Nicholas Anastasiadis v Alosz Papez [1996] ACTSC 65 (14 June 1996)

SUPREME COURT OF THE ACT

NICHOLAS ANASTASIADIS v. ALOSZ PAPEZ
No. SC319 of 1992
Number of pages - 6
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash - Loss of Earning Capacity - Whether Attributable to Accident or the Decline in the Market - No Issue of Principle.

Fazlic v Millingimbi Community Association [1982] HCA 3; (1981) 150 CLR 345 at 351
Goldsborough v O'Neill (unreported, Full Court of the Supreme Court of the ACT, 29 March 1996)

HEARING

CANBERRA, 29 and 30 May 1996
14:6:1996

Counsel for the Plaintiff: Mr R. Crowe

Instructing Solicitors: Crossin Barker Gosling

Counsel for the Defendant: Mr L.M. Morris QC and Mr M. McDonogh

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $90,994.71.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is an action for damages for personal injuries following a motor vehicle accident on 23 July 1988. Liability is not in issue, so the matter falls for determination solely on the basis of assessment.

2. The plaintiff was at the time of the accident a self employed architect and builder. He continues in that occupation, but claims that as a result of the accident he is only able to work at a substantially reduced rate, and claims a very substantial sum of damages for past and future economic loss. The defendant claims that, while the accident produced an injury which will generate reasonable general damages, his economic loss, to the extent that there is a reduction in his earnings in recent years, is more a function of the generally depressed market for architectural services in Canberra in recent years.

3. The plaintiff was born in Greece in 1938, and so was 50 at the date of the accident and is 58 at the date of hearing. He completed his high school education and commenced tertiary studies in town planning and architecture, but family circumstances dictated that he leave his studies and enter the workforce. He engaged in a range of activities, including some years as a merchant seaman, before emigrating to Australia in 1964 as a young man of 26. He worked for periods in Melbourne and Bathurst in the building trade and furniture making before settling in Canberra. He has lived here ever since, and established himself in the local building industry.

4. Mr Anastasiadis has spent the remainder of his working life in the building industry, and has steadily worked to improve his skills and qualifications. He obtained a C class builders' licence in 1968 which allowed him to work on residential extensions and less complex home and commercial constructions. In 1974 he registered the business name "City Drafting Service" . He studied drafting on a part time basis at the then Reid Technical College and in 1979 obtained his Architectural Drafting Certificate. He upgraded his builders' licence to a class B licence in 1982. In that same year he commenced studies at the University of Canberra for a Bachelor of Applied Science in Environmental Design, which is a prerequisite for further study to qualify as an architect. He continued to work while studying full time. He obtained his B.Sc. in 1985, and enrolled in the Bachelor of Architecture course at the same university, from which he graduated in 1988. All the while he was continuing to engage in building projects while undertaking his studies with a full time course load. It is considerably to the plaintiff's credit that he has been able to obtain his professional qualifications in this way. Following his graduation in May of 1988 he obtained his professional registration as an architect in November 1988, and his A class builders' licence in December 1988.

5. It is Mr Anastasiadis' case that his plans to build up a successful business in Canberra in design and construction and project management, the culmination of years of study and a lifetime of experience in the building industry, have been severely disrupted by the consequences of a motor vehicle accident which occurred on 22 July 1988. The defendant disputes this, saying that he has demonstrated a continuing ability to engage in these activities.

6. The motor vehicle accident occurred at Callam Street Phillip when the defendant's vehicle collided with the rear of the plaintiff's utility. The force of the collision was to push the plaintiff's vehicle a considerable distance forward, and in the resulting "whiplash" effect, the plaintiff struck his head on the rear window of the utility with sufficient force to shatter the glass. Liability for this accident is not in dispute, but the medical consequences of it and the effects of whatever disabilities it caused are disputed.

7. The plaintiff gave evidence that following the accident police attended and an ambulance was summoned. A friend of his was passing and attended the scene, and the police gave permission for him to be taken to Woden Valley Hospital by his friend. A report of 10 October 1988 from his then treating General Practitioner Dr Dimitri says: "He was taken to Woden Valley Hospital, had no x-ray investigations, and was sent home with analgesics and Valium tablets to relax his muscles. The next day, and the day after that, he noticed that the pain was increasing across his neck down to his back."

