Vlado Zec v Susannah Victoria Reed [1997] ACTSC 111 (19 December 1997)

SUPREME COURT OF THE ACT

VLADO ZEC v SUSANNAH VICTORIA REED
No. SC 787 of 1996
Number of pages - 5
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft Tissue Injury to Cervical and Lumbar Spine - Aggravation of Previous Underlying Degenerative Condition - No Issue of Principle.

HEARING

CANBERRA, 25 November 1997 (hearing), 19 December 1997 (decision)

19:12:1997

Appearances

Counsel for the Plaintiff: Mr D Campbell

Instructing Solicitors: Scott Sheils & Glover

Counsel for the Defendant: Mr R Letherbarrow

Instructing Solicitors: Hunt & Hunt

ORDER

Order:

1. Judgment be entered for the plaintiff in the sum of $55,592.80.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred in the late evening of 26 March 1993 at the intersection of Copeland Drive and Ginninderra Drive in Florey in the Australian Capital Territory. The plaintiff was the passenger in a car being driven by his wife which was proceeding in a southerly direction along Copeland Drive, when the defendant who was proceeding in a northerly direction along the same road attempted to execute a right hand turn into Ginninderra Drive, and collided with the car being driven by the plaintiff's wife. Liability was admitted at the hearing, and the matter proceeded before me by way of an assessment only.

The plaintiff was born in 1950 in Yugoslavia, and first came to Australia in 1972. He had been a factory worker in Yugoslavia, but found work in Australia as a labourer in the building trades. He returned to Yugoslavia, but settled permanently in Australia in 1980, and continued to work in the building trades. He developed an injury to his wrists as a result of his employment, which resulted in a workers compensation claim and a common law damages claim, which was settled with a cash payment in 1995. He was advised that he should not return to heavy work, and indeed the inability to engage in heavy labouring work was an aspect of his damages claim. In 1990 he was successful in finding employment as a janitor at Ginninderra High School, and he has continued with that employment to the date of the trial.

The plaintiff's claim is that the accident produced neck and back pain and pain to his knees. His complaints are summarised in a report of Dr Champion who reported to the plaintiff's solicitors on 4 September 1997, that as a result of the accident the plaintiff

"...experienced a cervical and lumbar spine pain syndrome and also persistent low grade pain in his knees. The cervical spine pain syndrome is diffuse, at this time was predominantly at C5-6, and it was associated with secondary allodynia in adjacent soft tissues (the clinical counterpart of sensitised nociception within the central nervous system). The cervical spine pain syndrome was not associated with any radiculpathy. It is a typical post whiplash type of disorder with chronicity influenced by the sensitisation of nociception and presumably by psychosocial factors although these were not strong in evidence."

Dr Champion also said that

"The knees appear to have sustained a direct blow presumably from the dashboard and he has mild patellofemoral arthraligia."

The plaintiff says that he began to experience pain and discomfort a few days after the accident, but that he decided not to seek medical advice, but rather to treat himself with creams. The plaintiff over the next couple of years saw his general practitioner on a number of occasions, but there was no record of any complaint in respect of these injuries. The first record of any complaint to a medical practitioner was in January 1995, some two years and nine months after the accident, when the plaintiff was referred, by his solicitor, to Dr Cassar for a medico legal assessment. Dr Cassar later provided a range of treatments to the plaintiff by way of massage and pain relief therapy.

A plaintiff who claims serious ongoing disabilities arising from a motor vehicle accident will face an inevitable challenge from a defendant when, despite a claim of significant ongoing disabilities arising from the accident, there is a long time period between the accident and the first medical consultation. When the elapsed time amounts to two years and nine months, and when within that period the plaintiff has seen doctors for other complaints with no mention of the claimed accident related disability, this challenge will inevitably be made with some vigour. The defendant's case was that any ongoing disabilities which the plaintiff now suffers did not arise from this motor vehicle accident. Dr Cameron, who reported for the defendant on 11 December 1996, concluded that

"Mr Zec has evidence of some degenerative cervical and lumbar spondylosis and knee osteoarthritis which are all considered to pre date the accident of 26/3/93. At most he may have suffered a minor temporary aggravation of these conditions in the motor vehicle accident, expected to heal within two or three weeks. Any continuing symptoms of discomfort are attributable entirely to his pre existing constitutional condition."

Dr Battlay, in his report to the defendant of 13 December 1996, was blunt in referring to the gap between the accident and the first report of symptoms.

"There is no indication that he had any major injuries at the scene of the accident, and with this type of background, it is very difficult to imagine that he would have suffered symptoms without seeking medical attention until more than two years after the accident, had he had significant symptoms. Under these circumstances, it is very difficult to make out a case for his present complaints relating to the motor car accident of 1993."

