Mirko Laic v Kenneth Maxwell Randell [1993] ACTSC 81 (30 August 1993)

SUPREME COURT OF THE ACT

MIRKO LAIC v. KENNETH MAXWELL RANDELL
No. SC384 of 1987
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury - Cervical and lumbo sacral - Work capacity - No issue of principle.

Malec v Hutton (1990) 64 ALJR 316

HEARING

CANBERRA, 2 and 3 June 19993
30:8:1993

Counsel for the Plaintiff: G. Lunney

Instructing Solicitors: Macphillamy Cummins and Gibson

Counsel for the Defendant: J. D. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff for $364,971.

2. The defendant to pay the plaintiff's costs.

DECISION

MASTER A. HOGAN This is an action for personal injuries sustained by the plaintiff in a motor vehicle accident on 13 November 1985. Liability is not in issue.

2. The plaintiff was born in what was then Yugoslavia in 1953, and left school there at the age of about 17.

3. He worked in a leather goods factory for about 10 years. He married, and in 1981 came to Australia with his wife and two children.

4. After a number of relatively unskilled jobs, he began work at Woden Valley Hospital as a kitchen hand. The job was relatively strenuous, but he was strong and healthy, and had no difficulty with it in general.

5. On 25 July 1985, while working in the kitchen, he was bending over, and as he straightened up his lower back struck a protruding handle. He was not able to continue work that day. A doctor at Casualty prescribed Indocid. On 29 July he consulted Dr Niewiadomski. X-rays did not reveal any abnormality. He prescribed physiotherapy. His notes are difficult to decipher, but the plaintiff seems to have returned to work before 12 September 1985. He made no further complaint about that injury.

6. On 13 November 1985 he was driving his car in Jerrabombera Avenue, with his wife and children as passengers. A vehicle driven by the defendant overtook him, and collided with his car as it did so, forcing him off the road. His car rolled over a number of times. It came to rest on the driver's side. He escaped from the car through the broken windscreen. One of the children had been thrown out as the car rolled, and he spent some anxious minutes before he was found.

7. He was taken with his family by ambulance to Woden Valley Hospital, where he was kept for observation, and then allowed home. The clinical notes are not complete, but a laceration to the head and a painful left leg were noted. He had not suffered any loss of consciousness.

8. The next day he consulted Dr Tan, general practitioner. He recorded complaints of headaches, pain in the upper and lower back, left buttock and left thigh. On examination he observed the following injuries:

1. Bruise on right forehead.
2. Abrasions to right parietal scalp.
3. Pain in back of the neck on the left side, with slight
restriction of movement.
4. Pain in the left thoracic back.
5. Pain in the lumbo sacral area, on the left side, with slight
restriction of trunk movements. There was no neurological
deficit.
6. Pain and abrasions to the left thigh.

9. He prescribed anti inflammatory and pain killing medication, and rest.

10. The plaintiff returned to work soon afterwards, but suffered pain particularly in the neck and back. Dr Tan prescribed physiotherapy, which did not afford much relief. He continued to work with difficulty. His supervisor did his best to arrange for him to have light duties. He was consulting Dr Tan from time to time during 1986. He underwent further physiotherapy from Mr Rumore.

11. At the end of 1986 and beginning of 1987 his visits increased in frequency, and Dr Tan referred him to Dr Newcombe, neurosurgeon. He complained to Dr Newcombe of constant neck pain, low back pain and some left sciatica. There was paraesthesia in the left leg and foot.

12. Examination showed limitation of straight leg raising to about 70 degrees.

13. Although the x-rays were normal a CT scan performed on 4 March 1987 showed a central disc bulge at L5/S1. Dr Newcombe concluded that the plaintiff had suffered intervertebral disc injury at that level. He advised conservative treatment.

14. There was a change in his supervision at work, and he found difficulty in performing satisfactorily because of the pain. Dr Tan referred him to Dr Corry, rehabilitation specialist, who saw him first on 29 May 1987. He found tenderness and muscle spasm on clinical examination, though not much else. He advised work on the muscular component of the problem. He also arranged for a rehabilitation counsellor to negotiate with the hospital about his keeping his job until it could be seen what progress was possible.

