Peter Noel Wurth v Supler Pty Limited [1996] ACTSC 111 (1 November 1996)

SUPREME COURT OF THE ACT

PETER NOEL WURTH v. SUPLER PTY LIMITED
No. SC365 of 1995
Number of pages - 11
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MASTER T CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Subsequent work accident - Novus Actus Interveniens - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 136 ALR 1 Mahony v Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522

HEARING

CANBERRA, 10 October 1996 1:11:1996

Counsel for the Plaintiff: Mr G Stretton Instructing Solicitors: Porter Pilkinton & Bradfield

Counsel for the Defendant: Mr R S McIlwaine Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $56,538.35. 2. The defendant pay the plaintiff's costs.

DECISION

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MASTER T CONNOLLY
1. This is a claim for damages for personal injuries arising from a motor vehicle accident on 15 June 1994. The plaintiff, who was at the time working for the Department of Urban Services in its Waste Management Section was stationary at the intersection of Canberra Avenue and Geelong Street Fyshwick when he was struck by a vehicle as a result of the admitted negligent conduct of the defendant. The matter thus comes before me for assessment only.

2. The medical evidence tendered by the plaintiff establishes that he suffered genuinely debilitating soft tissue injuries in this accident, which were gradually improving. He had some time off work, and then returned, on a graduated basis, to his former employment, which involved a degree of heavy lifting and physical activity. On or about 9 November he suffered another injury while at work. The principal issue for determination in these proceedings is to unravel his present condition and to attribute to the motor vehicle accident an appropriate level of responsibility. It is common ground between the parties that the incident in November 1994 involved a combination of an entirely new injury which can not be linked to his previous condition, and an aggravation of his previous condition. The plaintiff continues to work in the Department of Urban Services, but he has not returned to his former employment, and is presently employed as a courier. This light employment is remunerated at a level substantially below his former employment, which carried with it considerable overtime. He has been in receipt of Comcare Benefits to maintain his pre injury earnings.

3. The plaintiff was born in Canberra in 1963, and was educated to the completion of Year 10 at Watson High School. He found work after a time following school as a car detailer, and then as a cleaner in a Canberra club. In 1984 he left this employment and travelled around Australia. He obtained employment as a casual with the Department of Urban Services in 1986, and later that year he was made permanent in the Waste Management Section as part of a cleaning team. The plaintiff's duties, which involved shift work, included cleaning around shops and emptying rubbish bins and the like. The plaintiff is a married man, with a young daughter born in April 1996.

4. The accident the subject of these proceedings occurred on 15 June 1994. Liability is admitted. The plaintiff was taken by a supervisor to Calvary Hospital following the accident. He gave a history of striking the back of his head on his head rest with no loss of consciousness. He complained of nausea and pain on the left side of his head, a headache and lower thoracic pain. He was found on examination to be tender over the left para vertebral area, cervical spine and anteriorly along the strap muscles. There was lower cervical bony tenderness and lower thoracic bony tenderness. No neurological abnormalities were detected, and x-rays revealed no fracture or dislocation to the cervical spine or thoracic spine.

5. The plaintiff was diagnosed with soft tissue injury involving his neck and back. He was given Panadol Forte and a soft collar, and allowed to leave. He attended a general practitioner the next day who confirmed this diagnosis and prescribed analgesic and anti inflammatory medication as well as physiotherapy. In his report of 13 August 1994 Dr Jamieson said "Mr Wurth has been examined on several occasions since his accident and there has been a steady improvement. When last seen, on July 20 1994, he was still complaining of pain over the left shoulder with some restriction of mobility of the cervical spine. It is impossible at this stage to determine whether Mr Wurth will have any long term complications as a result of this accident. He will continue to be reviewed over the next 6-12 months."

6. The plaintiff was seen by Dr Keiller, an orthopaedic surgeon, on 31 August 1994 for the purposes of a medico legal report. Dr Keiller said that Mr Wurth sustained a soft tissue injury to his neck. He recorded a history of about six weeks off work, but said that at the time of consultation he "...has resumed working full time, on full duties. He says that he still has an occasional headache and sometimes his neck gets a bit stiff. However the range of movement is full. He has not required any recent treatment or time off work. His shoulders and arms are symptom free. He has not noted any aggravating or provoking factors. He agrees that his residual symptoms are of nuisance value only, and not disabling."

