Michael John Caine v Marc Conrad Caine [1993] ACTSC 74 (6 August 1993)

SUPREME COURT OF THE ACT

MICHAEL JOHN CAINE v. MARC CONRAD CAINE
No. SC1994 of 1986
Number of pages - 3
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Invalid pensioner - Lumbar spinal fractures - Temporary exacerbation - No loss of income earning capacity - No issue of principle.

HEARING

CANBERRA, 3 May 1993
6:8:1993

Counsel for the Plaintiff: B. Salmon QC and W.F. Gillies

Instructing Solicitors: Maliganis Edwards and Co

Counsel for the Defendant: M.J. Cranitch and M. Scott

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

I direct the entry of judgment for the Plaintiff for $46,500.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 21 August 1985. He was travelling as a passenger in a vehicle which collided with a guide rail.

2. Liability is not in issue. Nor is there any contention about the extent of the physical injuries that the plaintiff received in the accident. The only matter about which the parties are unable to agree is whether the accident caused any diminution in the plaintiff's income earning capacity.

3. The plaintiff was born in 1954. He finished school at the normal age, but did not matriculate. From 1972 till about 1983 he worked in various unskilled occupations. Over the years he was involved in a number of accidents. As early as 1976 he was complaining of low back pain. In 1983 an x-ray of his whole spine revealed widespread changes, which were largely the result of Scheuermanns Disease. In 1984 he applied for an invalid pension. In addition to problems with his back he was dependent on alcohol, and there was evidence of acute liver damage. He was receiving sickness benefits at the time of the accident.

4. He was affected by alcohol at the time of the accident. He was wearing a seat belt. He was taken home, but soon became aware of pain in his back. He was taken by ambulance to Royal Canberra Hospital, where x-rays revealed a crush fracture of L2 and L1. He was given analgesics.

5. He stayed in bed for about three months, being cared for by his wife and daughter. Gradually he improved to the stage where he was able to start up again a brick cleaning business, although he did little physical work in connection with it.

6. His father died in September 1986, and his problems with alcohol recurred. The brick cleaning business failed in June 1987. In September 1987 Dr Gavaghan warned him that his dependence on alcohol could cause irreversible liver damage, though at that stage the changes shown on biopsy were still reversible. He attended AA, and by July 1991 was able to report to Dr Andrews that he had been off alcohol for two years.

7. The records of his treatment over the years have been reviewed by Dr Andrews, Dr Corry and Dr Keiller.

8. Dr Andrews thought that the subject accident caused only a temporary aggravation of his back condition, and that the ongoing problems were consistent with his pre accident history. The level of disability was not much different from what had been recorded since 1982.

9. I think that Dr Corry's description is more accurate, though for this case the practical consequences are much the same. He reported on 24 September 1991:

"Conclusion: It would seem clear from Dr Caine's reports that Mr
Michael Caine suffered from significant disabling low back pain,
prior to the motor vehicle accident in 1985. The cause of this
pain was thought to be a consequence of Scheuermanns Disease.
There had been a number of quite significant traumas in motor bike
accidents over the years, and it is possible that the wedging at
T9/10 may have had a traumatic basis.
There is no doubt that in the motor vehicle accident he sustained
compression fractures of L1 and L2. There is no residual
deformity as a consequence of the L1 fracture, and only slight
anterior wedging at the L2 fracture. This type of fracture
produces pain lasting several weeks, and then progressive recovery
and no long term disability would normally be anticipated.
It would seem however that he has not coped with the pain symptoms
following this injury terribly well, largely confining himself to
bed and apparently drinking fairly large amounts of alcohol. This
would have lead to significant deconditioning which would have
compromised his ability to carry out manual work, at least for a
period of time.
His present level of disability as described, does not appear to
be greatly different from that which is recorded prior to the
motor vehicle accident."

10. Dr Keiller first saw him in November 1989. His condition was not then sufficiently stable for a confident assessment. Dr Keiller suggested referral for psychological support and encouragement. When he reviewed the plaintiff in June 1991 his emotional state was much improved. After he reviewed a number of other reports, his final conclusion was:

"OPINION
I do not doubt that Mr Caine has significant neck and back pain,
from time to time, and lower grade symptoms in the interim.
However, there are no significant objective, abnormal physical
signs to support a claim of disability to the degree that he does.
I reviewed the notes you provided and these, where they are
decipherable, show that he had both neck and low back problems
prior to the accident.
These were probably related to Scheuermann's Disease and possibly
previous episodes of forgotten trauma.
There is no doubt, however, that he sustained a stable crush
fracture to the area of L1 and, less so, L2 vertebrae in the
accident as previously described. Such injuries usually have a
good prognosis unless there has been gross wedging and where there
is subsequent further deformity.
However, as mentioned in my previous report, there is always some
accompanying soft tissue damage to supporting muscles and
ligaments, and possibly to neighbouring discs and facet joints
also.
I believe any aggravation of the neck, or thoracic spine, has now
ceased and any ongoing complaints at those areas are due to the
previous condition.
Local pain and discomfort in the region of the upper lumbar spine
however, is still attributable to the accident.
Nevertheless, I do not believe the symptoms are so severe that he
is disabled from that cause.
He would be fit for lighter forms of activity, although he would
not be fit to return to his previous work as a cleaner.
Now he has overcome his alcohol problem and depression, he should
be able to retrain for some other form of employment and, ideally,
this should be a semi-sedentary one in an office or similar
environment, but he would also be fit for light courier type work.
I see no indication for further investigation or treatment, nor
that he requires other specialist referrals.
He would be fit to resume employment from a physical point of
view, within the parameters outlined above, at once, if such
employment became available. Within those restrictions I would
see no long term danger to his employment prospects, social
amenities or expectation of life.
In the medico-legal sense he is stable, with no requirement for
re-assessment."

11. None of the doctors were called to expand orally on their written reports.

12. Although Dr Keiller states that he would not be fit to return to his previous work, he does not attribute that unfitness to this accident. In fact his comments seem to me to exclude the accident from being the cause of any continuing disability for work.

13. On the evidence therefore I am not satisfied that the plaintiff has demonstrated that the accident caused any measurable diminution in his income earning capacity.

14. The parties agreed that a proper figure to compensate the plaintiff for all the elements of his claim other than the claim for loss of income earning capacity is $46,500.

15. I direct the entry of judgment for the plaintiff for $46,500.