Riad Chaaban v An Huu Hoang [1997] ACTSC 49 (4 July 1997)

SUPREME COURT OF THE ACT

RIAD CHAABAN v. AN HUU HOANG
No. SC 699 of 1995
Number of pages -
7
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 Neck and Back - Nuisance Value Symptoms - Whether Pre Existing Glenohumeral Laxity Rendered Symptomatic as a Result of the Accident - Causal Link - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

HEARING

CANBERRA, 23 June 1997 (hearing), 4 July 1997 (decision)

4:7:1997

Counsel for the Plaintiff: Mr G Stretton

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the Defendant: Mr P J O'Connor

Instructing Solicitors: McCulloch & Buggy

Agents: Allen Allen & Hemsley

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $23,255.17.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 4 August 1993 when the plaintiff's motor vehicle was struck from behind by a motor vehicle driven by the defendant as he was slowing down for a red light at the intersection of Coulter Drive and Southern Cross Drive in Belconnen in the Australian Capital Territory. Liability was not in issue in the proceedings, although not formally conceded on the pleadings, and I have no difficulty in finding that the defendant is liable for the consequences of the accident.

The plaintiff claims that, as a result of the accident, he has suffered injuries to his back, neck and shoulder, and that as a consequence he was forced to withdraw from his studies in Civil Engineering at TAFE, and that he has an ongoing inability to engage in heavy work involving lifting. In July 1995 the plaintiff was involved in a second motor vehicle accident when he was struck by a vehicle changing lanes in Northbourne Avenue in Civic. The plaintiff claims that this accident aggravated the injuries sustained in the first accident. The matters were listed for hearing together, with evidence in each case to be evidence in the other. When this matter opened counsel indicated that the second matter had been settled, with damages agreed at $10,000 only, plus costs.

The plaintiff was born in Lebanon in September 1991. He was from a large family, and emigrated to Australia with his family in 1984. He completed his schooling to Year 11 in Sydney in 1988, and in 1989 moved to Canberra with his brother. At this time he found employment as a bus cleaner working for a contractor in cleaning interstate passenger coaches. In 1991 he undertook and completed his Year 12 studies at Copeland College. During this time he had part time jobs in take away food stores.

The plaintiff was a keen schoolboy Rugby League player. He represented Copeland College, and in 1992 that team distinguished itself in the Commonwealth Bank Cup, which is recognised as the pre-eminent national schoolboy Rugby League competition. The College made the national quarter finals, and the plaintiff tendered some cuttings from the Canberra Times featuring his photograph and some match reports. The plaintiff continued his interest in Rugby League playing for teams in the Molonglo Shield and Canberra Cup competitions after he left school.

He enrolled in a civil engineering course at TAFE in 1992, and continued playing his football and working out in a gym. He withdrew from the course that year, as he says he was "playing around" and not concentrating on his studies. He re enrolled in 1993. The plaintiff tendered a photograph of himself taken at a gym session before the accident, which showed that he had a very strong muscle development. He said in his evidence in chief that he had been very restricted in his ability to engage in gym work since the accident, but numerous doctors have commented on his very well developed physique. His counsel requested that he remove his shirt in my chambers in the presence of counsel for the parties to show that he was not as fit now as in the photograph taken in 1993.

The accident involved a collision of some force. The plaintiff says that his seat back snapped. He was stunned, but not unconscious, and found himself lying back and looking at his car roof. He got out and was sitting by the side of the road. Ambulance officers then took him to Calvary Hospital. He complained of pain in the neck, head and shoulders, and in the low back, as well as in his hands. He was x-rayed, provided with a soft collar, and advised to attend for physiotherapy and then allowed to leave.

He attended his general practitioner, Dr Guirguis, and complained of neck pains and reduced mobility, and was prescribed analgesic and physiotherapy. He attended Mr Rumore's physiotherapy practice through to November 1993.