Dr Morris, in his report to the defendant of 18 August 1997, also noted that

"None of the people involved in the accident attended any hospitals and according to him he was not aware of any pain for three days and sought no medical attention for two years and then only after he visited a solicitor",

and concluded that

"I do not think there is any link between his current symptomatology and the accident described."

The plaintiff's counsel said that his client was a stoic man, who simply sought to cope with his problems by way of administration of Chinese creams. The plaintiff's son, and two friends of long standing, gave evidence in support of the plaintiff's claim that he had regularly complained of neck and knee pain and exhibited symptoms in the years since the accident. The plaintiff also called Mr Taylor, who is aged 72 and described himself as the handyman at Ginninderra High School. Mr Taylor was a most impressive witness, and described how, when Mr Zec first started work at the school in 1990 he was a very good worker, and assisted Mr Taylor in all heavy jobs. Mr Taylor left Ginninderra High School in 1992 to go to another school, but returned to Ginninderra High in 1994. He said that he noticed that the plaintiff was a completely different person. He noticed that the plaintiff had quite a few problems with his back and neck, although he still tried to do all his tasks. He noticed that the plaintiff would regularly have to take breaks and lie down on a couch in the janitor's room. He said that the plaintiff had told him that his difficulties had arisen from the motor vehicle accident.

On the whole of the evidence I am satisfied that the plaintiff did develop symptoms in his cervical and lumbar spine and knees as a consequence of this motor vehicle accident.

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) 1 CLR 49 where his Honour said (at 54):

"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'."

In this matter I assess the plaintiff on the basis of a soft tissue injury causing an aggravation of a previous underlying degenerative condition. Evidence was tendered that the plaintiff had brought previous proceedings in respect of an industrial accident in which he pleaded ongoing injury to his shoulders, arms, wrists, hands and neck. The plaintiff tendered medical evidence showing that this condition, which resulted in surgical intervention, was diagnosed as carpal tunnel syndrome. I am satisfied that there is no link between this condition and the plaintiff's present claim.

In respect of general damages, I award the plaintiff damages in the sum of $27,000, with $15,000 attributable to past loss; generating a total general damages award, with interest, of $28,421.

The plaintiff has claimed out of pocket expenses in the sum of $9,671.80 to trial. As I am satisfied that his condition is attributable to the accident, I award this sum. I note that this treatment has been principally incurred by way of an intense series of attendances on Dr Cassar, which amounted to $6,217.50. While I am satisfied that these expenses were reasonably incurred in a search for relief, this does not, on the evidence before me, establish a pattern for future out of pocket expenses. No claim for future out of pocket expenses was in fact particularised, and counsel conceded that the treatment from Dr Cassar had now ceased.

The plaintiff continued with his employment as a school janitor, and continues in that role. No past economic loss is claimed. The defendant tendered a video surveillance film which showed the plaintiff going about some of his duties as a janitor with little apparent restriction The plaintiff's claim for future economic loss is based on the claim that he may need to reduce his hours in the future, and would be at a substantial loss in the open labour market.

This type of buffer claim is familiar for these types of injury. In this case I must, however, take into account that the plaintiff has previously made and settled a claim which involved a component for future income loss. Documents relating to his workers compensation claim establish that he there made a buffer claim based on an inability, due to his carpal tunnel syndrome, to engage in heavy work in the building trades.

Nevertheless, he has suffered injuries to different parts of his body in this accident, and some form of buffer to adequately reflect this is appropriate, bearing in mind that the plaintiff has previously accepted compensation based on preclusion from his previous occupation as a manual labourer in the building trades.

Dr Champion, his orthopaedic specialist, said in his report of 4 September 1997

"He remains fit for his work which fortunately is relatively light and I think on present trends, and bearing in mind the nature of the man, it is likely that he will be able to continue that type of work long term."

Dr Searle, a consultant surgeon, reported to the plaintiff's solicitors on 16 February 1997. He advised that the plaintiff was permanently unfit for heavy work, but said

"He is fortunate that he can manage his present light work because he is able to rest frequently."

The plaintiff and Mr Taylor gave evidence that there was a couch in the janitor's room at Ginninderra High School where the plaintiff could take breaks when his symptoms were causing him distress.

I am satisfied that, notwithstanding Dr Champion's report, a modest buffer is appropriate against the possibility that the plaintiff may have difficulty, if he were to lose his present position, in obtaining similar light employment which offers him the flexibility he presently enjoys. I am satisfied, on Dr Champion's report, that the plaintiff otherwise should be able to continue in that employment to retirement age. In respect of future economic loss I award a buffer of $17,500.

This amounts to a total award of $55,592.80, which I award, with costs.