Ghebretensae Haile v Elwyn Syphers [1996] ACTSC 80 (26 July 1996)

SUPREME COURT OF THE ACT

GHEBRETENSAE HAILE v. ELWYN SYPHERS
No. SC547 of 1993
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 - Soft Tissue Injury to Lumbar Spine - Loss of Earning Capacity - Plaintiff Continues in Employment - No Issue of Principle.

HEARING

CANBERRA, 4 and 5 July 1996
26:7:1996

Counsel for the Plaintiff: Mr B. Donovan QC and Mr M. Maxwell

Instructing Solicitors: Scott Sheils and Glover

Counsel for the Respondent: Mr R. Mildren

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $102,258.10.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for personal injuries arising from a motor vehicle accident which occurred in September 1991 in Canberra. The plaintiff, who operated a nightclub and restaurant was returning to his business premises with a load of produce from the markets and was stationary at the roundabout at the intersection of Parkes Way and Anzac Avenue when he was struck from behind by the defendant. Liability was not contested at the hearing and I have no difficulty in finding the defendant liable for the consequences of this negligence.

2. The claim proceeded as a claim for loss of income based upon the plaintiff's total incapacity to work. The claim, as particularised, was for damages for loss of future income in the order of $500,000. There is an immediate difficulty in this claim because the evidence shows that, while the plaintiff's condition has been relatively stable, he has in fact worked in his business, and for very long hours, continuously from the date of the accident until he sold his business at the end of the 1994-5 financial year. Since then the plaintiff has travelled extensively, with a period of 5 weeks in Africa with his family in 1995, and a further 3 months, in which he said he was exploring business opportunities, and has in fact commenced a venture, in 1996 although it has not so far proved particularly successful. In fact he only returned to Canberra 10 days before the hearing.

3. The plaintiff was born in 1943 in Eritrea in East Africa. He gained significant qualifications in Africa, with a Degree in Preventative Medicine, involving 5 years of undergraduate study, and a Diploma in Sanitary Science, involving a further 3 years of study. Both degrees were from Adis Ababa University. He has worked as a health worker for the Ministry of Health in Ethiopia, and also for the Relief Rehabilitation Commission in that region . He migrated to Australia in 1982, and successfully completed a Masters Degree in Public Health and Community Nutrition at the University of Queensland. From 1983 to 1986 he worked for the Pidjinjira Council, an aboriginal community organisation in north western South Australia as an administrator and contact point with the South Australian Health Commission. He left this job in 1986 to take a position, at quite modest pay, with the Australian Council of Churches to involve himself in the international relief efforts for his homeland, which had been devastated by the combined effects of war and drought.

4. When he left this position in 1988 he came to Canberra with his family, and established an African theme night club and restaurant, "Club Asmara" in the City entertainment area. This business, which he started from scratch, established itself as a popular and well known venue.

5. Evidence was given that the venture was established as a partnership, although the plaintiff was by far the majority partner. While both parties took a wage on similar terms the profit of the venture was split substantially in the plaintiff's favour, at a ratio of 93% to 7%. It is clear from the evidence of the plaintiff and his wife that this arrangement broke down with some bitterness, and the partner left the business, with some ill feeling towards the plaintiff, in November 1992. The plaintiff continued to operate the business until it was sold at the end of the 1994-5 financial year.

6. The motor vehicle accident occurred on the morning of 29 September 1991. The evidence establishes that this was a collision of considerable force. The impact collapsed the seat backs, and then propelled the plaintiff's vehicle across the round about. Very considerable damage, in the order of $9,000 was done to the plaintiff's car, although it was driveable. The plaintiff remained at the accident scene until he had spoken with police, and then took his load of produce to the club. He says that on the day he felt back pain, stiffness and bruising, but he carried on, thinking this was only minor. He did try to rest at home during the day, but he continued to look after his business.

7. He attended his local general practitioner the next day, who reported, on examination:
"... moves very cautiously with some lumbar pain. Lower back

tender....neck appears to be almost immobile",

and prescribed Feldene for pain relief. He returned on 4 October, when his neck was improving but his back was still very sore. A further examination on 15 October showed continuing pain in the lumbar back. Dr O'Neill reported:

"At this date Mr Haile is significantly incapacitated and in pain.
Only his obligation to his business has driven him to continue to
work."

