Edward John Oriel v Glenn Raymond Field [1995] ACTSC 40 (19 April 1995)

SUPREME COURT OF THE ACT

EDWARD JOHN ORIEL v. GLENN RAYMOND FIELD
No. SC771 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 Vehicle Accident - Cervical, thoracic and lumbar spine - Public servant - Early compulsory retirement - No issue of principle.

HEARING

CANBERRA, 6-8 February 1995
19:4:1995

Counsel for the Plaintiff: Mr R. Williams QC and Mr R. Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: Mr B. Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

The Court orders that:

Judgment be entered for the plaintiff for $458,272.00.

DECISION

A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 8 January 1983. Liability is not in issue.

2. The plaintiff was born in Paddington in New South Wales on 2 March 1935. He left school at the age of 15, with the Intermediate Certificate. He began work as a telegraph messenger, and after a number of different jobs, and 6 months national service in 1954, he joined the New South Wales Public Service as a clerk in the Department of Education in 1958. He married in 1960. His daughter was born in 1966, and his son in 1968.

3. He undertook training as a computer programmer in 1965, and over the following years held a number of positions at relatively senior levels, where his clerical and computing skills were relevant. In 1969 he completed an accountancy certificate course, and joined the Australian Society of Accountants. He transferred to the Commonwealth Department of Health in June 1970, and was promoted to programmer class 8 in 1971, and senior programmer class 9 in 1975. That position was redesignated as Computer Systems Officer Grade 3. Over the next five years he spent a number of periods in higher duties, and was promoted to Computer Systems Officer Grade 4 in July 1980. He continued to serve occasionally at higher duties. He was obviously competent at his job, and enjoyed it. He intended to continue at work until the normal retiring age of 65.

4. In January 1983 he was generally in good health. He had given up smoking some time earlier, and had taken up regular exercise to control his weight. He rode a bicycle, played tennis and golf, and was a keen angler, gardener and woodworker. He was active in coaching Junior soccer teams.

5. In his evidence in chief he said that he experienced some pain from time to time in his right hand, which was controlled by aspirin. After strenuous activity such as gardening he had occasionally suffered some lower back pain.

6. At about 9 a.m. on Saturday 8 January 1983 the plaintiff was driving his Austin 1800 sedan in Wentworth Ave. Kingston, proceeding towards Fyshwick. He was alone in the car, and wearing a lap and sash seat belt.

7. As he approached the intersection with Eyre Street he was in the lane closest to the median strip. There were three lanes for traffic traveling in that direction. Eyre Street, leading to Kingston shopping center, forms a T intersection to the right. The defendant was driving a Holden sedan in the same direction, and in the center lane. As the plaintiff was about to draw level with the defendant, the defendant began to diverge to the right. The plaintiff also swerved right, and then braked, but the defendant's vehicle collided with the left side of the plaintiff's car, forcing it into the Eyre Street intersection.

8. The plaintiff described the impact as sudden and violent. As his car was forced sideways his right shoulder and his head collided with the right hand door pillar. He was dazed, and he thought that he may have lost consciousness for a moment.

9. Police and an ambulance were called, and his wife was informed. She came to the scene, in some distress. The plaintiff declined the offer of the ambulance officers to take him to hospital, and went home with her.

10. He had a headache. His shoulder, neck and back were sore. Aspirin did not relieve the pain. In his evidence he said that in the afternoon he went to Woden Valley Hospital. He was given a certificate for absence from work from 8 January to 15 January 1983, and some medication, and was allowed to leave.

11. He had been planning to holiday with his family at the coast from that day, but postponed the journey for a week. He did not enjoy the holiday because of pain and restriction of movement. On his return he saw his general practitioner, Dr. Madden, who gave him a certificate for absence from work until 25 January 1983.

12. Dr. Madden was called to give evidence. He had no independent memory of having seen the plaintiff, and no longer has any contemporaneous clinical notes. He referred the plaintiff for physiotherapy, and his referral, dated the 25 January 1983, stated that the plaintiff had degenerative changes in his lumbar spine, he had been in a motor vehicle accident 2 weeks before, and had stirred up his back pain. He had also injured his right shoulder "with soft tissue injury only."

13. The plaintiff had exacerbated his back pain lifting luggage from his car and trailer after returning from holiday on 23 January 1983.

14. The plaintiff was first examined at Woden Valley Hospital Physiotherapy Outpatient's department on 2 February 1983. The physiotherapist recorded that the plaintiff gave her a history of "osteoarthritis" of the lumbar spine for years, but no previous history of shoulder pain.