8. The plaintiff attended his G.P. on 24 July, and Dr Dimitri reported: "He looked in pain and was very disturbed and restless, and very shaky, although this was about 48 hours after the accident. 1) There was tenderness on the cervical spine and paracervical collar muscles, both trapexius and parathoracic spinal muscles. Full movement could be achieved, although it was painful in the terminal degrees. 2) There was tenderness over the lumbar and paralumbar spinal muscles. Full movement was painful and restricted, but could be achieved. 3) He had bruises with superficial lacerations and abrasions to his scalp and the left side of his face. 4) He had bruises and abrasions to the front of his left leg."

9. Dr Dimitri advised x-rays and referred him to a physiotherapist, Ms O'Donovan. She provided quite intensive treatment following the accident, and reported in November 1988 that he "has responded well".

10. Dr Dimitri in his November 1988 report was guarded about the long term outlook for the plaintiff. His conclusion was that he suffered from whiplash type musculo ligamentus disruption, which might take 3 to 5 years to settle.

11. In fact subsequent investigations through CT scans have revealed an L4/5 disc lesion. The presence of this injury is accepted by Dr Andrews in a report to the NRMA of August 1991, as well as by a range of doctors for the plaintiff. The only person who seems to dispute this is Dr Spira, who in reports to the defendant maintains that there is no abnormality. I cannot accept this.

12. The finding of a genuine and lasting injury at L4/5 is consistent with the plaintiff's evidence that over the years his neck has been improving, although it still gives some problems, while his back has been getting worse, and is now his major complaint. He gave evidence at the hearing that "headaches" were a major factor. This is not consistent with his history of symptoms given to various doctors over the years, and I cannot relate this to the accident. His present treating General Practitioner Dr Leerdam gave evidence that he is currently treating him for complaints that have involved referral to an opthalmological specialist. His Neurosurgeon, Dr Newcombe, has reported on 28 March 1996: "He has some headache which at this stage is unlikely to be related to the impact."

13. I accept counsel for the defendant's argument that the plaintiff is, perhaps subconsciously, attributing this to his motor vehicle accident. The medical evidence does not allow me, on the requisite standard, to link his headaches to the accident.

14. Having read all of the medical evidence which, apart from that of Dr Leerdam was tendered without cross examination in accordance with the practice of this Court referred to with approval by Miles CJ in Goldsborough v O'Neill (unreported, Full Court, 29 March 1996), I am satisfied that the plaintiff does continue to have a moderate level of disability as a result of his back injury which is attributable to the accident. While he has been advised by various doctors that this could be resolved by surgery, he has had conflicting opinions about the likelihood of success. Dr Newcombe has advised that surgery is "worthy of consideration", and Dr Gavaghan has advised that surgery "may well help", but Dr Chandran has said, "I do not think any surgical treatment is indicated". The plaintiff has adopted the not unfamiliar, and quite understandable, position of seeking to delay any operation to his spine if at all possible. I am satisfied that this decision is reasonable based on his advice (Fazlic v Millingimbi Community Association [1982] HCA 3; (1981) 150 CLR 345 at 351).

15. General damages should be assessed on the basis of ongoing moderate disability. He has not been hospitalised or undergone any operation. I award $15,000 for general damages, with $10,000 being for the past, resulting in interest of $1,566.

16. In assessing his disabilities I take as perhaps the best summary of the medical evidence the views of Dr Tym who, in his report for the defendant of 17 July 1995, acknowledged the existence of on going back pain and said "If his difficulties with the physical work, i.e. the building itself, for which he might well be considered to be to some extent disabled, are also affecting his abilities to get design work, for which he is not, in my clinical judgment, significantly disabled, then it might be that his physical disability is affecting his abilities to maintain his design and construction business overall."

