Giuseppe Gumina v Peter David Williams [1998] ACTSC 166 (13 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident -
Aggravation of previous underlying degenerative condition.

  

  

  
CANBERRA, 18-19 February 1998 (hearing), 13 March 1998 (decision)

   #DATE 13:3:1998

  

   Counsel for the Plaintiff: Mr S Pilkinton

   Instructing Solicitors: Romano & Co Solicitors

   Counsel for the Defendant: Mr F J Purnell SC

   Instructing Solicitors:
Elrington Boardman Allport

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $25,717.00.

   2. Costs be reserved.

  

  

   MASTER T. CONNOLLY

  

   This is a claim for damages for personal injuries arising from a
motor
vehicle accident which occurred at Reid in the Australian Capital Territory on
23 February 1993. The plaintiff, who was and
remains a restaurateur, was
driving from premises in the city to another restaurant in which he had an
interest in Kingston. At the
intersection of Coranderrk Street and Parkes Way
at Reid there is a major roundabout, and the plaintiff was stationary at this
roundabout
when he was struck from behind by the defendant. Liability was
admitted on the pleadings, and the matter proceeded before me by way
of an
assessment only.

  

   The plaintiff was born in March 1952, and so was 40 at the time of the
accident, and 45 at trial.
He was born and educated in Italy, where he
qualified and practised as an architect. He came to live in Australia in 1986,
and since
his arrival in Canberra in that year he has been involved in the
restaurant trade. He originally purchased an existing business in
Kingston,
and changed its name and image. He has subsequently bought and sold a number
of businesses, and run restaurants with a
range of partners. At the date of
trial he continued to be involved in the running of La Capanna Pizzeria in
Kingston with a partner.

  

   The medical evidence in this matter tends to agree on some basic issues.
That is, that the plaintiff presently suffers from
a degenerative back
condition. The radiological evidence establishes that this degenerative
condition has been present for some time.
The plaintiff's case is that, apart
from one isolated instance of back pain on lifting some years ago, he was
asymptomatic, and so
the motor vehicle accident should be seen as responsible
for his present condition which, it is argued, has had a marked impact on
the
plaintiff's ability to engage in his business interests.

  

   The defendant's case is that the plaintiff is presently suffering,
to the
extent that he does suffer from a disability, from the effects of a previously
existing and previously symptomatic degenerative
condition. The defendant
argues that the motor vehicle accident would have caused only a short term
aggravation of a previously existing
and symptomatic condition, and that any
damages ought accordingly be limited in scope.

  

   The accident occurred at around 3.00
in the afternoon. The plaintiff said
that after the impact he felt pain in the lower part of his back immediately,
as well as some
minor pain in his neck. He was able to drive his vehicle away
from the accident scene. In the evening the plaintiff said that he
went to
Woden Hospital, but he is unable to say at what time this occurred. He said
that he waited for a couple of hours at the hospital,
but they were very busy,
so he went home before receiving any medical attention. The next day he said
that the pain increased, and
so he went to see his general practitioner, Dr
Lee, who sent the plaintiff off for an x-ray and physiotherapy.

  

   The x-rays
taken on 24 February revealed lumbar and thoracic scoliosis, as
well as the presence of osteophytes in the lumbar spine. A medico
legal report
dated 17 July 1995 tendered by the plaintiff from Dr Ashman, orthopaedic
surgeon, refers to these x-rays and states

  

  

   "My diagnosis in this man was a soft tissue aggravation of a pre existing
degenerative intervertebral disc in the lumbar
spine as a result of a motor
vehicle accident in February 1993. My prognosis for him is that he will
continue to experience low back
pain related to physical activity in the years
to come and the effects of the aggravation of his condition caused by the
motor vehicle
accident may last for up to five years."

   Dr Ashman recorded that

  

  

   "He denied any previous history of low back pain
prior to the accident in
February 1993."

   Dr Ashman then expressed the view that the plaintiff was fit for a full
time light sedentary
occupation provided that he was not exposed to lifting
more than 10 kg, repetitive bending or being unable to change his position
or
posture for longer than 30 minutes.

  

   In subsequent reports of January 1996 and 5 February 1998 Dr Ashman
maintained his
opinion on the plaintiff's ability to work, but expressed the
view that, given the ongoing complaints, the plaintiff's condition

  

  

   "...comprises a degenerative process at the lumbo sacral junction which has
been permanently aggravated by the motor
vehicle accident which occurred in
February 1993."

   The defendant relied on the evidence of Dr Scott Findlay, a consultant
orthopaedic
surgeon. In his report of 5 October 1995 he expressed the view
that the plaintiff

  

  

   "...probably had a mild soft tissue
injury from which he has recovered but
he is left with the residual basis of generalised spondylosis of the spine
extending from
the upper cervical vertebrae right down to his lower
vertebrae."

