Sergio Harnan Contreras v Theo Politis [1995] ACTSC 13 (8 March 1995)

SUPREME COURT OF THE ACT

SERGIO HARNAN CONTRERAS v. THEO POLITIS
No. SC406 of 1990
Number of pages - 12
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor car accident - Cervical and lumbar spinal injuries - Loss of income earning capacity - No issue of principle.

HEARING

CANBERRA, 14-17 November 1994
8:3:1995

Counsel for the Plaintiff: Mr R Williams QC with Mr F G Parker

Instructing Solicitors: Gary Robb and Associates

Counsel for the Defendant: Mr C Branson QC with Mr C Leahy

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $301,912.00

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 24 January 1990. Liability was admitted during the first day of the hearing.

2. The plaintiff was born in Chile in November 1947. He attended school in Chile to the age of 16, and then worked as a mechanical maintenance worker and storeman.

3. He came to Australia with his wife and children in March 1986. His three sons are now aged 14, 22 and 23.

4. He obtained work as a cleaner almost immediately, and was working as a cleaner at the time of the accident. The details of his employment are one of the matters in contention.

5. His general health appeared good. He enjoyed gardening and folk dancing.

6. Shortly before the accident he had injured his thumb at work, and his son was driving him in his car to see a doctor at Lyneham Shopping Centre. He was seated in the front passenger's seat, wearing a seat belt.

7. His son stopped at a pedestrian crossing to give way to a girl who was crossing. The defendant's vehicle collided with the back of his car. He was pushed forward and then back. He did not strike any part of the car. He felt shocked.

8. The car was driveable, and his son took him to see the doctor at Lyneham, where his hand was attended to. He was then taken home, where he began to feel unwell. He went to see a doctor at the Dickson Medical Centre, where he was given a certificate for two or three days off work, and some Panadeine tablets. He may have been ordered some physiotherapy, though he can not remember receiving it.

9. When the work certificate expired he went back to work. His back, neck and shoulder hurt while he was working. He saw another doctor at the Medical Centre and was given another few days off work.

10. There were no reports in evidence from the first doctors whom he consulted. Xrays were performed on 12 February 1990, which disclosed no abnormality in the cervical spine, but degenerative changes with disc space narrowing at L1/L2 and L4/L5.

11. He first consulted Dr Lai on 16 March 1990, complaining of ache in the lumbar region, radiating to the left thigh, ache in the left side of his neck and left shoulder. Examination revealed stiffness of neck and lumbar spine, flexion of lumbar spine to 30% (sic) and straight leg raising 60% (sic) on both sides.

12. Dr Lai referred him to Dr Andrews, neurologist, who saw him initially on 29 March 1990.

13. Dr Andrews sent him for a CT scan, which was performed on 3 April 1990. It demonstrated early degenerative changes, with spondylosis and osteoarthrosis of the apophyseal joints. There was a disc prolapse at L4/5, which Dr Andrews thought could cause him problems in the future.

14. He received further physiotherapy on 20,23 and 26 April 1990.

15. When he returned to work the second time he continued to suffer pain, and was unable to do his work properly. He was told to go home, and to come back when he was fit. He ceased work on 28 April 1980.

16. Dr Lai referred him to Dr McGrath, consultant in occupational medicine, who saw him first on 17 July 1990. The plaintiff complained of back ache, neck ache, left shoulder and left thigh aches and pains. Dr McGrath instructed him in rehabilitative movements and back care. With progressive visits the plaintiff complained less of neck and shoulder pain and became mostly concerned with his lower back. The pain in the lower back diminished, and the discomfort in his left thigh virtually ceased.

17. A CT scan of the neck done on 21 August 1990 showed minor spondylotic changes, except at C5/6, where there was central and left sided disc protrusion.

18. Dr Lai referred him to Dr Newcombe, neurosurgeon, who saw him on 5 September 1990.

19. His opinion was that the accident resulted in aggravation of cervical and lumbar spondylosis, and produced the lumbar disc protrusion at L4/5. He advised an operation of lumbar discectomy. The plaintiff was not satisfied with the level of certainty of a successful outcome of an operation, and declined to undergo it.