15. In evidence the plaintiff agreed that he had, before the accident, sought medical advice about his back in 1974 and 1978. He had not, however, lost any time from work, or suffered any limitation on his capacity for vigorous exercise before the accident.

16. On examination the physiotherapist found him very tender over the right sacroiliac joint, lower lumbar, mid thoracic and cervical spines. She elicited muscle spasm. His right shoulder was tender and painful. All lumbar spine movements were limited either by pain or stiffness.

17. He further aggravated his symptoms by a fall on an escalator on 3 February 1983. He continued to receive physiotherapy until mid September 1983.

18. At reassessment before discharge he complained to the physiotherapist of intermittent pain in his spine, both shoulders and right buttock. Range of movement was full in the cervical spine, though still limited in the thoracic and lumbar spines.

19. Meanwhile, he was consulting Dr. Madden, who issued work certificates from time to time. X-Rays on 7 February 1983 showed mild degenerative changes in the mid third of the thoracic spine, slight narrowing of the lumbosacral disk space, and no abnormality in the right shoulder.

20. In March 1983 he also began to receive treatment from Mr Wyss, a chiropractor, at the suggestion of the physiotherapist. He was to continue to see him fairly regularly over the next five years. He found that form of manipulation very helpful in relieving muscle spasm.

21. The plaintiff returned to work on 11 March 1983. Despite changes to the furniture at his work he continued to suffer neck and back pain and headaches. Medications and lack of sleep affected his efficiency.

22. He consulted Dr Madden in April, and an X-ray of the cervical spine that he ordered showed degenerative changes at the C3/4 and C4/5 levels, with marked foraminal involvement at C3/4. He did not see Dr Madden again until December 1993, and it was to be the last time. He decided to change his general practitioner, because, he said, he could not accept the story he was getting that he only had soft tissue damage. Dr Madden expressed his views in a report dated 14 February 1986 as follows:

"I have not seen him since 7/12/83 and I am therefore unable to say
how he has progressed since then.
Mr Oriel has had long-standing problems with his cervical thoracic
and lumbar spine. This fact is obvious from the appearance of his
X-rays.
I believe that it is likely that his symptoms were triggered by the
car accident. However, they were exacerbated or made to recur when
he was unloading the boot of his car as described above.
I would imagine that Mr Oriel's symptoms would eventually have
settled. However, because of the underlying defects in his spine it
is possible that another incident could trigger a recurrence of some
or all of the above symptoms.
I do not see any reason why Mr Oriel would not be able to continue
in his present occupation which I understand to be mainly
administrative."

Although the plaintiff did not see Dr Hislop until 19 November 1984, he was continuing to receive treatment from Mr Wyss. By the time he did see Dr Hislop he was beginning to experience constant pain in the lower back which radiated down his left leg. On examination Dr Hislop found restricted straight leg raising, restricted back movement and tenderness over the lumbar muscles. He thought that the back strain injury was caused by the motor car accident. He first prescribed an anti-inflammatory drug, which had little effect. He could not offer any suggestion other than rest.

23. On review in November 1985 Dr Hislop thought his condition had deteriorated, and he ordered lumbar X-rays. They did not demonstrate any joint abnormality.

24. On 21 February 1986 the plaintiff reported to Dr Hislop that the lower back pain was constant, becoming more severe, and radiating intermittently to both legs. Dr Hislop ordered a CT scan, but it did not demonstrate any abnormality at L3/4, L4/5 or L5/S1.

25. During 1987 the plaintiff consulted Dr Cassar, who administered acupuncture and laser therapy and other pain management treatment. He referred the plaintiff to a consultant psychologist. He seems to have diagnosed fibrositis. In the light of the neurosurgeon's findings on later operations I am unable to place much weight on Dr Cassar's opinion or prognosis, nor indeed on the views of Dr Madden.

26. He continued to see Dr Hislop and Mr Wyss from time to time.

27. In January 1989 Dr Andrews examined him for the defendant, and ordered a CT scan of the cervical spine. Dr Andrews reviewed the X-rays and CT scan. On the basis of that evidence and his examination he thought that the plaintiff had a definite L5/S1 disc lesion, and that he probably also had cervical disc pathology. The plaintiff's evidence was that Dr Andrews suggested to him that he should get a referral to a neurosurgeon. His general practitioner referred him to Dr Chandran, who saw him first in February 1989. He reviewed the earlier radiography, and had a further MRI scan performed. It suggested a bulge of the L5/S1 disc.

28. In April 1989 Dr Chandran administered epidural steroid injections, which gave temporary relief. The symptoms failed to respond to further physiotherapy. He advised an operation.

