Vicko Jurkovic v Mandy Annette Driscoll [1996] ACTSC 115 (8 November 1996)

SUPREME COURT OF THE ACT

VICKO JURKOVIC v. MANDY ANNETTE DRISCOLL
No. SC1780 of 1988
VICKO JURKOVIC v. NORMAN WOOD
No. SC1782 of 1988
Number of pages - 11
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Two Successive Motor Vehicle Accidents - Attribution of Damages - Aggravation of Pre- existing Degenerative Disease in Back - Whether Asymptomatic Prior to Accidents - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 136 ALR 1 Wilson v Peisley (1975) 50 ALJR 207 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Koeck v Persic (unreported, Miles CJ, Supreme Court of the ACT, 26 March 1996) Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

HEARING

CANBERRA, 21-23 October 1996 8:11:1996

SC 1780 OF 1988 Counsel for the Plaintiff: Mr Mr D F Rofe QC and Mr B Hull Instructing Solicitors: Nelson & Co

Counsel for the Defendant: Mr C Leahy Instructing Solicitors: Abbott Tout Harper Blain

SC 1782 OF 1988 Counsel for the Plaintiff: Mr Mr D F Rofe QC and Mr B Hull Instructing Solicitors: Nelson & Co

Counsel for the Defendant: Mr F G Parker Instructing Solicitors: Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $124,886.87. 2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY
1. These are two actions for damages for personal injuries brought by the one plaintiff in respect of two separate motor vehicle accidents that occurred in Canberra within six months of each other in 1986. The matters were heard together, as liability is not is issue in either case, having been previously admitted in the first action and having been not contested in the second action. The plaintiff claims that the two motor vehicle accidents substantially aggravated or accelerated pre existing degenerative diseases in his back so that he is now incapable of working at his former trade of plant operation, or at all. The issue for determination is thus the assessment of damages and the attribution of those damages between the two defendants.

2. The plaintiff was born in April 1939 near Mostar in what is now Croatia. He was born into a farming community and schooled to the age of 16 years, when he left school to work on his father's farm. In November 1957 he fled the then Communist regime of his homeland and lived in refugee camps in Austria until being accepted for migration to Australia. He arrived here in March 1957 and lived for a time at Bonegilla migrant camp before finding work as a rural labourer in Wakerie, in South Australia. The plaintiff worked in various rural and general labouring jobs around Australia until 1964, when he married. From 1964 to 1968 he worked as a plant operator at dam construction projects at Blowering Dam Tumut and Kangaroo Creek Dam in South Australia. In the late 1960's he worked for a while opal mining at Andamooka and Cooper Pedy in South Australia. During this time he was injured in a rock fall, suffering an injury to his chest wall. As a result of this old injury he was given a certificate from his general practitioner in 1982 saying that it was appropriate for him not to wear a seat belt when driving, as this aggravated his chest and made him lose concentration while driving. The plaintiff was not wearing a seat belt at the time of either accident, but no issue was made of this by either defendant, and the general practitioner who issued the certificate was not cross examined on this point. Dr Voon has been the plaintiff's treating general practitioner for some 20 years.

3. In 1973 the plaintiff and his wife and children came to Canberra. He brought with him from the opal fields a bulldozer, and he worked for himself doing contract work for various construction companies around the district. He later bought a backhoe. The plaintiff had some problems with his lumbar sacral spine in 1984, and x-rays were taken at that time. He had some pain killers, but was continuing to work. In 1984 he leased a heavy excavator. He says that at the time he was working very long hours, for six or seven days a week at this time and up until the first accident. In April 1986 the plaintiff injured his right elbow when alighting from his heavy excavator. This caused him considerable pain and loss of feeling in the right hand, and he took some time off work, but was back at work at the time of the first accident.

4. The first accident occurred on 23 June 1986 at Belconnen. Liability for this accident was not in issue. A photograph tendered of the plaintiff's vehicle confirms that the accident was of considerable force. The plaintiff says that he thinks he briefly lost consciousness in this accident, although a report from his treating general practitioner records that he did not. In any event, he struck his head in this impact. He was taken to the Royal Canberra Hospital where x- rays were taken of the neck, hand and back. The x-rays of the cervical and lumbar spine showed evidence of degenerative changes, although the plaintiff and his treating general practitioner maintain that these were asymptomatic until this accident. The plaintiff was given some weeks off work and treated with metsal creme and aspalgin tablets. Dr Voon says in a report of June 1987 "He was diagnosed to have whiplash injury aggravating the pre-existing osteoarthritis." The plaintiff had some time off work in July, but otherwise was returning to his full duties, although he says that he had some ongoing pain.