20. His solicitors referred him to Dr White, neurologist, who reported on 16 November 1990. He was complaining of cervical pain which radiated to the outer aspect of the left upper arm. It was associated with subjective numbness and weakness in the arm, all of which symptoms appeared to increase at night. He also complained of low back pain which radiated into the left buttock and the anterior left thigh, associated with numbness. The lower back pain increased with activity and bending.

21. Dr White found his presentation somewhat histrionic but expected that it was cultural. He examined the plaintiff and the radiographic evidence. There were symptoms which were not explained on the basis of the radiological findings. He advised MRI scanning. His prognosis was guarded.

22. On 26 November 1990 Dr McGrath reported to his solicitors as follows,
"1. Sergio has proven disc derangement at the L4/5 level and is

probably the site of origin of his pain disability in the lower back
and leg.
2. As a result of his structural impairment he suffers from pain
disability, exacerbated by manual labour, excessive bending or the
lifting of heavy weights.
3. I believe he is permanently handicapped with respect to heavy
manual labour, as work of this nature is likely to induce further
pain disability and possibly increase the structural impairment,
leading to further disability and handicap.
Treatment to date has consisted of instruction in movement skills,
leading to an improvement in spinal dynamics and a reduction in pain
disability. His impairment, however, is not stable and can easily be
made worse by the activities listed above.
4. Further treatment may be indicated, and particularly surgical
discectomy, if his disc underwent further prolapse, leading to nerve
compression and necessitating a decompressive operation.
5. Sergio's pain disability may well improve to the point of
non-existence, however, I believe his employment handicap will
remain, and it is inadvisable to return to manual labour.
6. I have advised Sergio that if he is to remain in Australia he
should learn English, so that his employment prospects will be opened
up and he will not be forced to work in unskilled positions of a hard
physical nature.
7. The prognosis is for some continuing pain disability with the
likelihood of exacerbations and remissions depending on his overall
back care and exposure to work which is beyond his capacity.
Permanent employment handicap as described above will remain."

23. At about this time the plaintiff was examined by a number of doctors for the defendant.

24. Dr Andrea examined him on 14 November 1990, Dr Vance on 19 November 1990, and Dr Keiller on 14 December 1990.

25. Dr Keiller re-examined him on 6 May 1992 and 16 November 1993. The defendant did not tender any of his reports.

26. The plaintiff tendered reports by Dr Andrea, who was not required to give oral evidence or be cross-examined. On this initial examination the plaintiff's brother interpreted for him. Dr Andrea did not detect very much on examination. He found it difficult to know how much he had been hurt in the accident. He did not think an operation was advisable. His prognosis was poor, as, in his experience, Dr Andrea said, "non-English speaking cleaners find it very hard to get back to work after accidents.".

27. Dr Vance was assisted by a fluent interpreter. On examination he found neck rotation to the left was restricted to about 50%, and there was a complaint of pain on abduction of the left arm. There was restriction and complaint of pain on flexion and extension of the lumbar spine.

28. In his opinion the plaintiff had suffered an aggravation of previously existing degenerative changes in the lumbo-sacral spine. Prognosis was poor.

29. Dr Vance was not called to give evidence or to be cross-examined.

30. Dr McGrath continued to see the plaintiff over the following year. The plaintiff undertook some studies in English. There was improvement in posture and range of movement. There was tenderness over the L4/5 region. Neurological examination was normal.

31. Dr McGrath's opinion had not changed substantially by 14 August 1991. In particular he thought that surgery was not indicated. However, he continued to believe that the plaintiff was not fit for heavy manual work.

32. Also in August 1991 the plaintiff was examined by three more doctors for the defendant, Drs Robbie, Burniston and Spira. The defendant did not call or tender any report from Dr Robbie or Dr Burniston. Dr Spira gave evidence and was cross examined by telephone, to which I will refer later. On this examination, his opinion was that the plaintiff had experienced a musculo-ligamentous strain of the neck and back from which he would have been expected to make a good recovery within weeks. The radiological changes were of long standing and clearly antedated the accident. What physical signs were present he thought were clearly functional, or even possibly deliberate. He did not regard him as a proper candidate for surgery. He concluded,

"Strictly in terms of physical signs, I would regard Mr Contreras as
fit to resume full duties. Nevertheless psychological factors
dominate his clinical picture and this makes it highly unlikely that
he can be convinced to return to work. Unfortunately the fact that
radiological changes in the lumbar region have been erroneously
attributed to the accident convinces Mr Contreras that he has
suffered major damage and the offer of surgery further highlights
this fact in his mind. In reality he has muscle aches and pains
largely related to tension. With tricyclic antidepressants he would
be expected to make a slow but steady recovery although some of the
physical features suggest that aspects of secondary gain may preclude
a return to work."