7. Dr Keiller noted on examination that "The shoulders were fully mobile and pain free and other peripheral joints normal." His opinion was of a soft tissue injury: "Damage was probably caused by hyper-extension, limited when his head came into contact with the head restraint. Damage was to the supporting muscles and ligaments only, and there was nothing in the history, or on examination, to suggest any trauma to disc or bone. He has made an excellent recovery and his minor, residual, nuisance value symptoms should resolve over the next three to six months", although Dr Keiller suggested that, given the relatively short period since the accident, a review would be appropriate in about six months.

8. These reports present a fairly full picture of the plaintiff at about the time of his second accident, although I accept that he says that he was not feeling 100 per cent. He gave evidence of pain in the neck, and restriction in shoulder movement, although this is inconsistent with clinical findings at about this time.

9. There are conflicting versions of the accident at work. The plaintiff gave quite specific evidence that this occurred on 9 November 1994 while he was engaged in emptying rubbish bins at the Dickson shops. He says that he was emptying bins into the back of the truck and "...as I went to pick up one bin with my left hand to empty it into the back of the truck, I got it half way out of the stand and I just dropped it because it was too heavy." He said that, when he examined the bin, it was found to be full of house bricks. His colleague had to empty the bin, and then he was taken back to the depot and attended his doctor.

10. In cross examination the plaintiff conceded that in a Comcare claim form dated 10 November 1994 he referred to an accident on 8 November 1994 which occurred in Civic. In this form the accident is recorded thus "I was moving the steel hopper in the lane to clean the rubbish from behind there. On moving one bin, which wheel was caught in the hole in the roadway. As I tried to pull the bin out that's where the injury occurred." The plaintiff conceded that in his version in evidence in chief he had the date and incident wrong, and that his memory of the time was foggy. Dr Keiller in his report of June 1995 records a history of moving a bin on 9 November: "...he was lifting a heavy steel bin when it jammed. He gave it 'a big tug' and suffered a severe pain in the left side of his neck." In other medical reports on which the plaintiff relies the version given is more consistent with the lifting the bin full of bricks incident.

11. I do not think that anything really turns on this. Counsel for the defendant in cross examination made it clear that he was putting faulty recollection, which the plaintiff conceded, rather than invention. Whatever the precise details, I am satisfied that an incident occurred on or about 9 November 1994 when the plaintiff suffered an injury while at work in the course of lifting a bin. Whether this occurred at Dickson or Civic, and whether the mechanism was a bin loaded with housebricks or a bin jammed matters little.

12. The plaintiff was referred to Dr Roberts, orthopaedic surgeon, in 1995. In a report of February 1996 he said that, on his first examination, he felt that many of the plaintiff's problems were coming from his neck, but he suspected that there may have been a physical injury, or impingement, in his shoulder, and he asked the plaintiff to return when his shoulder pain was bad. In this first report Dr Roberts said "I believe this gentleman has a cervical spine injury with some tenderness around his neck following the motor vehicle accident on 15 June 1995. There does appear to be some element of left shoulder impingement which is complicating the issue but both of these symptoms seem to be attributed to his injury as all his symptoms have started following the injury that he has described." Dr Roberts gave the plaintiff a steroid injection in December 1995, which he hoped would provide some relief.

13. Dr Roberts again saw the plaintiff in April and May 1996, and as a result he performed an arthroscopy on 28 May in which an impingement of the left shoulder was detected and an excellent decompression was obtained. Dr Roberts said that his shoulder was improving significantly in a report of July 1996, but in his report of October 1996 he said that on examination on 8 August he still had some shoulder discomfort, which Dr Roberts said "...may indicate some continuing impingement of the shoulder."