5. The plaintiff says that as a result of his difficulties he took on his son in law in his plant operation business. At the time he had a major contract breaking up rocks at a quarry with his large plant, and he says that he was unsure of his long term future. He says that his son in law was working his plant on weekends in order to give him a break, and to provide back up should his injuries deteriorate. Evidence as to the payments made to his son in law in his taxation records at the time are unsatisfactory, as they show a figure for "subcontractors" whereas the plaintiff was adamant that he was paying his son in law cash wages and that he did not claim this as a tax deduction. He thus denies that the figure shown on his tax return represents a payment to his son in law. I am not satisfied that this money was paid as claimed so as to award this sum by way of damages. In any event, I am not satisfied that this is legitimately claimable in full, as it has previously been allowed as a deduction for income tax purposes. I am, however, satisfied from all of the medical evidence that the plaintiff was in the latter part of 1986 back to work but with residual back problems.

6. The second accident occurred at Weetangera on 13 December 1986. Liability for this accident was formally in issue, and the plaintiff tendered a contemporary report from Constable Ingram of the Accident Squad. I am satisfied from the plaintiff's own evidence and this report that the accident of December 1986 occurred due to the negligence of the defendant Wood in failing to stop at a stop sign at the intersection of Springvale Drive and Coulter Drive Weetangera. I find that the defendant, having originally stopped at this sign, proceeded to turn into Coulter Drive directly into the path of the plaintiff. I find that the defendant is liable in respect of this accident.

7. The plaintiff was again taken to Royal Canberra Hospital where his cervical and lumbo-sacral spine were x-rayed, with degenerative changes noted. The plaintiff first presented to Dr Voon in respect of this second accident on 30 January 1987, some six weeks after the accident. He reported pain in his back. Dr Voon diagnosed whiplash injury aggravating the pre existing osteoarthritis, and treated it with Voltaren. Dr Voon gave the plaintiff certificates off work until March 1987, and referred him to specialists. The plaintiff's case is that he has essentially been unable to return to his pre accident employment since this second motor vehicle accident.

8. 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'."

9. In this case the plaintiff's entitlement to damages will turn on the extent to which his present condition is attributable to the motor vehicle accidents. There is no question that the plaintiff suffered a considerable underlying degenerative back problem, but it is the plaintiff's case that this was largely asymptomatic until the motor vehicle accidents. An aggravation or acceleration of a pre existing latent degenerative condition is, of course, compensable (Wilson v Peisley (1975) 50 ALJR 207, Watts v Rake [1960] HCA 58; (1960) 108 CLR 158). In order to reach a conclusion on the extent to which the plaintiff's present condition is attributable to the motor vehicle accidents it is necessary to turn to the expert medical evidence.

10. There was a considerable amount of medical material admitted into evidence in this matter. With the exception of Dr Voon, who attended to give oral evidence, this was done by tender of reports only. Despite the volume of material, I am satisfied that a broad pattern emerges of common ground between the various experts which will assist me in determining this matter.

11. Dr Keiller examined the plaintiff for the first defendant in March 1990. In his report of 9 March 1990 he records a history which is broadly consistent with the plaintiff's oral evidence. I will set out his opinion at some length. "This man sustained injuries to his neck and back on the basis of marked, previous degenerative changes at both levels which, however, had been largely asymptomatic prior to these traumatic episodes. ...With the level of degenerative changes found, almost certainly Mr Jurkovic would have developed significant symptoms at some time in the absence of trauma. However, the first accident triggered the condition into a symptomatic state and there was significant aggravation following the second incident which I believe was the most important one, in regard to his continuing problem. The difficulty now is in assessing how much of his continuing complaints are due to the effects of these accidents and how much to the continuing degenerative process. Certainly the two accidents have denied him the chance of remaining symptom free, for a longer period, or indeed to the end of his working life....This man's condition is genuine. He is unfit for work. He will not return to the work force." Dr Keiller confirmed these views in a report of December 1991. By 1995 he reported that the plaintiff was deteriorating. He said in his report of August 9 1995, with the benefit of MRI reports, that "Mr Jurkovic would probably have become symptomatic without trauma, given time, and probably within 5 years from the date of the accident. The accidents, of which the second was by far the most important, have deprived him of the chance of remaining symptom free for longer. The accidents were the trigger which made his degenerative changes painful, but the accidents did not cause those changes, or contribute significantly to their progress." Dr Keiller noted in this report a degree of emotional overlay. By his latest report of September 1996 he said "It is now over 10 years since injury. He is obviously stable in a medico legal context. Further delay in settlement of the medico legal process can only be psychologically damaging and, in my opinion, serves no useful long term clinical purpose."