15. In June 1987, in response to an inquiry from Comcare, Dr Tan reported that his prognosis was uncertain, and that it was possible that the motor vehicle accident of 13 November 1985 could have caused aggravation of the previous back injury of July 1985.

16. It appears from Dr Corry's report to Dr Tan in September 1987 that he was receiving hydrotherapy and exercise treatment at the hospital, but that management had difficulty in keeping him on because of the time off work that he needed for treatment. Consideration was given to a change in his occupation. Dr Corry advised light duties, which the hospital could not provide, and he was put off work.

17. On 17 September 1987 Dr Andrews, neurologist, examined him at the request of his solicitors. He confirmed the diagnosis of low back pain with sciatica, and moderate soft tissue injury to the neck. His symptomatology, though moderate, at that stage was sufficient to keep him off work. He expected some improvement and a return to suitable work.

18. Dr Corry advised that general vocational counselling and assessment be combined with the continuing hydrotherapy. In November 1987 the plaintiff's symptoms appeared to him to be deteriorating.

19. In February 1988 Dr Corry noted that the hospital could not provide more suitable employment. His symptoms were worse. Dr Corry arranged for lumbar radiculogram and referred him back to Dr Newcombe to advise whether surgery might afford relief.

20. The radiculogram showed no abnormality at the nerve roots on the left side, and on 4 May 1988 Dr Newcombe wrote to Dr Corry advising against surgery.

21. On 19 May 1988 Dr Vanderfield, consultant neurosurgeon of Sydney, examined him for the defendant. He gave a history consistent with his evidence and his complaints to his treating doctors. Dr Vanderfield found muscle spasm signs consistent clinically with a low lumbar disc protrusion.

22. In March 1989 Dr Corry reported to Dr Tan that despite some improvement and a number of approaches to the personnel section of the hospital, suitable employment had not been found. In September 1989 he did get work as a leading hand in the food section of the hospital, but the job lasted only about a month.

23. The plaintiff applied to the Commonwealth Employment Service for help. Dr Tan certified to the CES that he was unfit for heavy lifting and would be unable to cope in jobs requiring frequent bending.

24. He continued to keep in touch with his rehabilitation case manager at the hospital, and attended at a course arranged by Rehabilitation and Risk Control Services. At their suggestion he also enrolled in a course in English as a second language at the Erindale College. He had difficulty in attending that course, partly because of pain and partly because of the level at which the course was delivered. He gave up after one term.

25. An MRI scan at Westmead Neurological Centre in April 1991 gave evidence of dehydration/degeneration of the L5/S1 disc, with a mild posterior disc protrusion at that level.

26. His employer referred him back to Dr Corry's Rehabilitation Services, where Mr Frontin, occupational therapist, arranged for further exercises and physiotherapy. The plaintiff co-operated in these activities, but did not feel that he derived much benefit from them.

27. In February 1992 Associate Professor Jones and Dr Vanderfield re-examined him for the defendant. Dr Vanderfield could still find no neurological signs to account for the persistent neck pain. The changes in the lumbo sacral disc appeared to him to be minor, and just as easily attributable to wear and tear as to either the neck injury or the motor car accident. He thought there were no convincing signs of any disability preventing him from returning to suitable kitchen work, with a progressive increase in activity.

28. Associate Professor Jones thought he was employable if he were to have the assistance of a vocational rehabilitation agency and an empathetic employer.

29. That hypothesis was about to be tested.

30. In June 1992 Mr Magill, an ergonomist with Dr Corry's service, reviewed the range of duties performed in the Food Service Area of the Woden Valley Hospital together with the plaintiff, the manager of the area, and Mr Viney, the plaintiff's case manager. He had already assessed the plaintiff's capacity to perform specific tasks with measuring equipment. Some of the work done in the area was identified as being within his capacity. Much of it was obviously beyond him.