17. This is not a case where the plaintiff claims an inability to work. The plaintiff acknowledges that he has continued in his activities as a designer and builder and project manager, but claims that his range of activities has been reduced. In cross examination he acknowledged that for two years after the accident, when he was the site supervisor for a very large redevelopment of the Hellenic Club at Phillip, he undertook a very demanding job, indeed the biggest project of his career. The plaintiff says however that this job took considerably longer than it should have because of his problems.

18. The plaintiff's range of physical activities, while restricted, still seems considerable. I do not accept Dr Spira's view that there is no disability, but the plaintiff has acknowledged that in recent times he has used a crowbar, lifted bags of cement of 20 kilograms weight, and engaged in other quite heavy activities. Nevertheless, I accept that he is limited in doing these activities for long periods.

19. In order to attempt to quantify his loss the plaintiff called another Canberra architect, who graduated in the same year, to demonstrate what the plaintiff could have been expected to earn. This is fraught with difficulties. It is one thing to compare the earnings of, say, a clerical officer of a certain grade with an injured plaintiff with the same qualifications and say that, but for the injury, the plaintiff would have had these earnings. It seems to me to be quite another to try to do this with a profession such as architecture. Two architects might have identical formal qualifications - one might be hugely successful, the other might struggle. Two law graduates might qualify in the same year with the same marks, with one going on to enormous success as a Queens Counsel, while the other makes a modest income with some difficulties.

20. Even with these caveats as to the appropriateness of this evidence, I do not accept that the evidence, if fully accepted, demonstrates a loss. Mr Kasparek, who gave evidence and allowed his financial records to be placed in evidence, acknowledged that the market for architectural services was very depressed in Canberra, with many architects earning income in other ways. He said that he was approaching the point where another business venture, with which he is involved, would soon surpass architecture as his main source of income. He also gave evidence that he had invested in and qualified in computer aided drafting, which was increasingly important in a design practice - something the plaintiff has no qualifications in.

21. The plaintiff tendered his own earnings record by way of comparison to Mr Kasparek. This shows an average income for the plaintiff since the accident of some $10,000, while Mr Kasparek had an average income over the same period of some $38,000. But in the financial year ending 1993 the plaintiff's income from his design activities was $32,601 while Mr Kasparek earned $27,374. My only conclusion from this evidence is that the market for architectural services is a fluctuating one, and dependant on many subjective factors. In one year the plaintiff has, post accident, shown earnings above that of the "comparable" architect. Figures of a very rudimentary nature tendered of the plaintiff's "total receipts" and "net profit" are not of a great deal of assistance, and again show significant fluctuation. In 1989 he records "total receipts" of $270,069 while recording a "net loss" of $2,493. In 1993, his "net profit" of $32,602 revealed a more successful result than that of Mr Kasparek, his "total receipts" were $119,549. These fell to $105,065 for 1994, but rose to $180,401 in 1995, for a declared net profit of only $5,254.

22. The only thing that I can conclude from this is that he is able to continue to engage in substantial business activity which has fluctuated since the accident from a low total receipts of some $105,000 in 1994 but back to some $180,000 last year. In 1993 his earnings were greater than those of another architect who was produced as a model of his loss.

23. The only approach that I can take in these circumstances is to look at this as a buffer type claim. I accept that there must have been a substantial loss in the first year following the accident, and I award the sum of $30,000 for past economic loss. This is a discretionary sum and includes any interest. While any assessment for future economic loss must necessarily be an exercise of discretionary judgment, made harder by the fact that he has shown an income that fluctuates broadly, I award the same sum, that is $30,000, by way of a buffer for future economic loss.

24. Out of pocket expenses have been agreed between the parties at $6,428.71. There is a dispute between the parties over future medical expenses. The out of pockets reveal that expenditure on medication for the last 12 months is about $16.00 per week, compared with $4.00 over the previous years. No explanation for this, save better record keeping, is available. As an exercise in discretionary judgment, I award $8,000 to cover future pharmaceuticals, physiotherapy and the possibility of future surgery.

25. This results in a global award of $90,994.71, which I consider appropriate in the circumstances.