Shortly after the accident, on 9 August, he was recalled to Calvary Hospital because the original x-ray had been seen to disclose an undisplaced fracture at C5 level. Further x-rays were taken, which revealed no fracture, and the attending doctor at the time recorded the fracture as stable. Further investigations over the years involving more sophisticated imaging have not found evidence that there was ever a fracture at this point. The original x-ray which raised the question of a fracture is no longer available. In a report to the defendant in August 1996 Dr Stubbs, an orthopaedic surgeon, said

"I have not seen the initial films, they seem to have been lost, but I have seen films taken five days after and there is no trace of a fracture on these films. The range of motion is excellent and there is no soft tissue swelling, the bone is all intact. It is not possible for a fracture to heal in five days, it (sic) think a much more probable explanation concerns the fail safe system of reporting x-rays at public hospitals. At nights and weekends, x-rays taken are often reviewed only by relatively junior medical staff. Later, in the case of a weekend, perhaps two or three days later the films are reviewed by a radiologist, someone who specialises in interpreting x-rays. The radiologists examine the films with the intention of finding any problem areas that may have been missed by the Emergency Staff. In other words they look at the films to make the most of any possible change on the x-ray so that the patient can be recalled and reviewed by an appropriate specialist if necessary. The intention is to let no injury slip through the Accident and Emergency Service. As such artefactual markings on the films may generate a request for patient review as the mark may be interpreted as a fracture. The radiologist of course has not seen the patient, nor does he have any adequate history, he can only work on the films. The marks are often quite questionable, things that may be dismissed in the light of differing clinical findings or alternatively merely require an extra x-ray view at the time to clarify the issue. I would estimate that 3 out of every 4 requests for re-x-ray are false positives, that is there is nothing demonstrated on following examination, just a mark on the original x-rays. I would put Mr Chaaban in this category."

Dr Stubbs diagnosed a soft tissue injury to his neck, which resolved within three months, leaving the plaintiff fully fit. This was also the view of Dr Nield, an orthopaedic surgeon who examined the plaintiff for the defendant in May 1995, and Dr Kitchin, an orthopaedic surgeon who examined the plaintiff for the defendant in July 1996.

Dr Keiller, an orthopaedic surgeon, examined the plaintiff in September 1996 in respect of both accidents, and reported to the defendant in the second matter. His report was tendered by the plaintiff. He could find full movement in the neck and some subjective tenderness in the spine, with no involuntary muscle spasm or other objective abnormal signs to suggest disc damage. He concluded that the plaintiff had

"nuisance value symptoms only in the spine",

which he related to the August 1993 motor vehicle accident.

Dr Keiller said that he did find definite abnormal findings in the plaintiff's right shoulder. He concluded

"...without the shoulder injury, he would be fit to study and work to the pre accident level, and there would be no danger to his future employment."

The shoulder accident has been investigated by Dr Dalton, a rehabilitation and sports medicine specialist at the North Sydney Orthopaedic and Sports Medicine Centre, who reported to the plaintiff's solicitors in February and April 1995. Mr Chaaban had been referred to Dr Dalton for treatment and a medico legal report by his general practitioner.

Dr Dalton confirmed the views of other doctors that the plaintiff suffered soft tissue injuries to his back and neck in the accident, which were resolving. He said

"In my opinion he is more likely to have continuing problems with his right shoulder particularly with sporting or physical pursuits. I could find nothing on examination to suggest that his injuries have affected his capacity for study, although in the early period following the accident his neck pain may have been of sufficient severity to limit his capacity for desk work and sustained neck flexion."

Dr Dalton referred to a CT arthrogram of the plaintiff's right shoulder taken in April 1994 which

"...reportedly showed disruption to the anterosuperior capsulolabral complex with separation of the anterosuperior glenoid margin".

He concluded from this and his own examinations that the plaintiff

"...presented with the typical symptoms and clinical findings of occult anterior glenohumeral instability with radiological evidence of a labral tear (or SLAP lesion)."

In the first report Dr Dalton said

"His history of right shoulder pain does not suggest that he sustained direct trauma to the right shoulder at the time of the accident. The delay in onset of symptoms suggests that it is far more likely that this man had pre existing glenohumeral laxity that may or may not have been rendered symptomatic as a result of that injury. It is possible that the injury to his neck and referred pain in the shoulder did precipitate symptoms of that type, but it is unlikely that the abnormality seen on the CT arthrogram can be directly attributed to the accident given the nature of his symptoms. Also, although he did not give a history of previous shoulder problems he did report having 4-5 episodes in which he felt as if his arm had gone 'dead' whilst sprinting at football training prior to the accident. This history is indicative of pre existing glenohumeral instability."

Following this report, which did not establish a link between the plaintiff's objective evidence of disabling injury to the shoulder and the accident, the plaintiff's solicitors requested a further report, and provided Dr Dalton with material from Dr Guirguis. It is in my opinion appropriate to set this out at length.