12. This view is generally consistent with the reports of Dr Andrews who also saw the plaintiff for the first defendant. In his report of 8 August 1989 he notes that the plaintiff "...has been a plant operator all his life and no doubt has received a lot of trauma to his neck and back and this shows in his x-rays which show chronic degenerative changes in the cervical and lumbar spine........This fellow has widespread degenerative changes in his cervical and lumbar spine as revealed on x-rays and is quite consistent with his known occupation and being a plant operator for most of his life. This has been aggravated by the accident....I believe that his present level of disability is significant and he is unfit for any physical work....he does have genuine problems. He had pre existing problems of moderate severity that were just waiting for something to go wrong. I suspect that without the accident his degenerative problems would have eventually caught up with him if he continued to work as a plant operator within the next 3-5 years and he would have had to consider giving up that type of occupation." By 1991 Dr Andrews was noting a degree of functional overlay, and he observed in his report of 19 December 1991 "Quite often patients with a lot of functional overlay like this can have a genuine problem that gets overlooked because of the rather marked exaggeration."

13. Doctors for the second defendant also acknowledge the possibility of aggravation of a pre existing condition. Dr Vanderfield reported in September 1990 that the plaintiff "...evidently had established pre existing complaints due to spondylosis of the cervical and lumbar regions of the spine and I would consider any aggravation from the accident in question has long since settled." This remained his view in 1995, although he said in his report of July 1995 "I would now consider his major disabilities and symptoms now stem from pre existing and natural disorder processes. The extent to which these have been aggravated has probably been equally shared by the two accidents described."

14. Professor Tracy who saw the plaintiff for the second defendant in September 1989 reported "In my opinion this man has well developed osteospondylosis affecting his spine, maximal in the lower cervical and lumbar segments. His physical findings are consistent with this, and if his symptoms began for the first time after the accident described, the exacerbation of his complaint due to that accident would be understandable." By 1995 Professor Tracy reported "In my opinion the injuries would not be responsible for the relentless progression of symptoms which have occurred, although patients with such degenerative change are more vulnerable to relatively minor injury which might well produce and exacerbation of symptoms. If it were accepted that there was a component of his disability attributable to exacerbation of progressive osteoarthritis associated with the two injuries described, then, from the notes and other medical reports, it seems that each injury was of about the same minor severity, so that half of any exacerbation component might reasonably be attributed to each of the injuries described."

15. This picture of aggravation or acceleration of a significant underlying degenerative condition is reinforced by the medical evidence called by the plaintiff. Dr Chandran reported in January 1988 that "The history given by this man indicates that he suffered, initially, a minor injury to his neck and back in a motor vehicle accident on 22.6.86 with further aggravation on 13.12.86. He complains of symptoms consistent with soft tissue injuries to his neck and back. There are features suggestive of nerve root compression. However, there is evidence of underlying degeneration in the neck and back of considerable degree. In the lumbar region, there is a fair amount of canal stenosis which cannot be entirely attributed to the accident. The degeneration has not been caused by the accident and has been present before. This has contributed to a fair degree of canal stenosis. The bulging discs again are features of degeneration as well as an injury to that region. It is thus possible that the injury caused further bulging of the lumbar discs. In the neck there are mild degenerations seen and this may have been aggravated by the accident. On the basis of his history, it is the second accident that seems to have caused more symptoms." By his 1990 report Dr Chandran suggested that there was an element of exaggeration or malingering in the plaintiff's complaints. His 1995 report concluded that "...since his symptoms are said to have come on after this accident it is most likely that there was an aggravation or injury to this region superimposed on pre existing lumbar canal stenosis."

16. Dr Danta, neurologist, examined the plaintiff in October 1990 and reported to the plaintiff's solicitors that "Some of his symptoms could be due to degenerative disc disease, particularly as he was working hard physically before he gave up work and this may account for some of the signs, but could not explain the majority of his symptoms. Further degeneration could take place, but I doubt if this would contribute significantly to the considerable pain that he now has."