29. On 8 February 1990 Dr Chandran performed decompressive laminectomy from L4 to S1, with excision of the L5/S1 disc on the left, in order to decompress the nerve root. The L4/5 nerve roots were decompressed, without disc excision. On review on 27 March 1990 there were still complaints of back pain and leg pain, though the intensity had lessened. He prescribed a course of Feldene, and further physiotherapy.

30. The plaintiff returned to work in May 1990.

31. In May 1990 Dr Chandran administered a facet block to the thoracic spine and to the lumbar region. The procedure itself was painful, and the relief it gave was limited and temporary. In July 1992 the plaintiff reported to him that the left leg pain had settled, but he was still having pain in the thoracic region. A TENS machine was tried, but it did not give significant relief.

32. In November 1990 Dr Chandran administered another facet joint injection.

33. The plaintiff's neck continued to trouble him.

34. In a Minute to Personnel Services in June 1992 his supervisor was to report that during the years 1989 and 1990 the plaintiff was an efficient and effective officer, managing his section well, despite evidence that he was working in constant pain. That picture was to change.

35. At about this time a number of promotion opportunities became available in the department. The plaintiff applied, but then withdrew his application, because he thought that his health was such that he would not be able to do the job properly.

36. On 11 July 1991 Dr Andrews examined him again for the defendant. He commented,

"He has some tenderness and movement restriction at C3/4, 5/6 and
some tenderness on pressure over the spine of C7.
This fellow appears to me to be quite genuine. We know that he has
had disc problems in his lumbar spine dealt with surgically fairly
satisfactorily. He has continuing problems in the cervical spine
which I believe are two discs which will probably eventually come to
a Cloward's procedure.
His condition of course is not stable. The end result will depend
if he has surgery on his cervical spine and how successful that is."

Dr Chandran investigated him with a cervical discogram on 23 August 1991. There was painful disruption of the disc at C4/5 and C5/6. He advised a cervical fusion. The plaintiff wanted the question of liability sorted out before undergoing the operation. Dr Chandran commented in his report dated 23 September 1991,

"Mr Oriel has undergone a lumbar disc excision and decompression
procedure for injury to the lumbar spine. For the injury to the
cervical spine he will require a cervical fusion. In the thoracic
spine there is no surgical treatment possible and further injections
and conservative measures may be needed. Mr Oriel has continued to
work because of the need to support his family, but periodically I
have seen him in considerable pain, mental distress and physical
disability despite which he has continued to work. Many others in
his condition would have by now given up. Further surgical and
physical therapy will be needed to keep his symptoms under
reasonable control. It is also likely that he may not be able to
continue employment to the retiring age of 65 years because of this
condition."

In May 1992 Dr Chandran reviewed the X-rays, in order to comment on the relationship between the accident and the plaintiff's symptoms. He reported that in his view the need for cervical fusion arose from the consequences of the injury suffered in the 1983 car accident. There was evidence of pre-existing degeneration in the thoracic spine, but the disc protrusion was of recent occurrence. The accident had been superimposed on a pre-existing condition which might or might not have been symptomatic.

37. In the lumbar region the need for the operation was due to the injury superimposed on pre-existing mild degeneration.

38. He was called to give evidence, and was cross-examined. He admitted the possibility that incidents in 1974 and 1978, before the accident, and the incidents when he was lifting the suitcases and fell on the escalator after the accident, may all have had an effect upon a degenerative back, but given the relative violence of the various incidents the most likely cause of injury to the spine was the car accident.

39. After a number of absences from work on sick leave early in 1992 the plaintiff decided to proceed with the operation. On 28 May 1992 he was admitted to hospital, but suffered a severe reaction to the pre-medication, and the operation had to be put off until 26 June 1992. On that date, at Calvary Hospital, Dr Chandran excised the discs and fused the joints at C4/5 and C5/6, using bone grafts from the right hip.

40. After recovering from the operation he had a number of substantial periods of sick leave in the second half of 1992. The Commonwealth Medical Officer reviewed him on 10 November 1992. He certified that the plaintiff still had ongoing pain and problems, to a lesser extent in neck and arms, and more so into his lumbo sacral spine. He was not fit for normal duties for 2 months.

41. On 14 December 1992 Dr Chandran reported to the Department that the stage had been reached where the plaintiff was not fit to continue, and should be considered permanently incapacitated. He followed that up with a detailed report dated 5 February 1993, which concluded,

"He was last reviewed in December, 1992 with the above
investigations. He was now having pain in the back extending into
the left leg, pain in the neck extending into the left arm and
headaches and pain in the thoracic spine. He was taking up to six
tablets of Digesics a day and occasionally Valium. He was not
working now.
Mr Oriel thus has extensive injuries to his spine for which he has
undergone two surgical procedures. These have not relieved his
symptoms to the extent that he can work satisfactorily. He has
shown some improvement in the symptoms in the neck but has still
pain in the neck and headaches, pain in the lower back and pain in
the mid thoracic region.
No further surgical treatment is possible and physiotherapy is
unlikely to give any satisfactory relief. He is restricted now to
the extent that in my opinion he is not fit to return to any form of
work. He has strived hard in the last few years despite these
symptoms to work. I feel that he should be medically retired now."