33. In May and June 1992 he was reviewed by Drs Keiller, Vance and Andrea.

34. Dr Vance found his complaints essentially unchanged, and Dr Vance's impression of him did not alter. He thought the plaintiff was not as disabled as he claimed to be.

35. Dr Andrea also found it difficult to decide how much of his condition could be blamed on the accident, and how much on the pre-existing pathology.

36. In July 1992 Dr White reviewed the plaintiff. To him the plaintiff complained that the radiating symptoms had extended down the left arm and left leg to the hand and foot respectively. His only medication was Naprosyn. Dr White noted markedly pain related behaviour. He noted objective muscle spasm at L3/4 on the left hand side. All cervical spine movements were restricted to less than fifty percent of normal. He could not detect any substantive improvement. That observation is at odds with Dr McGrath's findings, to some extent.

37. His report continued,

"Clinically there is little evidence for anything but soft tissue
damage to the cervical spine on the basis of investigations available
to date. Certainly there is no evidence of major neurological
dysfunction in either the upper or lower limbs.
In the lumbosacral spine there is radiological evidence of disc
narrowing at the L4/5 level with some degenerative changes at the
apophyseal joints and significant prolapse at the L4/5 level more
prominent on the left hand side. This would appear to be related to
some long standing degenerative changes probably with a superimposed
acute component following the motor vehicle accident.
On the basis of the information available to me at this stage I would
have expected some amelioration of Mr Contreras' complaints and
certainly would have expected him to be considerably more comfortable
with the markedly sedentary existence he is apparently undertaking at
present. The failure of this to occur would appear to me to indicate
a significant emotional component and I believe this man should be
assessed by a trans-cultural psychiatrist with experience in pain
management.
MRI scanning of both cervical and lumbosacral spines, would be
advisable considering the distinct possibility that this man may have
internal disruption of discs which has not been demonstrated as yet
but may explain his considerable pain which is not otherwise
explained on an organic basis."

38. He strongly advised against the plaintiff's returning to any heavy work.

39. An MRI scan was performed in September 1992. Dr White commented on the report in October 1992. He had not seen the actual films. The conclusion was that there was significant disc degenerative disease with focal herniation at L4/5 level and probable L5 nerve root compression. There was also anterior disc herniation at L1/2 and degenerative disc disease at L5/S1.

40. In Dr White's opinion these findings indicated that there was substantial organic injury to explain the pain which was triggering the plaintiff's incapacity. He was certain that the pathology would prevent him doing repetitive work such as cleaning. There was not likely to be any substantial improvement. He suggested MRI scan of the cervical region.

41. His solicitors referred him to Dr Veness, consultant psychiatrist, who saw him with an interpreter on 16 February 1993. Dr Veness also had access to a number of reports from Dr Lai, Dr Andrews, Dr White, Dr McGrath, the radiographers and the physiotherapist.

42. The plaintiff complained that he had become irritable and depressed. He had difficulty in concentration and memory.

43. Dr Veness summarised his conclusions as follows,

"Mr Contreras represents a typical picture of a migrant worker with
poor English and no qualifications who has relied upon labouring
work. As long as he is physically healthy he can cope.
As a result of the motor vehicle accident he now has physical
injuries which cause pain in the neck, the back and down the left
lower limb. The specialists have diagnosed disc disease with nerve
root compression or irritation. A person with such a condition
cannot do labouring work or indeed other jobs which require stress
upon the spine such as being a driver or even having to sit at a desk
for long periods.
The psychological symptoms he reported to me were quite consistent
with a reactive depression, a common sequel to motor vehicle
accidents that cause pain and disability afterwards.
I have carefully gone over the reports of Dr McGrath, the
Rehabilitation Physician. He states his opinions (26/11/90) in seven
numbered paragraphs, all of which I agree with. He is permanently
handicapped with respect to heavy manual labour and the only chance
for employment in the future would be if he were to undergo English
language training followed by some training in a skilled area of
work. This looks like a mammoth task and it would obviously take
several years. It would need to be combined with adequate supportive
therapy to restore his self esteem, raise his hopes and motivate him.
I think the chances of this all being successful are remote. In
other words I doubt that he will gainfully employed again."