17. Perhaps the strongest view against a connection between the plaintiff's back and neck condition and the accidents comes in a report from Dr Morris, an orthopaedic surgeon who had been seeing the plaintiff for his elbow and who reported to the plaintiff's solicitors on 13 November 1990. He said "In view of the fact that Mr Jurkovic was not wearing a seatbelt in these motor vehicle accidents due to his exemption, I find it surprising that he experienced a significant whiplash injury in that usually without a seatbelt, a person sitting in a car is merely thrown forward against the steering wheel or the dashboard and sustains injuries to the knees and chest rather than the flexion and extension injury seen with seatbelt recoil." This is the only opinion in support of this thesis, and as many of the other doctors who have linked the accidents with an aggravation of the degenerative condition have referred to the plaintiff not wearing the seatbelt at the time, I do not accept this view.

18. Dr White, neurologist, examined the plaintiff in 1987 on referral from Dr Voon, and in a report to the plaintiff's solicitors of November 1987 said "I would state that Mr Jurkovic is currently unfit for work and that I believe that the major cause of his being unfit is the motor vehicle accident in June 1986 perhaps with some complicating element from the December accident. There is no evidence that prior to that accident, despite the evidence of pre-existing disease, Mr Jurkovic was unable to perform his duties satisfactorily. Under the circumstances, I feel that the entire blame would have to be levelled at the accident."

19. The plaintiff has also suffered for many years with hypertension although Dr Voon was insistent that this alone would not have prevented him from working. His elbow injury has continued to be a problem, with Dr Voon providing him with medical certificates for extensive periods off work attributable solely to this condition. The plaintiff claimed disability insurance for the periods covered by these certificates. The plaintiff himself, in cross examination, conceded that his elbow would make it difficult for him to work his excavator now. He said: "My hand would collapse and I would make an accident, I could kill someone, and this is my fear. My fear is I could collapse and work around people, and how could I live with it."

20. I am satisfied on the medical evidence that the plaintiff has been unfit for work as a plant operator since the second accident. If that was the end of the matter, calculation of damages would be a simple matter.

21. But in this case the plaintiff had a serious underlying degenerative condition to his back, which I find has been accelerated by the accidents. Dr Keiller has said in 1990 that, but for the accidents he would have been "...symptom free for a longer period, or indeed to the end of his working life." With the benefit of MRI reports he revised this view in 1995 and said the plaintiff "...would probably have become symptomatic without trauma, given time, and probably within 5 years from the date of the accident."

22. Dr Andrews has expressed the view that "...without the accident his degenerative problems would have eventually caught up with him if he continued to work as a plant operator within the next 3-5 years."

23. Dr Vanderfield took the view that, by 1990, his degenerative changes would have caught up with him.

24. In addition to the underlying degenerative condition, there is also the plaintiff's elbow injury, which has significance to his ability to work.

25. The appropriate approach to take in assessing damages where there is a significant underlying condition or unrelated diseases or disabilities is to assess damages in the ordinary way, and then take these other matters into account by way of a discount for contingencies beyond the normal rate. As Miles CJ said in Koeck v Persic (unreported, 26 March 1996) "In addition to the 'ordinary' vicissitudes, regard must be had also to other contingencies of a more particular kind which occur not infrequently in actions for personal injuries. Such contingencies relate to some disabling or defective physical (or even mental) condition in the plaintiff which precedes the injury and which might have continued beyond the date of the plaintiff's injury. Thus it has been said that the damages must bring into account the possibility that events, not of an unusual or unlikely kind, could and might in the ordinary course of life, have evoked the plaintiff's post injury condition had not the defendant's negligence intervened: Wilson v Peisley (1975) 50 ALJR 207. It is a matter of judgment, not capable of precise medical or arithmetical evaluation, depending upon the nature of the condition, the inevitability or otherwise of its progression, the degree of possibility of external events which might contribute to its progression and so on."

26. This approach should, in my view, guide me in this case, both in assessing damages for economic loss and general damages. I am assessing damages on the basis that the actions of the tortfeasors have accelerated what would in any event have been a painful and disabling condition so that it has become symptomatic some years before it otherwise would have. In assessing general damages I must also have regard to this finding. In Koeck v Persic (op.cit.) Miles CJ said "No authority was cited on the question whether allowance for vicissitudes or contingencies would be made in components of an award of personal injury damages other than for future loss of earning capacity. Logic would suggest that such a course would be appropriate, although in practice it is probably done intuitively... Although there appears to be no direct judicial authority on the subject, there are several authoritative statements which support the practice. In Wilson v Peisley Barwick CJ said at 209 that the trial judge was "not in error" in taking the plaintiff's pre existing condition into account in connection with the assessment of total economic loss, past and future and further at 210 that there was "nothing unreasonable" in doing so when estimating compensation for loss of amenities. Stephen J said at 212-213 that the apparent inadequacy of the award was explained by the trial judge making allowance for the plaintiff's pre injury condition and for the likelihood of injury precipitating the disease which the plaintiff contracted as a result of the defendant's negligence. These contingent factors, his Honour said, played no less a part in the assessment of heads of damage than loss of earning capacity."

