Marcello D'Ambrosio v Gregory Edward Hopkins and Anne Hopkins Trading As Hoppy Constructions [1997] ACTSC 47 (20 June 1997)

SUPREME COURT OF THE ACT

MARCELLO D'AMBROSIO v. GREGORY EDWARD HOPKINS and ANNE HOPKINS trading as
HOPPY CONSTRUCTIONS
No. SC 524 of 1990
Number of pages -
4
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Work Accident - Injury to lumbar spine - Aggravation of a pre-existing degenerative spinal condition - No Issue of Principle.

Supreme Court Rules, O61A r.1(b); O38 r.10

D'Ambrosio v Hopkins & Anor (unreported, Supreme Court of the ACT, Master T Connolly, 26 February 1997)

HEARING

CANBERRA, 27 May 1997 (hearing), 20 June 1997 (decision)

20:6:1997

Counsel for the Plaintiff: Mr C Whitelaw

Instructing Solicitors: Elrington Boardman Allport

Counsel for the Defendants: There was no appearance by

the defendants and the matter

proceeded ex parte

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $244,285.12.

2. The defendants pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY

This is a claim for damages for personal injury arising from an accident at work on 8 April 1988 when the plaintiff injured his back while lifting a heavy manhole cover at the site of the Australian Defence Force Academy in Canberra. The writ and statement of claim were issued on 24 August 1990. No defence was entered by the defendant. The matter was listed for hearing before me on 26 February 1997, but I declined to exercise jurisdiction. My reasons for that were separately published. On 27 February 1997 an interlocutory judgment was entered with damages to be assessed. The matter was thus now able to proceed before me as an assessment only, pursuant to O61A r.1(b).

When the matter was called on for hearing there was no appearance by the defendant. A firm of solicitors had attended at a listing of this matter before me on 19 March 1997 and was granted an adjournment on the basis that the defendants were contemplating instructing them to appear in the matter. Counsel for the plaintiff tendered correspondence from his instructing solicitors to that firm. On 4 April 1997 this firm indicated that it would advise if it was retained to appear at the assessment hearing. No such advice has been received, and I was advised by counsel that his solicitors were advised by telephone that there were no instructions to appear. The defendants were called outside the Court, but failed to appear. Order 38 rule 10 provides that

"If, when a trial is called on, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his or her claim, so far as the burden of proof lies upon him or her".

The matter accordingly proceeded by way of assessment in the absence of the defendants.

The plaintiff was born on 26 June 1929 near Naples in Italy. He left school at the age of 14 and worked on his father's farm until his early 20's. In about 1953 he migrated to Venezuela, where he worked in manual jobs, before migrating to Australia in 1960. The plaintiff obtained a number of labouring type jobs in the construction industry, and from 1969 to 1986 was a labourer/supervisor with Canberra Manhole Builders Pty Ltd. From 1986 to 1987 he worked with another contracting firm, and in November 1987 he commenced employment with the present defendants as a manhole builder. He was engaged in the construction activity at the site of the Australian Defence Force Academy. At around 4.30 that afternoon he attempted to lift a concrete sewer lid, about 90 cm in diameter, when he felt pain in his low back at about the belt line. This is the accident the subject of the interlocutory judgment in these proceedings.

The plaintiff said that he had never had back problems before this incident. He went home and rested over the weekend, the accident having occurred on a Friday, and on Monday he attended work to report the matter to his foreman, who took him to Woden Valley Hospital. He was given a hot pack, and given a certificate for two weeks off work. He then attended his general practitioner, Dr Armstrong, who prescribed Naprosan. He has not returned to work since. Dr Armstrong sent him to Dr Newcombe, a neurosurgeon, in October 1988, and he reported that his continuing back pain was due to aggravation of lumbar spondylosis, resulting from the lifting strain at work in April. Dr Newcombe agreed that this rendered him unfit for work, but he concluded his report with the remarks

"If the injury had not occurred then it is likely that he would have needed to retire due to pain due to lumbar spondylosis by the age of 63 years, on the balance of probabilities."