He was referred to Dr Ashman for specialist advice.

8. Dr Ashman saw the plaintiff on 25 November 1991 and 10 December 1991. In his report of 28 April 1992 he said that he found localised low back pain in his first examination with restrictions on straight leg raising tests. He ordered a CT scan, which showed a bulging disc at L4-5. His report says

"I advised Mr Haile that the diagnosis was a congenitally narrow
lumbar spinal canal which had been further compromised by an
injury to his L4-5 disc at the time of the car accident".

Dr Ashman said in this report

"This man was totally incapacitated for his previous occupation
as a restaurateur from the date of his accident till the date of
my last review. I am unable to state whether his incapacity for
work continues. In general terms this man will continue to suffer
from back pain if he lifts heavy objects or repetitively bends his
lumbar spine. As such any future occupation should limit these
activities. This man will continue to suffer from back pain and
leg pain and he will be disabled to the extent that any heavy
physical activities will aggravate this condition."

In fact the plaintiff had continued to operate his business throughout this period.

9. While at this time Dr Ashman favoured surgery, by the time of his next report, of 20 May 1993 he thought this was no longer appropriate. He reported

"My prognosis for his low back pain is that he will continue to
suffer from back pain in the years to come and he will probably be
permanently disabled from repetitive lifting, carrying or
bending".

Dr Ashman's last report was dated 15 December 1994, in which he stated

"He continues to suffer from constant low back pain which is
preventing him from lifting or repetitive bending but despite
these symptoms he continues to go to work to supervise and perform
management duties in his restaurant. He uses regular analgesics to
relieve his symptoms and states that he is becoming more unfit due
to the pain preventing him from undertaking regular physical
exercise."

He continued

"I am not aware of the specific periods that this man has been
totally incapacitated for work. According to my clinical notes he
has not been working at his restaurant in a normal capacity since
the date of the accident and this partial capacity for work
continues to this day. In my opinion this man should continue to
avoid any heavy lifting of objects more than 10 kg in weight or
any repetitive bending in his future employment."

10. While the plaintiff gave evidence that he had modified his work, so that he paid for alcohol to be delivered upstairs rather than carrying the cases from street level himself, he continued to work long hours. He had varied the operating hours of the business, no longer regularly offering lunches, but he continued to be present until 4.00 or 6.00 am on Saturday and Sunday mornings after the important Friday and Saturday night trading periods.

11. Dr Ashman's assessment of the plaintiff's work capacity of 15 December 1994 is broadly consistent with other expert reports tendered on behalf of the plaintiff. Dr Ganora, consultant in rehabilitation medicine, said in October 1994 that

"It is quite possible that Mr Haile may have injured the lumbar
spine at the time of the motor vehicle accident he described, and
that a combination of external trauma with possible disc
protrusion and congenital canal sterosis can account for his
continuing symptoms. These have had the effect of interfering
with comfortable standing and manual handling and he has had to
alter his work practices accordingly, but the severity of his
symptoms has not been such as to require any medical intervention
for the past two years or more..... he should be regarded as
medically unfit for heavy manual handling or work that requires
frequent bending or twisting of the lumbar spine. Within this
context it would be understandable that he should have difficulty
in the course of his work activities and have required assistance
in manual handling and carrying of food and drinks."

12. In his next report of 7 November 1995 (as corrected by the Doctor), Dr Ganora confirmed his earlier view and said:

"Mr Haile continues to experience persisting back pain, associated
with radiological changes at the L4-5 level which could account
for his persisting symptoms. There has been no deterioration or
progression of his condition over the past 12 months and his
condition can now be regarded as medically stable. He remains
unfit for heavy manual work or for tasks that require frequent
bending and twisting of the spine. There is no indication for
surgical intervention..... There is no indication for other
rehabilitation and he remains fit for work which avoids the above
stated restrictions."

13. There is also a report from Mr Petroni, a clinical psychologist, who on 28 September 1994 concluded that

"...as a result of the psychological sequelae of his injury,
Mr Haile has sustained a loss of motivation and a sense of
foreshortened business future. He has also lost confidence in both
the social and business spheres of his life. These personality
changes have rendered him significantly less competent to conduct
business efficiently though it is difficult to quantify the extent
of his loss of competence. The rate of his psychological recovery
will be largely determined by the medical prognosis."