14. The significance of Dr Roberts' reports is that he clearly attributes the shoulder impingement to the second incident and not the motor vehicle accident. I shall quote at length from his report of 2 October: "It is my belief Mr Wurth was injured in a motor vehicle accident on 15 June 1994 where he sustained a soft tissue injury to his cervical spine. He described on his initial presentation to my rooms that he had predominantly neck pain with some pain over the trapexius muscle with some radiation down the left arm and some tingling into his left hand. I believe this is predominantly a cervical spine injury with paravertebral muscle spasm and referred pain radiating down the right arm. In November 1994 he described picking up some bins and emptying them as part of his normal course of employment. He describes this occurring on occasions when some of the bins were particularly heavy and therefore there was more strain placed on the shoulder than had been expected and this caused some discomfort in his shoulder over the next few months and on his subsequent investigation and treatment by myself, I diagnosed impingement of the left shoulder which eventually was treated with an arthroscopic examination. This did reveal changes of impingement and this would fit with lifting heavy objects over a period of time and some strain to the rotator cuff from lifting a particularly heavy object which was not expected. It is my belief therefore that the motor vehicle accident did not cause the impingement of his shoulder and therefore his symptoms in the left shoulder are more related to the jolt of lifting and injuries as described at work could result in damage to the rotator cuff and impingement of the left shoulder."

15. It is significant that Dr Keiller, who saw the plaintiff before the second accident, originally thought that the second work accident caused an aggravation of the first. In a report of June 1995 he said "He has sustained a further soft tissue injury, possibly with a sprain to one or more of the facet joints on the left side, and this should eventually settle down....Although the more recent trauma could have occurred irrespective of the previous accident, I believe that the earlier incident was likely to make him more liable to trauma at a lower level of force, particularly where a facet joint has been sprained in the past."

16. Following Dr Roberts' arthroscopy, however, Dr Keiller revised his view. In a report of 2 September 1996 he said "Differential diagnosis is often difficult when trying to distinguish between shoulder and neck injuries, and when trying to exclude concomitant injuries to both. I have only had Dr Roberts' findings second hand, but it seems reasonable to agree that there has been a genuine shoulder problem since the second accident, and caused by that incident........In summary, therefore, I consider he injured his neck alone in 1994. It was likely to recover fully in time, but had not done so at the time of the 1995 incident. It was aggravated by that second incident, and accompanied by a shoulder injury. Once again, his neck would be expected to recover further in time, but I see no reason to change the opinion given in my final report of 5/6/95 concerning future symptoms. Since the neck was only aggravated by the second episode, which would have been a temporary phenomenon only, in the main, any residual symptoms now, attributable to the neck alone, would stem almost totally from the injury in June 1994."

17. This view was confirmed in Dr Keiller's evidence before the Court. He maintained that the shoulder impingement was a discrete injury, but that the neck injury had been aggravated in the work incident. He was of the view that the plaintiff would recover from his neck injury in time and that he would be able to resume full activity but that he would have symptoms and occasional flares requiring treatment, but long intervals intermittently. In relation to the shoulder, he was less certain of the long term prognosis following the apparently successful operation. He said that "The results of surgery for impingement are variable. Some people have an extremely good result and can resume heavy activity. Others have a degree of residual pain and a sensation of weakness, even if it is not a true weakness which limits what they can do. And without a clinical examination once again I think it would be inappropriate to say anything."

18. Dr Roberts, who performed the procedure, was not called, and I draw no inference from this, but he did in his last report qualify somewhat his earlier prognosis on the likelihood of a full recovery to the shoulder.

19. The medical evidence on the plaintiff's case is essentially confirmed by the material tendered by the defendant. Dr Andrews reported to the defendant in July 1996 that "This gentleman continues to have his major problem in the left shoulder with some minor neck pain. He is in full time work and he has a mild level of ongoing disability that is likely to persist indefinitely...I believe that his left shoulder is now the main source of disability. The neck is only minor in comparison." It is significant to note that Dr Andrews on examination formed the opinion that there were no signs of functional overlay, and said in his report that "I see no indication from any of the reports that people felt that he was trying to amplify his disabilities."

20. Dr McEwin has also reported soft tissue injuries which have now nearly fully resolved attributable to the motor vehicle accident and a degree of aggravation, and a separate shoulder injury unrelated to the motor vehicle accident. He considered in July 1996 that there is now no incapacity resulting from the car accident, but that the shoulder injury continued to limit him to light work. His prognosis was guarded on this, saying that developments in the shoulder must be considered over coming months.