"I have read the report from Dr Guirguis in which he comments on Mr Chaaban's symptoms following the accident. I note that this man did not start to complain of right shoulder pain to Dr Guirguis until early 1994, i.e. some months after the motor vehicle accident. I note Dr Guirguis' point that he did complain of some right trapezius and arm pain soon after the accident. Nevertheless there is nothing in this information which would suggest that he had sustained direct trauma to the right shoulder at the time of the accident and I see no reason to change my previously expressed opinion that this man had pre existing glenohumeral laxity which may or may not have been rendered symptomatic as a result of that injury. Whilst I would accept that the injury may have rendered his shoulder symptomatic, there are signs in both his history and radiological findings to indicate that this man had pre existing glenohumeral laxity and therefore a potential for instability. It is possible that some of the effects of that aggravation have not yet ceased but I do not believe that this man's continuing shoulder problems in the future can be directly attributed to the accident on the available information."

I accept this opinion.

The plaintiff proved, on cross examination, not to have been a reliable historian. He claimed the shoulder pain started within one month of the accident, and later accepted that it did not start until early 1994 (Transcript p34). Indeed, he acknowledged many inconsistencies in his evidence in chief, and conceded that, in forming conclusions in this case, the court would be advised to rely on documented material rather than to rely on his recollection (Transcript p34 line 30). I cannot be satisfied about many aspects of what the plaintiff has claimed. He says that he was forced to abandon his studies in 1993 because of his neck and back pain, a claim which is in conflict with Dr Dalton's view. He claims that he attempted the course again in 1994, but ceased study that year because of his pain. There are references in the medical materials up to 1996 of the plaintiff continuing to claim to be studying.

He claims that he obtained employment in January 1995 as a carpet cleaner and delivery driver, but was forced to give these jobs away because of his neck pain. But he conceded that he left employment in 1996 to resume his studies (Transcript p41). No evidence was presented by the plaintiff by way of academic records in relation to his studies at TAFE.

He said that he had not been able to resume gym training, yet many doctors have commented on his strong physique. I am satisfied from the examination in chambers that he still presents as a man with very strongly developed muscles. He was confronted with a letter from Ms Richards, a dietician, to his general practitioner in March 1995 which referred to a consultation where the plaintiff sought advice on losing body fat while maintaining maximum muscle mass. It continued

"We have discussed as suitable plan - more food than he usually eats on a diet! Long term I hope to convince him that excessive food intake between competitions is not desirable."

The plaintiff had denied that he had ever contemplated body building competitions, but I found his explanation for this letter unsatisfactory.

He was confronted with a letter from a specialist gastroenterologist to his general practitioner written in June 1996 relating to an unrelated complaint. In this letter he gave a history of

"He is a student studying Civil Engineering. He is quite active partaking in wrestling, cycling, walking and body building."

I was not satisfied with the plaintiff's attempts to dismiss this letter.

The plaintiff also acknowledged that in early 1994 he had been charged and convicted of two offences, use and supply cannabis and assault. No reference had been made to this in his evidence in chief, although he had referred to use of cannabis to reduce claimed back pain, and said that in 1996 he had followed his general practitioner's advice to cease use of cannabis.

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 case, I find that the plaintiff sustained soft tissue injuries to his neck and back as a result of the motor vehicle accident of August 1994. I am not satisfied that the plaintiff suffered injury to his shoulder, other than minor soft tissue injury. I accept the views of Dr Dalton in relation to the more serious shoulder condition. I note that the plaintiff contends that Dr Dalton had an incorrect history in relation to the incidents of his arm going to sleep, which he says occurred after the accident, although this does not seem to have been addressed in the second report, written after the plaintiff's solicitors queried the first report. I do not accept the plaintiff's claim in this respect.

I am not satisfied that the soft tissue injuries to his neck and back prevented him from undertaking his studies at the TAFE, which he has variously said ended in 1993 and finally in 1994, and continued in 1995 and 1996. Nor am I satisfied that his accident related injuries have prevented him from continuing to engage in part time or full time work. The plaintiff acknowledged in cross examination that he left his job as a fruit delivery driver in February 1996 to resume his studies. In re-examination he claimed that while he had the intention to resume his studies when he left his employment in February 1996, he has not done so. This is yet another version of the plaintiff's study history which is contrary to his evidence in chief. The plaintiff acknowledged that he could do anything, but said he would suffer pain in lifting heavy objects. Specialist opinion indicates that the only presently disabling condition is his shoulder, which I have found to be unrelated to the accident.