44. An MRI scan was performed of his cervical spine on 22 July 1993. It was reported to demonstrate multilevel spondylotic change, with possible minor cord impingement at C5/6.

45. Drs Robbie, Andrea, Spira and Keiller re-examined the plaintiff for the defendant late in 1993.

46. Dr Andrea reported the recent MRI scans as showing considerable degenerative change with some narrowing of the spinal canal. There was some cord impingement at C5/6, disc herniation at L4/5 and L1/2, and evidence of L5 root compression.

47. His conclusion was that the plaintiff was unfit for physical work, unsuitable for office work, and not likely to improve. Operation was not advisable. He commented finally:

"These degenerative changes, which are basically responsible for most
of Mr Contreras's symptoms, were not caused by the accident but it
did seem to trigger the symptoms. However, I would have expected him
to have experienced increasing neck and backache, even if the
accident had not occurred, and there is no way of telling how long
this would have taken to render him unfit for physical work."

48. Dr Spira also saw the MRI scans of July 1993, but disagreed with the report of diminution in canal diameter and encroachment on exit foramina. He preferred to rely on an MRI scan of the lumbar spine of 7 September 1992 and CT scans of 21 August 1990, which showed adequate canal diameters and exit foramina.

49. He did not believe that any of the radiological changes would be symptomatic, and symptoms of which the plaintiff complained were not typical of nerve root irritation. He thought that the plaintiff was exaggerating, and that aspirations of secondary gain dominated the clinical pictures.

50. In March 1994 his solicitors referred him to Dr Scott, occupational physician. On examination he found tenderness over his mid cervical spine, with pain on extension, flexion, rotation and lateral movements of his neck, especially on extension. No muscle spasm was noted.

51. Tenderness was elicited over the lumbar spine, maximal over L4/5 and L5/S1. Straight leg raising was to 40 degrees on the right and to 30 degrees on the left. The plaintiff demonstrated difficulty in moving on the couch, and in undressing and dressing.

52. Dr Scott's conclusions were,

"5. The answer to the question of his possibly being left with any
permanent disability is complex.
He apparently has some "normal for age" degenerative conditions in
his cervical and lumbar spines.
His cultural background will not, in my opinion, help his
rehabilitation.
The lapse of 4 years from the date of the MVA to present date does
not augur well in terms of future improvement.
However, there is no doubt in my mind, that he has suffered at least
soft tissue injury to his neck, plus aggravation of any pre-existent
degenerative conditions.
I also believe he has an intervertebral disc lesion at L4/5 which has
been caused by, or aggravated by, the MVA.
He apparently has been advised surgery - a discectomy - which he has
declined. Consequently I believe he has a permanent back condition.
6. Considering his background, the passage of time since the MVA, his
residual disabilities caused by, or aggravated by, the MVA, I do not
believe he is likely to be able to return to the sort of physical
work he was doing. Added to this is the fact that he has no
particular skills other than labouring/physical work.
7. For these reasons, as stated in 5 and 6 above, my prognosis is not
favourable for his return to previous work without pain or
disability."

53. Dr White reviewed the plaintiff finally on 16 April 1994. There had been no changes in the symptoms. He reviewed the radiographic evidence, which he interpreted much as had Dr Andrea. His conclusions were as follows:

"2. Mr Contreras has a degenerative disease in both his cervical and
lumbosacral spine. There appears to be a superimposed moderate to
marked anxiety and depression which, to some extent may have been
relieved by the attainment of a Disability Pension. The combination
of events renders him relatively incapable of undertaking any
physical work.
3. I have not prescribed treatment.
4. I think treatment should be directed at his depression and at pain
management.
5. I do not believe there will be any further disability beyond his
current incapacity to undertake physical activities.
6. I do not believe Mr Contreras will ever be fit for work again.
7. I believe his condition will stabilise at its current level."