21. I am satisfied, having regard to all of the medical evidence, that the plaintiff suffered genuine soft tissue injuries as a result of the motor vehicle accident. These were moderate to severe, requiring the plaintiff to take some six weeks off work, but he was returning to full duties by late 1994, although not fully recovered. I am satisfied that he suffered an aggravation to these injuries as a result of an accident at work in November 1994. While there is a conflict in the evidence as to the precise nature of this injury, I am satisfied that nothing turns on this. Dr Keiller had both versions put to him and said that the mechanism of injury on those two occasions would both be consistent with neck or shoulder, or both, being injured. I am also satisfied that the work injury caused a new and discrete injury to the shoulder, being an impingement, which has subsequently been treated surgically. This injury has caused, and continues to cause, a significant incapacity to the plaintiff, but it is unrelated to the motor vehicle accident.

22. I am satisfied that the plaintiff would by now have no ongoing incapacity for his previous employment as a result of the motor vehicle accident, although minor symptoms may recur, and these must be taken into account. But the prime reason for his incapacity from shortly after the November 1994 incident was the separate shoulder injury. It is clear from the medical reports that this was not fully understood by the doctors involved in this matter until Dr Roberts established the existence of the impingement in 1996. Until then many of the reports have proceeded on the basis that the difficulties the plaintiff was experiencing with his shoulder were associated with the soft tissue type injuries originally incurred in the motor vehicle accident and aggravated by the work accident.

23. Counsel for both parties indicated that it would be useful in respect of the plaintiff's ongoing dealings with Comcare if I could, on the evidence before me, make some attribution in percentage terms of the plaintiff's ongoing incapacities as between the motor vehicle accident and the work accident. A doctor who examined the plaintiff for Comcare in 1995, Dr Kretsch, reported that his disabilities were 60 to 70 per cent attributable to the motor vehicle accident and 30 per cent to the work accident, but he did not have before him Dr Roberts' findings at the time. In cross examination he reduced this to a figure of 30 to 40 percent attributable to the motor vehicle accident, and the rest to the work accident, and later accepted that this was only a "ball park figure" or a "guesstimate". Dr Kretsch was of the view that there was a degree of physical damage to the shoulder as a result of the motor vehicle accident, a view inconsistent with the reports of Drs Roberts and Keiller, and on this point I prefer their evidence. In any event, his opinion as to attribution is too vague to be of any assistance. Dr Eaton, the plaintiff's general practitioner, supported the 70 per cent figure in a report of September 1996, but this did not address the findings of Dr Roberts. His view was based on the assumption of an injury to the shoulder in the motor vehicle accident, and he admitted that, if this was so, he would have expected it to have been detected by the orthopaedic surgeon who examined him in August 1994, which it was not.

24. The findings by Doctors for Comcare and Dr Eaton of an attribution of 70 per cent of his disability to the motor vehicle accident is not consistent with my findings based on the report of Dr Roberts in October 1996 which has been agreed to by Dr Keiller. I find that the principal and overwhelming cause of his incapacity to work following November 1994, or a short period thereafter, was a discrete injury to his shoulder. This has now been operated on, but I can not on the evidence before me establish the extent of his ongoing disability. As I find that this was not attributable to the defendant, I am of course not required so to find, but it is clear from the views of Drs Keiller and Roberts that it will be some time before clinical examination will reveal the full success or otherwise of this surgical procedure. He may, as Dr Roberts hopes and Dr Keiller describes, recover fully and be able to return to his full pre injury duties, but he may, as Dr Keiller explains, continue to suffer an incapacity. This matter can only be resolved by time and further medical examination. The defendant showed the plaintiff and Dr Keiller video film of the plaintiff playing golf. The plaintiff had admitted playing golf, although not often and with some restriction to his swing. Dr Keiller, who saw the evidence, was satisfied that there was nothing on it inconsistent with a continuing degree of restriction in shoulder movement, and I accept this evidence.

25. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 136 ALR 1 where his Honour said (at 4): "When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

26. In this case the plaintiff's general damages are to be assessed on the basis of genuine soft tissue injuries to his neck which was resolving well in the five months following the accident, but, which were aggravated by the 1994 work incident. These symptoms have now largely resolved but will provide occasional problems for the plaintiff. I award general damages of $20,000, with $15,000 for past injury resulting in interest of $713.