42. The Commonwealth Medical Officer had come to the same conclusion on 4 January 1993. The plaintiff was given notice of his retirement, taking effect from 7 April 1993.

43. On 24 August 1993 Dr Tym, consultant psychiatrist, examined the plaintiff, at the request of his solicitors. He found no evidence of any significant psychiatric illness or disorder, either then or in the past. He was, justifiably, unhappy and irritated by the profound change for the worse in his lifestyle since the accident, but psychiatric or psychological help or conselling was not needed or appropriate.

44. Dr Andrews reviewed him on 31 May 1994. He noted complaints of neck pain, headaches and low back pain. He considered that the plaintiff's condition was permanent, and that no operative treatment or change in medical management was called for. He assessed his level of disability as mild to moderate.

45. His solicitors also sought a medico-legal opinion from Dr Owen White, consultant neurologist, in June 1994. He noted that the operations had given substantial diminution of pain, but not resolution. He agreed that no change in management was called for. The level of pain would increase with ageing. On the balance of probabilities the accident was the only significant contribution to the pathology.

46. Dr White was cross-examined by telephone. He was given a more detailed history than the one which he had obtained from the plaintiff. He did not change his opinion.

47. On the evidence I find that before the motor car accident the plaintiff had some degenerative changes in his spine. He had, in 1974 and 1978, suffered some minor discomfort, which on both occasions had no lasting effect. His physical capacity was demonstrated by his domestic and recreational activities. I am of the opinion that, had the accident not happened, he would probably have suffered no more than the usual degenerative changes associated with ageing.

48. The accident was severe enough to set up a chain of additional changes. They were slow enough not to be immediately apparent. The incidents of lifting the suitcases and being jolted on the escalator caused no more than temporary exacerbations, and played no significant part in the deterioration of the spine that gave rise to the need for a number of painful procedures and the two fusion operations.

49. Those operations relieved the pain to some extent, but he was still left with such restriction of movement and susceptibility to pain that he was not able to continue at work, and was compulsorily retired. It was a job that he enjoyed, and I think that he would probably have obtained at least one promotion, as did Mr Clarke.

50. He now 60 years of age. His expectation of life is of the order of 17 years.

51. For his pain and suffering and loss of amenity I award $60,000, of which $15,000 relates to the future. Interest on the past component amounts to $11,000.

52. A modest claim under the principles in Griffith v Kerkemeyer of $514 was not contested.

53. The out of pocket expenses are agreed at $36,758. The plaintiff has paid $18,555 of those. One half of the interest on that sum calculated in accordance with the practice direction is $17,132. I allow $17,000 for interest on the out of pocket expenses paid by the plaintiff.

54. Although I have found that the plaintiff could have expected a promotion, the date of that promotion is not certain. I think that a reasonable compromise is to make an assessment on the basis of a promotion on 1 July 1993, as suggested by counsel for the plaintiff. That gives a loss of $84,486 to 30 June 1994. At $863 a week there is an additional $36,000 to be added, giving a total past wage loss which I round off to $120,000. Half the interest on that amount, from 1 July 1992, according to the practice direction, is, in round figures, $20,000.

55. The present value of $863 a week for 5 years at 3% is $209,244. In all probability he would have continued to work till age 65, and I agree that, if anything, the conventional discount of 15% is generous to the defendant. I allow $175,000 for future loss of income earning capacity.

56. Medication is costing him about $25 a month. The present value of $25 a month for 17 years at 3% is $4,004. I do not think that figure should be discounted, as his condition is likely to get worse, rather than improve. I allow the round sum of $4,000 for future medication.

57. He is also receiving physiotherapy about twice a month at $42 a visit. The present value of $42 a fortnight for 17 years at 3% is $14,634. I allow $14,000 for future treatment.

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

Pain and suffering 60,000
Interest 11,000
Griffiths v Kerkemeyer 514
Out of pocket expenses 36,758
Interest 17,000
Past wage loss 120,000
Interest 20,000
Future income loss 175,000
Future medication 4,000
Future treatment 14,000
______
458,272
______

59. I direct the entry of judgment for the plaintiff for $458,272.00.