54. The defendant's insurer instructed an inquiry agent to make observations of the plaintiff. Some were carried out in 1993, of which there was no evidence. Presumably they disclosed nothing to weaken the plaintiff's case.

55. Further observations were made during the period 23 May 1994 to 27 May 1994. The only evidence about them related to a period of about an hour and a half on 27 May, when the plaintiff was at premises at 5 Talbot Street, Forrest, which consisted of a house with a separate flat and a garage at the rear. Mr Gamble, the inquiry agent, gave evidence that he saw the plaintiff cleaning the top and bottom parts of about eight windows of the granny flat, and hosing the windows outside the flat. He also saw him carry a vacuum cleaner and attachments from a car into the flat, and saw him moving inside as if using the vacuum cleaner. All the plaintiff's movements appeared normal to Mr Gamble, and included occasions of bending 90 degrees.

56. Over that hour and a half he videotaped the plaintiff's activities for about 21 minutes. The videotape was shown to the plaintiff and is in evidence. I assume that Mr Gamble videotaped the more significant parts of his observations over the time that he was watching. The plaintiff is shown hosing the outside of the windows and using a very light squeegee on them, carrying a vacuum cleaner and parts from a car to inside the premises, and using a squeegee on the inside of the windows. He did that slowly, carefully and thoroughly. There was some bending involved, but the activities hardly qualified as hard labour. If there was any vacuuming if was for only a very short period, and not strenuous. The plaintiff was less than co-operative with counsel when he was cross-examined about his activities as shown on the tape, but it, and Mr Gamble's evidence about it, is not really significant to my mind.

57. He made more observations on 13, 14, 15 and 16 July 1994. On 13 July he saw the plaintiff arrive at premises at 7 Don Place, Spence, where he entered carrying some cleaning utensils, and was seen vacuuming in the upstairs window. That activity was also videotaped, over about two and a half minutes or less. He saw the plaintiff briefly at a number of other premises, cleaning window sills with a rag. There was more videotape, but it was not suggested that it showed anything significant.

58. The plaintiff's wife works as a casual cleaner. The plaintiff said that he often accompanied her, and sometimes helped her. I think that Mr Gamble's observations and the videotaped episodes are consistent with that explanation, and that the explanation itself is not inconsistent with his complaints, either to the doctors or in evidence.

59. Dr Lai gave oral evidence and was cross-examined. He agreed with Dr Scott's 1994 report. In his opinion the plaintiff's neck problem was mostly soft tissue injury. The back symptoms were caused by the disc lesion at L4/5. That area may have been pathological before the subject accident. If it was, the accident exacerbated it and made it symptomatic. He the accident not happened, and had there been pathology in the back, some other trauma might have brought on symptoms at some time, which could not be determined. The plaintiff, in his opinion, was capable of doing the light cleaning work observed by Mr Gamble, though he had not discussed doing it with Dr Lai.

60. Dr White gave evidence and was cross-examined. He thought that the history and investigations were consistent with the accident's having been the cause of the lumbar disc prolapse. Some of the symptoms, which could not be explained on the basis of that pathology, might be the result of pathology higher in the spine. He did not agree with Dr Spira's assessment that the plaintiff's complaints were largely either functional or exaggerated. He was inclined to the view that their cause was orthopaedic rather than neurological, but nevertheless organic. It would be permanently inadvisable for him to undertake heavy work.

61. Lastly, Dr Spira gave evidence and was cross-examined by telephone. He adhered to his view that any pathology seen in the radiological evidence was not the cause of the symptoms of which the plaintiff complained. He agreed that the plaintiff could have been influenced by the erroneous attribution of radiological changes to the accident by various doctors. Soft tissue injuries could become chronic where "people develop this overvalued sense of injury, and they start to splint the back or splint the neck by muscle contraction and this in itself can produce pain."

62. He suspected that this was probably the mechanism that is operating on the plaintiff.

63. Ultimately, it is not necessary for me to decide which particular mechanism is causing pain in the plaintiff's back. While it is true that on occasions he has made complaints to doctors which went beyond the limits of his actual symptoms, that is easily understood in the light of what Dr Veness said about him, which was uncontradicted.