27. In relation to economic loss, I must assess the plaintiff on the basis that his loss from the date of the accident until the work incident was entirely the responsibility of the defendant. This amounts to $5,261.15, being the Comcare payments which were provided during this period.

28. My findings on the medical evidence are that the plaintiff on or about 9 November 1994 in an incident at work suffered an aggravation of this lower back condition and an entirely new injury to his shoulder. The lower back injury would probably have involved a set back in the plaintiff's return to full duties and a time off full duties similar to the first accident, but the entirely new injury to the shoulder amounted, in my finding, to a discrete cause of his inability to work until the date of the trial.

29. Whether or not a subsequent event will relieve a tortfeasor of liability will depend on the facts of each case. In Mahony v Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 the High Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) said at 528: "A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112. Whether such a line can and should be drawn is very much a matter of fact and degree."

30. In this case it is certainly foreseeable that where the plaintiff has suffered soft tissue injuries to the back and neck as a result of the negligence of the tortfeasor, an aggravation of such injuries could occur as the plaintiff seeks to resume his normal labouring duties. To this extent the aggravation of his injuries is attributable to the motor vehicle accident.

31. The discrete injury to his shoulder, which occurred due to the mechanics of his attempt to lift a heavy object and irrespective of his pre existing soft tissue injuries, can not be attributed to his motor vehicle accident. This has been the predominant cause of his economic loss since 1995, but the aggravation to his neck and back would, in any event, have set the plaintiff back in his return to full duties. I have already indicated that I do not find the attempts to quantify the impact of the two accidents in percentage terms at all helpful given the admission by Dr Kretsch that his revised figure of 30-40% attributable to the accident (down from his original 60-70%) was a guesstimate. Given the period of delay in returning to full duties caused by the first accident resulted in a loss of $5,261.15, I am satisfied that the aggravation would have produced a similar set back, and I award the sum of $6,000 in respect of economic loss between the period of the first accident and the hearing. It follows from this that I am satisfied that the effects of the motor vehicle accident would have dissipated so that, from early to mid 1995 he would have been able to return to his full duties. To the extent that he remains unfit for full duties, this is entirely attributable to the work accident, but the medical evidence before me is insufficient to determine the extent of the success of the surgical intervention on his shoulder.

32. I award $11,261.15 in respect of past economic loss which, with interest, amounts to an award of $12,500.

33. While I am satisfied that his present ongoing economic loss is attributable solely to the work accident, that is not the end of the matter. The plaintiff has suffered a genuine back injury which has been aggravated. He has worked as a labourer in the Department of Urban Services for some years, and this is his preferred form of employment, paying a higher wage than his present courier duties. Even if his shoulder completely resolves, the fact of his back injuries must remain a latent threat to his future economic capacity, for which a buffer award is appropriate. Dr Andrews in his report to the defendant of 18 July 1996 acknowledges Dr Keiller's opinion of June 1995 that there will be ongoing residual symptomology from his back. While these doctors agree that his back will not prevent him from resuming his full time duties should his shoulder resolve, a history of back problems and a risk of recurrence is a factor of some significance for a plaintiff such as Mr Wurth. This is not an easy matter to assess but, acting on Counsel's exhortation to "do the best I can" I award $20,000 by way of a buffer for future economic loss.

34. In relation to out of pocket expenses, I have no difficulty in awarding the whole of the out of pocket expenses incurred up to the work incident, a sum of $1,325.35. I was advised by Counsel that Comcare have paid the sum of $8,055.90 in out of pocket expenses subsequent to the second accident. There is no precise way to attribute this between the two accidents. As I have found that the work accident did aggravate the soft tissue injuries, it is not appropriate to say that all of this sum is attributable to the second accident alone.

35. Certainly, the whole of the costs of the surgical intervention on the shoulder, which from Comcare materials contained in Exhibit "E" seems to amount to $3,573, is the sole responsibility of the employer. This leaves an amount of some $4,482 in out of pocket expenses paid after the second accident. Much of this would have been incurred regardless of the shoulder impingement. Unless the parties are able to provide a more precise attribution of these costs, I propose to award $2,000 of this in respect of out of pocket expenses attributable to the defendant, making a total out of pocket award of $3,325.35.

36. This amounts to a total sum of $56,538.35, which I award, with costs.