out nerve conduction studies on 5 January 1991. He concluded that there was a left C6 nerve root entrapment. There was also an unrelated left ulnar nerve problem.

9. Dr Chandran had an MRI scan performed in February 1991. It showed extensive degeneration from C4 to C7, which confirmed x-ray findings. There was evidence of mild disc compression. He advised a cervical discogram, which he was not anxious to undergo, but to which he eventually submitted on 9 August 1991 at Royal Canberra Hospital.

10. His fears were realised. The procedure itself, at four levels, was very painful, and performed without anaesthetic, but he also suffered a reaction to the operation, with pain and muscle spasm so severe that on 13 August 1991 Dr Chandran admitted him to Royal Canberra Hospital for investigation. The discogram had identified painful disruption at C5/6 and C6/7.

11. After a fortnight in hospital his condition improved to some extent. On 24 October 1991 Dr Chandran found impairment of sensation in the left hand, but normal power and reflexes. The neck was still stiff. He postponed a decision about further treatment.

12. During December 1991 the pain in his left arm became severe. In January 1992 Dr Chandran found diminished sensation of C6 and C7 dermatomes. He advised surgery. The plaintiff felt he could not cope with the pain he was experiencing, and decided to undergo it.

13. On 23 March 1992 under general anaesthetic, Dr Chandran performed an anterior fusion at C6/7, with disc excision and decompression. Bone for the graft was taken from the hip. He suffered pain while recovering from the operation. He spent a week in hospital.

14. When he returned home his sister came to live with him and care for him. After about three weeks he began to be able to care for himself.

15. In May 1992 he reported to Dr Chandran that he had achieved 90 percent improvement of his symptoms. On examination Dr Chandran found only slight restriction of neck movement. On review in July 1992 x-rays showed good union at the operative site. The only complaints were of occasional pain in the right shoulder and mild restriction of neck movements. There was no neck tenderness and no upper limb neurological deficits. Dr Chandran thought he was then fit to return to some form of light work, but not for activities that involved heavy lifting or repeated bending.

16. The plaintiff turned 65 on 11 August 1992. His employment as a chef at ADFA would have come to an end on that date even had the accident not happened.

17. However he had intended to find work after leaving the Academy, at least until he had finished paying off his home mortgage, which was due to be paid off by the end of 1995. He enjoyed his work, and might even have continued for another year after that.

18. Mr Smith, who had been his superior at the Academy, recently retired from the service, and is now in business as a catering consultant. He had been favourably impressed by the plaintiff's abilities and attitudes, and had employed him from time to time in a business that he carried on as a sideline while still in the Navy.

19. He has a contract for the management of the Lithuanian Club, and asked the plaintiff to work there as a chef. He attended on one occasion, but tired markedly towards the end of the shift, and suffered stiffness and pain in the neck the next day. He felt that he could not handle the heavy work that is required of a busy chef, and reluctantly declined Mr Smith's offer.

20. On 15 September 1992 Dr Scott-Findlay examined him on behalf of the defendant. He later saw x-rays taken in August 1992 which showed marked osteoarthritic and spondylitic change throughout the entire cervical spine. He thought that those changes had been there a long time, and was reluctant to accept that the plaintiff's symptoms were the result of the accident. He described the state of the spine as demonstrated by the earlier x-rays as being "one of a spine waiting for an accident to happen". In any event he thought the plaintiff was fit for work without restriction, and that there was no assessable permanent injury.

21. Dr Scott-Findlay gave evidence and was cross examined by telephone. He seemed to think that the radiographic evidence was such that the degree of osteoarthritis must have given rise to clinical evidence before the accident.

22. The only evidence, and it is uncontested, is that the plaintiff was performing well at his job as a chef, and had made no complaints of cervical discomfort before the accident. There was a severe flexion and extension insult to the neck. There was immediate pain, which was constant until the operation. The fusion relieved the symptoms markedly.

23. I have no doubt that the accident caused the pain and necessitated the operation. I also do not share Dr Scott-Findlay's view that the occupation of a chef is a relatively sedentary one. I am also satisfied that, although the plaintiff is relatively pain free at present, he would rapidly suffer great discomfort if he tried to work even part time in such an occupation. He is motivated to work. He tried to work. He was unable to continue because of his pain.

24. Nevertheless, the plaintiff did have a marked degenerative condition in the cervical spine. There was an increased risk that some other trauma might have disabled him. To that extent there should be an increased discounting of what is a moderate claim for loss of earning capacity after age 65.

25. In summary therefore, the plaintiff suffered a moderately severe whiplash injury which damaged the cervical spine, which was already subject to marked degenerative changes which till then was not symptomatic. Fusion was necessary to alleviate the pain in his arm after about a year and a half. He suffered a severe reaction to the discogram. He was prevented from carrying on at work as he wished, and can no longer enjoy leisure activities in which he took pleasure.

26. For his pain and suffering I award $30,000, of which less than $5,000 would relate to the future.

27. Interest on the past component on the conventional basis amounts to $1,400 in round figures.

28. The out of pocket expenses are agreed at $25,195.73. The Fox v Wood figure is $8,533.30.

29. I am satisfied that in all probability he would have stayed at work till his 65th birthday. On that basis the sum of $35,000 is agreed as being his loss of income to that time.

30. On the basis of the evidence given by Mr Smith the plaintiff might well have earned between $12,000 and $15,000 gross during the past year. That is, very roughly, between $10,000 and $13,000 net. The factors were discussed during argument, and I do not think I need to detail them. The net results of the figures contended for by counsel are not all that far apart, when what one is attempting is an exercise of judgment in any event.

31. The plaintiff might well have continued to work until about the end of 1995. It is possible he might have continued on for no more than one year thereafter. The state of his spine was such that he might well have been disabled even without this accident. The normal contingencies must be taken into account, but there is only a period of 2 or 3 years for which they are relevant. There is also an element of interest to be allowed for over the past year.

32. As a matter of judgment I would award $35,000 for loss of income earning capacity after the age of 65.

33. The total award is therefore made up as follows:
Pain and suffering $ 30,000

Interest 1,400
Out of pocket expenses 25,196
Fox v Wood 8,533
Loss of income to 65 35,000
Loss of income after 65 35,000
TOTAL $135,129

34. I direct the entry of judgment for the plaintiff for $135,129.