27. The proposition that damages for pain and suffering must also take into account underlying conditions was confirmed in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 645, where the majority judgment said that general damages must be reduced "...to take account of the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar neurotic condition."

28. The plaintiff has acknowledged that this is the appropriate approach, and has suggested a discount of between 30 to 40% for contingencies. Taking into account all of the medical evidence, and the evidence concerning the plaintiff's elbow including his own concession that he would not be safe working with his elbow, I find that an appropriate discount is in fact 50%.

29. The plaintiff's general damages must be assessed bearing in mind the underlying degenerative condition that would, in any event, have probably led to his present predicament. However, the early onset of his disabilities has clearly had a marked impact on all aspects of the plaintiff's life. He is constantly in pain and suffers considerable restriction in his movements. Taking into account all of these factors I assess general damages at $50,000, for which $40,000 represents past loss, bearing in mind the degenerative condition. This generates interest of $8,239, leading to a total award for general damages of $58,239, which, applying the discount for contingencies which I have determined, amounts to $29,120.

30. In relation to the plaintiff's past economic loss, I must note that the plaintiff was in 1992 sentenced to a term of imprisonment in relation to a charge of cultivating marijuana. The plaintiff gave evidence that he joined with another in this venture out of need for money. He was not cross examined on his evidence that his role was limited to minor domestic duties "minding" the crop. He did not engage in any heavy work, and so this is not inconsistent with a finding that he was unable to work at the time. The plaintiff's Counsel, very appropriately, acknowledges that no economic loss is able to be claimed for the period of imprisonment.

31. The plaintiff's claim for economic loss is based on a loss of average net earnings of $500 per week. While this is broadly supported by the plaintiff's tax returns for the two years prior to the accident (that is tax years 1984/5 and 1985/6) his earnings from his plant operator activities have shown wide variations. In the years 1982/3 and 1983/4 he in fact made substantial losses, while in 1980/1 his weekly net earnings were only $70. Assessing his long term loss on the basis of what was, by far, the best two years of a six year period is, in my view, inappropriate. An average of these six years would, however, produce a loss of only $248, which is equally inappropriate. I will take $400 as a starting point for the plaintiff's past loss.

32. The plaintiff continued to earn between the two accidents, and although his earnings were below his pre accident earnings, they were at $381, well above his average earnings over the previous few years. I would award only $1,200 for this period, being the plaintiff's actual time off of about 3 1/2 weeks.

33. The period from the second accident to the date of hearing is 514.17 weeks. Allowing for the period of imprisonment, some 78.14 weeks, this amounts to a period of 436.57 weeks. At $400 this amounts to a loss of $174,628. With the loss for the period between the accidents, this amounts to a total loss of $175,828. The plaintiff has in fact received payments from a sickness insurance policy during this period of $19,437 together with Social Security payments which made up actual earnings (adjusted for his time in jail) of $86,237. This amounts to a sum for interest purposes for past economic loss of $89,591, which generates interest of $67,193.50, a total sum for past economic loss of $243,021.50.

34. In relation to future economic loss, the plaintiff claims that this should be based on an average net earnings of $600 per week. Given my previous findings on his actual earnings performance, I prefer a figure of $500 giving, for the period to retirement of about 7 1/2 years, a figure of $175,500. This amounts to a total award for economic loss of $418,521.50 which I discount to $209,260.75 on the basis of his degenerative condition and his elbow.

35. Out of pocket expenses are agreed at $5,763, which I award. The plaintiff is clear in his views that he will undertake an operation to relieve some of his lower back pain, the cost of which is estimated at $8,770. This of course relates to his underlying condition and it is inappropriate to award this entire amount. I award $4,770 for future treatment. Future medication is claimed at $860, which I award, leading to a total award for future out of pocket expenses of $5,630.

36. This amounts to a total award of $249,773.75, which I consider appropriate in all the circumstances.

37. Having considered all of the medical evidence in relation to the question of attribution of responsibility between the two accidents, much of which I have set forth in these reasons, I find that the responsibility is evenly shared between the parties. I therefore order that in matter number SC 1780 of 1988 there be judgment for the plaintiff in the sum of $124,886.87 plus costs, and in matter number SC 1782 of 1988 there be judgment for the plaintiff in the sum of $124,886.87 plus costs.