14. These medical reports, all tendered by the plaintiff, fell well short of establishing the total incapacity for work for which the plaintiff has particularised his claim. For a person who has done nothing but heavy physical work, a medical advice that they must avoid heavy lifting may well mean that they have no real economic capacity. But the plaintiff has, from September 1991 to June 1995, continued to run his business on a full time, or nearly full time, basis. Moreover, he is a highly qualified professional with a range of health and administrative work experience, although he has chosen in recent years to enter the entertainment and restaurant industry.

15. The plaintiff tendered a complex "forensic economic loss report" which is the basis of a claim for a future loss of between $452,000 and $372,000, depending on the level of discount for contingencies. Many aspects of this report were based on assumptions, and I am accordingly unable to accept this report, on its own, as evidence of the conclusions contained in it.

16. In any event the basic figures contained in the report show that the business, as is to be expected given the nature of the hospitality and entertainment industries, has fluctuated.

17. Moreover, a table of the plaintiff's income since 1990 (the accident was in September 1991) shows:

Nett Income P/A Nett Income P/W Taxable Income P/A
1990 $19,288 $371.00 $24,173
1991 $25,628 $492.00 $34,534
1992 $37,810 $727.00 $57,244
1993 $31,820 $612.00 $45,751
1994 $26,364 $507.00 $34,873
1995 $14,705 $283.00 $17,334

18. Thus his income in the three years following the accident was in fact greater than in the year preceding the accident, and only fell away markedly in the last year of the business.

19. In assessing general damages I must look at this claim as a whiplash type claim, but one with some associated radiological changes. The plaintiff continues to experience persisting back pain, which limits his work and recreational choices, but there has been limited treatment and no surgical intervention. The plaintiff has been able to continue to operate his business, albeit with restrictions, until he sold it in June 1995, and he has subsequently travelled extensively and explored some business opportunities in exporting palm oil from Singapore to Africa.

20. I award $30,000 for general damages, $15,000 being for past loss, resulting in interest of $1,440.

21. It is apparent from the foregoing that I do not find the plaintiff's particularised claim for economic loss to be established to the requisite standard of proof. The evidence established that the plaintiff continued to work, and indeed his income from his business, while it has fluctuated, in fact has been higher in three of the four years after the accident than it was before the accident. I must also take account, in assessing this evidence, of the highly speculative and variable nature of the restaurant and entertainment business in Canberra.

22. Nevertheless, it is clear that the plaintiff has been restricted in his abilities to fully participate in the active running of his club, and this was a major factor in restricting its opening hours over recent years. This is a case for a buffer type claim for past, as well as future, economic loss. In respect of past loss, I award $20,000 by way of a discretionary sum, generating interest of $5,698.50.

23. In respect of future loss, I accept that on the medical evidence the plaintiff is restricted in heavy work, but taking into account his actual work performance, his recent travel and business ventures, and his qualifications and experience, I can only find a buffer type award which will compensate him for the genuine disadvantage he does experience in competing with a fully fit man of the same age in the open labour market. I award the sum of $40,000 under this head.

24. Out of pocket expenses were agreed at $1,119.60. These have only included a very modest sum of $38 for pharmaceuticals in 1994, and this is consistent with the evidence of the plaintiff and his wife. I award $1,000 for future out of pocket expenses.

25. There is a Griffiths v Kerkemeyer claim in respect of assistance rendered to the business by the plaintiff's wife and children. In evidence it appeared that this assistance only commenced at the restaurant some years after the accident following the breakdown of the partnership. Mrs Haile said that, prior to this, they would "not have been welcome" at the restaurant. I find this significant, and I am unable to attribute all of the gratuitous services to the accident. Indeed, this was limited until the partnership broke down, and after this, when the business was solely a family business, resembled the normal assistance that would be expected in such circumstances. Nevertheless, I accept that there has been some assistance provided which is compensable, and award $3,000 under this head to cover both past and continuing gratuitous services provided to the plaintiff be members of his family.

26. This results in an overall award of $102,258.10, which I consider to be appropriate in all the circumstances.