64. Dr Spira and Dr White agree that the prolapse in the lumbar spine is not causing his symptoms. It does not really matter whether that prolapse existed before the accident, or was caused by it. I am quite satisfied that since the accident the plaintiff has suffered pain and disability which was caused by the accident, and the accident has had the result that he has since been, and will always be, unfit for heavy manual work.

65. I think it is significant, both in judging the sort of person that he is, and in explaining the psychological effects of the accident, to note that he returned to work as soon as he could after the accident. Dr Lai was trying to negotiate appropriate light duties for him. But he did not decide to stop working. It was his employer who told him to go home and come back when he was fit.

66. Despite Mr Branson's submissions, I did not form the view of him that he was, in effect, hiding behind the interpreter in order to be able to shape his evidence. Not all his answers were accurate in matters of detail, and in some cases that may have been deliberate, but in essential matters his evidence seemed to me to be consistent in itself and with other evidence. It would be necessary to examine parts of it in greater detail if his case had continued to be based on the proposition that he had two jobs continuously before the accident, but that claim was not persisted in.

67. Nor does the evidence of Mr Gamble or the videotape evidence cause me to doubt his evidence in general terms about his disabilities, or the doctors' conclusions based upon the history and symptoms that he described to them as well as their own observations.

68. In summary, at 42 years of age, the plaintiff was involved in an accident which, though not severe in itself, caused significant injury to his neck and lumbar spine. Whatever the physical mechanism involved, and taking into account the psychological elements, the result is that he continues to suffer pain, and he has been, and always will be, unfit for the heavy manual work that was his means of earning his living beforehand. There may be some improvement in his condition, but exacerbations are quite possible in the future.

69. He has no skills, and is not the sort of person who is likely to acquire any. Although he is physically capable of light work, his lack of facility in English and the scarcity of light unskilled jobs make it unlikely that he will obtain employment in the future. The possibility must nevertheless be taken into account.

70. He is now 47 years of age.

71. For his pain and suffering and loss of amenity I award $40,000.00, of which $10,000.00 relates to the future. I allow $2,500.00 for interest on the past component.

72. The out of pocket expenses are agreed at $8,011.50.

73. Counsel for the plaintiff conceded that the employment records indicate that between the time he arrived in Australia and the date of the accident the plaintiff was working sometimes full time and sometimes part time. He had been under investigation and treatment for diabetes, but there is no evidence that persuades me that his condition had any effect upon his capacity to work.

74. His net income over the years up to the accident was as follows:

Year ending 30 June:
1987 $11,647.00
1988 $11,071.00
1989 $13,425.00
1990 $15,162.00

75. The 1990 figure is distorted, because of the accident, and because he received $1,883.00 in benefits from Social Security. He lost about 10 weeks of work in that year, after the accident. If the earnings figure of $13,279.00 is extrapolated over a whole year, the result is $16,440.00, of $316.00 a week. The present award rate is $343.00 a week gross. On an hourly basis there are penalty rates for weekends, which he often worked.

76. I think that if calculations are made on the basis that at the time of the accident he was capable of earning $300.00 a week net, and making the calculation from 28 April 1990, there would be no need for any further discount in respect of the past loss. On that basis, in round figures, I award $76,000.00 for past loss of income.

77. Interest on that is calculated by allowing one half of the amount calculated according to the practice direction, which process gives a result of $25,400.00.

78. The present value of $300.00 a week for 18 years at 3% is $218,443.00. On the one hand his capacity may well have increased since 1990, had he not been injured. On the other hand, he may well have had a pre-existing spinal condition which could have restricted him at some time, he did not have permanent work, it is possible that he may get work, and there are the normal contingencies to consider. I think that the defendant is adequately protected if I discount the figure to $150,000.00 for future economic loss.

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

Pain and suffering $40,000.00
Interest 2,500.00
Out of pocket expenses 8,012.00
Past economic loss 76,000.00
Interest 25,400.00
Future economic loss 150,000.00
$301,912.00

80. I direct the entry of judgment for the plaintiff for $301,912.00