31. To facilitate his return to work Mr Magill suggested that he commence on a graduated hours basis, the hours to be periodically reviewed with his treating doctor, with the goal of progressively increasing them. Initially he would be a supernumerary staff member, primarily assisting others within the area.

32. The hospital provided him with work on that basis in August 1992. He started in the salad and sandwich section for four hours a day. Four weeks later he reported to Dr Corry that the staff were supportive, and he was able to take appropriate rest breaks. But he was developing pain in the left foot and heel from prolonged standing. Dr Corry started him on anti inflammatories and referred him for orthotic devices.

33. In October the management arranged for him to attend a course in nutrition, which lasted for about 6 weeks. His level of language skills was such that he had some difficulty in communicating appropriately with patients in the wards. He returned to work in the kitchen. His symptoms of pain were aggravated. On the advice of his general practitioner and his case manager he stopped work early in January 1993.

34. At about that time Gaysley Pywell became his case manager. She gave oral evidence. In early March she received medical advice that the plaintiff was fit for selected very light clerical duties, four hours a day. She negotiated such a job for him in the nutrition area at the hospital, where he recommenced work as a supernumerary on 13 April 1993.

35. On 15 and 16 March 1993 he was assessed for the defendant by the multi disciplinary team at the Vocational Capacity Centre in Sydney. Their overall assessment was that he was incapable of returning to his pre injury job as a kitchen hand. A list of semi sedentary jobs with more appropriate physical demands was set out in the report. He was assessed as having average general reasoning ability, although with poor literacy and numeracy. His oral communication skills were called "adequate for maintaining conversation". Dr Dalton, the rehabilitation specialist, remarked that assessment of his clinical condition was complicated by the presence of a significant degree of chronic pain and illness behaviour. His overall level of fitness was poor. He thought it was impossible to determine at what time the disc pathology became symptomatic.

36. His prognosis seemed to me to be partly founded on a view that the plaintiff had not received comprehensive pain management to date. Unfortunately Dr Dalton did not have access to the detail of the work that had been done by Dr Corry and his associates and Rehabilitation and Risk Control Services, although Mr Hiscox, the psychologist, referred to it in outline. He did agree however that the indications were that he was motivated to work.

37. One of the occupations for which he was assessed as being suitable was that of dietary aide, which seems to be similar to the work to which he returned in April 1993, and in which he is still engaged.

38. The state of the labour market in the Canberra district is such that, for a person with his abilities and incapacities, about the only place at which he would be likely to obtain work is at the hospital where he is now working. He has no security there, being expressly employed as a supernumerary. As Ms Pywell commented, when asked whether the probability of his getting work would improve if his English capacity were to improve, "They would, but the work still has to be available, and in this current employment climate even people who have the physical capacity to work full time, and who have the full command of the English language, are unemployed."

39. Dr Corry was the only medical practitioner to give evidence and be cross examined.

40. He thought that the chance of a relationship between the work injury and the continuing low back pain was fairly small. I accept that it was unlikely, for the reasons given by Dr Corry.

41. On the basis of his experience in rehabilitation he did not rate very highly the plaintiff's chances of finding any of the jobs identified by the Vocational Capacity Centre, at any rate in the Canberra district.

42. He did not suggest any treatment other than to maintain a physical exercise program and to alleviate symptoms. The plaintiff's level of pain is unlikely to change significantly. Given appropriate duties he could, over time, be capable of adjusting to full time work.

43. In summary, I regard the effects of the blow to his back that he received at work as being spent by the time of the accident.

44. In the car accident the plaintiff would obviously have been violently thrown about. As a result he sustained soft tissue injury in the cervical and lumbo sacral region, and probably some damage was caused to the disc at L5/S1. As a result there has been some degeneration of that disc.