In respect of general damages, I assess the plaintiff in relation to soft tissue injuries to his back and neck. There were also some painful injuries to his hands, by way of glass fragments, which resolved quickly. I accept that the soft tissue injuries to his neck and back were painful for a period of some months, but I accept the view of the specialist evidence referred to above that these were resolving so that by 1994 his major complaint was his shoulder injury. I accept that the soft tissue injuries were no doubt aggravated for a time by the 1995 accident.

I do not accept that the soft tissue injuries caused the plaintiff to discontinue his studies in 1993 or in any year thereafter. Indeed, on the evidence before me the question of the plaintiff's ongoing studies, if any, is unresolved. I am not satisfied that the injuries attributable to the accident prevented him from taking up or continuing part time employment or full time employment. He expressly acknowledged that he could now work in a service station or shop. I find that while the plaintiff has not taken up Rugby League since the accident, the prime cause of his disability in this respect is, in the opinion of Dr Dalton, which I accept, his shoulder injury which I find is not related to the accident. I do not accept the plaintiff's claim that his recreational activities have been otherwise curtailed. I find, contrary to the plaintiff's assertion, that he has been able to continue with his gym activities, and has told Dr Kaushik that in mid 1996 he was involved in wrestling, cycling and body building.

I find that at present any pain which the plaintiff continues to suffer in relation to his neck and back can be properly described as nuisance value symptoms, in the term used by Dr Keiller in the report tendered by the plaintiff. In the light of these findings I award general damages only in a modest range for soft tissue injuries which have broadly resolved, and which have not greatly disrupted the plaintiff's lifestyle. I award general damages in the sum of $17,000, with $15,000 being for past loss, generating interest of $1,176 a total award for general damages of $18,176.

I am not satisfied on the evidence before me that the plaintiff has suffered any economic loss as a result of this accident. I base this finding on the medical evidence before me from specialist doctors, which does not satisfy me, to the relevant standard, that the plaintiff has been unable to undertake employment as a result of his soft tissue injuries. I remain unsatisfied as to what exactly the plaintiff has been doing in the years since the accident. He claims to have withdrawn from studies entirely in 1994 for the purposes of this hearing, but he has told various doctors that he was still a student as late as 1996. His periods of employment, which he says had to cease because of his injuries, do coincide with university and TAFE holidays, and he conceded that he had said that he left his employment in 1996 in order to return to his studies, although he later said that he did not in fact recommence studies in 1996. A doctor has taken a history in 1996 of him still being a student in June of that year. What impact his convictions for assault and use and supply cannabis may have had on his studies or employment in 1994, I do not know. The plaintiff did not give evidence of what his activities were after he claims to have left his studies in 1994, until October 1996 when he says that he registered for work with the Commonwealth Employment Service. A letter from his physiotherapist Mr Rumore to his general practitioner of 22 April 1994 was tendered by the defendant. This said

"I have had a conference with Riad today at his request. I have indicated to him that our practice policy is a formal arrangement of an appointment for treatment. He indicated that he is not available to organise appointments, so following a long discussion I have established with him a procedure of attendance, on an as needs basis..."

The plaintiff was unable to explain why he was so busy at this time that he could not make appointments. I make no award for past economic loss.

The plaintiff claims a buffer by way of future economic loss. I am not satisfied from the specialist medical evidence that this is established. Drs Robson and Keiller, whose reports were both tendered as part of the plaintiff's case, put the plaintiff's ongoing problems down to the shoulder injury and not the neck and back. The plaintiff acknowledged in cross examination that he could do any work, although he said he would suffer pain. Dr Keiller has described this as nuisance value symptoms. I am not convinced that he left his previous part time employment as a delivery driver by reason of pain, given his concession that he had said that he left to return to studies. Moreover, I do not accept the plaintiff's original contention that he has not engaged in weight lifting since the accident. I make no award for future economic loss.

Out of pocket expenses have been claimed totalling $5,079.17. While some of these relate to investigations of the shoulder injury, which I have found not to be related to the accident, I feel that it is appropriate that these investigations, which have in fact been paid, be borne by the defendant, although of course no future treatment is attributable to the accident.

I make no award for future out of pocket expenses.

This amounts to an award of $23,255.17, which I award with costs.