Mr D'Ambrosio has also been examined by Dr Vance, an orthopaedic surgeon. He reported in February 1990 that the plaintiff

"...aggravated pre existing degenerative changes in his lower lumbar spine..."

in the incident, and concluded that

"...he is totally unfit for work and will not again become fit to return to the work of a labourer."

In a later report of February 1992 Dr Vance repeated these views, and concluded that the plaintiff would not return to the workplace. Dr Vance did not express any opinion as to the likelihood of the plaintiff's condition deteriorating without this accident, but he did note that he had been doing this type of work for many years without incident.

A further report form Dr Roebuck, orthopaedic surgeon, of April 1995 concludes that

"Mr D'Ambrosio precipitated symptoms in a pre existing but symptomless lumbar spondylosis on 8 April 1988 while employed as a labourer. This has precipitated symptoms which have prevented him returning to work and making him unfit for his previous occupation or indeed any occupation and it is doubtful if he could perform any useful work because of the marked stiffness of his back and the rapid onset of pain under any exercise."

In 1989 the plaintiff suffered a stroke, and was hospitalised for 8 days, but he says that he has recovered from this and that he would only have had to take a limited time away from his employment were it not for the ongoing back injury. This was referred to in the reports of Dr Vance, and I am satisfied that the back condition has been the factor that has prevented the plaintiff from working since the date of the accident.

The plaintiff gave evidence through an interpreter. He has ongoing pain in his back, which limits his activities about the home and garden. Before the accident he enjoyed hunting and fishing, which he can no longer do. He still gardens, but limits himself to lighter activities. He can drive his car, and assists his wife with the shopping. He continues to take medication (Naprosan), and wears a belt support in the mornings to relieve his back pain.

In relation to general damages I assess the plaintiff on the basis of his documented aggravation of a pre existing degenerative spinal condition, which has resulted in ongoing pain and limitation of movement. I must take into account Dr Newcombe's views that this condition would probably have become painful in any event. While he says that, on the balance of probabilities, it would have become so by the age of 63, this is not a view supported by other orthopaedic reports, and Dr Vance notes in particular that the plaintiff had for many years engaged in heavy work. The plaintiff's evidence was that he had never had back pain before, and this is consistent with his work history. While I am satisfied that the plaintiff's condition would probably have degenerated at some time, I am not satisfied that this would have occurred before he attained the normal retiring age. In relation to general damages, I award the sum of $25,000, of which $20,000 is attributable to past loss, generating interest of $3,840, a total general damages award of $28,840.

The plaintiff's claim in relation to economic loss is based on his loss of earning capacity to the date of normal retirement. I am satisfied, notwithstanding Dr Newcombe's comments referred to above, that this is properly made out for the closed period from the date of the accident to the plaintiff's normal retirement age of 65. The plaintiff had worked his entire working life in manual activities, and had a poor command of the English language. I am satisfied that this injury has prevented him from working, and that there was no real activity open to him other than his accustomed labouring occupation.

Counsel for the plaintiff tendered a calculation of wage loss, based on the appropriate award classification of Construction Worker Group 2 which applies to a manhole builder, which produces a wage loss for the period from the accident to his appropriate retirement date in June 1994 of $143,886.56. He has received workers compensation payments of $56,160, so his interest must be calculated on the difference between these sums, representing his real loss, of $87,726. I accept the calculations of counsel for the plaintiff which shows that this generates an interest to judgment of $53,662.

There is a claim for a Fox v Wood component of $15,474.91, which I award.

Out of pocket expenses, paid by the workers compensation insurer, amount to $1,921.65, which I award.

The plaintiff continues to take medications at a cost of about $2.40 per month at present. I award $500 by way of a discretionary sum to cover future medication.

This amounts to an overall award of $244,285.12, which I consider to be appropriate in all the circumstances.