45. There has been a continuous course of conservative treatment. He has co-operated in that to a reasonable degree. He is left with continuing pain in the lower back, and to a lesser extent in the cervical region. There is not a sufficient organic explanation for the extent of his continuing pain and disability, but I accept his complaints as genuine. He is motivated to get back to work. I do not think it is reasonable to expect him to be able to fit himself for clerical duties. Even if he tried harder to increase his language skills I do not think he is capable of improving them sufficiently to enable him, with his background, to obtain that sort of work in the foreseeable future.

46. Although it is possible that his capacity for work may improve, there is no evidence that the level of his perceived pain will decrease. It is proper to take into account, in assessing that level, that he has been able to do light work, and will continue to be capable of doing it. His discomfort is chronic but not disabling. It is now nearly eight years since the accident. He is only 40 years of age.

47. I would assess damages for pain and suffering at $42,000, of which $15,000 would relate to the future. Interest on the past component on the conventional basis amounts to $4,200.

48. His treatment expenses have been paid by Comcare, and are repayable. They total $7,321.32 to 17 February 1993. A further $577.00 was paid to Dr Tan by the plaintiff. The total out of pocket expenses are therefore $7,898.

49. A moderate claim for the value of voluntary services provided by his family is justified by the evidence of the plaintiff and his wife, and the basis of calculation in the particulars was not contested. I allow the sum of $1,280 for that item.

50. I would regard all the occasions that he was off work as being related to his injury, even though other factors may have been operating as well, such as the attitudes of other leading hands.

51. The arithmetical basis of the plaintiff's claim for past economic loss was not attacked by counsel for the defendant. His submission was that he had not reasonably exerted himself to improve his English or to find work outside the hospital system.

52. I accept that he did act reasonably in the light of the information that he was given by the CES, contrasted with the actual endeavours made by a number of people to find him work in the hospital of the type that he knew he could do. I am therefore satisfied that it was his injuries that produced the whole of his financial loss up to the date of trial.

53. The combination of net wage loss and the Fox v Wood component to 30 June 1992 as detailed by counsel for the plaintiff was $113,401. From that date to 25 May 1993 they totalled a further $12,386. From that date to the date of this judgment they total a further $3,806, at $555.00 a fortnight. Those figures give a total for past economic loss of $129,593. It is not appropriate to award interest on any part of that amount.

54. The principal area of contention, and that of the greatest difficulty, is the assessment of the value of his loss of future income earning capacity.

55. That he has a physical capacity is not in doubt. The extent to which it will produce income is by no means clear. He is at present employed as a supernumerary. He could lose that job in the very near future. If he did he would find it very difficult to find another. On the other hand the hospital may continue to employ him on that basis indefinitely. The difference between the appropriate awards in each of those two situations is very great. But it is impossible to decide which is the more likely.

56. On the more optimistic view, the net loss is of the order of $204.00 a week. The undiscounted present value of that sum for 25 years at 3 percent is $188,066. For 20 years it is $160,680. He may well not have continued to work as a kitchen hand beyond 60. There are the normal contingencies to be considered. That sum reduced by 15 percent is $136,578, which indicates the bottom end of the range.

57. If he were to be put off work in the near future the net loss would be of the order of $400.00 a week. The undiscounted present value of that sum for 25 years at 3 percent is $368,757. That figure would obviously be beyond the top end of the range. A more appropriate indicator is the figure of 20 years, discounted by 15 percent, which is $267,800.

58. I have re-read the judgments in Malec v Hutton (1990) 64 ALJR 316. I do not think that their effect is to require me to decide whether the chances of his being retrenched from the hospital and of finding another job are greater or less than 50 percent. In this particular case it seems to me very apposite to comment that damages founded on hypothetical evaluations defy precise calculation.

59. As an exercise of discretionary judgment I would award $180,000 for the future loss of income earning capacity.

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

Pain and suffering $ 42,000
Interest 4,200
Out of pocket expenses 7,898
Griffiths v Kerkemeyer 1,280
Past economic loss 129,593
Future economic loss 180,000
TOTAL $364,971

61. I direct the entry of judgment for the plaintiff for $364,971.

62. I order the defendant to pay the plaintiff's costs.