   He concluded

  

  

   "I believe he is fit for all work and
any limitation would be the result of
a progressive disease from which he is suffering."

   Dr Scott Findlay essentially maintained
this opinion in subsequent reports
of March 1997 and January 1998. In his report of 21 January 1998 he said

  

  

   "I note throughout
that Mr Gumina has denied previous back pain in his
interview with Dr Ashman. However, several days after his accident on 26
February
1993 he had some x-rays which showed generalised spondylitis
throughout the areas he now complains of with pain. He has got osteophytes
and
lipping and narrowed discs demonstrable in the cervical and lumbar region with
the generalised spondylitis throughout the whole
area."

   In cross examination Dr Scott Findlay agreed that there are many people who
have identical radiological signs to the plaintiff
but who suffer no pain, and
that trauma can cause the onset of pain in these circumstances. He was asked
to assume no prior pain,
the x-rays as they are, and the trauma bringing on
the pain. In those circumstances, he conceded that

  

  

   "I suppose you
could infer that the accident ....would probably cause it,
yes".

   These seem to me to be proper concessions from a medical expert,
and would
be sufficient to justify the finding, which is commonly made in these types of
cases, that a plaintiff's disability arising
from a previously asymptomatic
degenerative condition is accident related when the accident can be
established as the likely trigger
for the symptoms. This is of course the
plaintiff's case.

  

   In re examination, however, Dr Scott Finlay was taken to subpoenaed
material which indicates a prior history of back pain. The clinical notes from
the practice of Mr Weston, chiropractor, were put
to the doctor, and were
tendered. In a note dated 8 June 1989 Dr Scott Finlay took the notes to read

  

  

   "Low back pain,
one week every year, has two times",

   and he was unable to read the rest of the note. My best interpretation of
the handwritten
note is

  

  

   "Low back 1 week every year has 2 x every 4 years".

   Mr Weston was not called to interpret his notes, but
whatever version is
correct, this note was taken by Dr Scott Finlay to indicate that the plaintiff
had in fact had prior ongoing
back pain, consistent with the observable
radiological evidence of a degenerative back condition.

  

   It is of course for the
plaintiff to establish that, on the balance of
probabilities, his previously asymptomatic but radiologically marked
degenerative
back condition became symptomatic due to this accident and not by
the mere passage of time.

  

   Dr Ashman, who supported the
link, based his reasoning on his history of no
prior history of low back pain. On this assumption, Dr Scott Findlay was
prepared
to accept the hypothesis. However, Dr Ashman's history was not
consistent with the plaintiff's evidence in chief, where he acknowledged
one
occasion where he had experienced low back pain. He said that it occurred when
he was lifting some boxes and twisted. He maintained
that this was only one
incident. This is of course not consistent with a record of his complaint of
annual recurrence of low back
pain - a complaint that Dr Scott Findlay said
would be consistent with the marked radiological changes in the plaintiff
back. In
cross examination Dr Ashman said

  

  

   "...my opinion based on the fact that he was not having any pain until
after the accident
......his underlying condition would not have developed
that quickly and if it hadn't been for the accident."

   I am not satisfied
that the plaintiff has in fact had the history given to
doctors and assumed as the basis for the diagnosis that links his present
condition to the motor vehicle accident. Accordingly, I find that the
plaintiff experienced soft tissue injuries in the accident
which provided an
aggravation of a previously symptomatic condition. In reaching this conclusion
it follows that I favour the views
of Dr Scott Finlay over those of Dr Ashman,
because Dr Ashman acknowledged that his link depended on the prior history of
no back
pain. I note also that Dr Scott Finlay's view is more consistent with
the report of Dr Lee of 1 September 1993 that the plaintiff
was then

  

  

   "...fit to resume normal work".

   This is consistent with the motor vehicle accident aggravating an
underlying
condition, but that aggravation passing over a reasonable period of
time. It would follow from these findings that further episodes
of back pain
can not, in my view, be linked to the motor vehicle accident to the requisite
standard of proof.

  

   In any event
I would not find that the plaintiff was substantially
incapacitated by his condition. He has said that he is unable to work in the
full range of activities that he formerly enjoyed. His own doctor in cross
examination agreed that he would be fit for full time
work . He said that the
plaintiff should not be doing heavy labouring sort of work or full time chef
work, but he conceded that he
would be able to make pizzas, which he described
as light work. He said that

  

  

   "...he is fit for light sedentary clerical
work or basically any work that
doesn't involve lifting more than 5 kilograms, repetitive bending or having to
stand or sit for longer
than 30 minutes without a break. But pizza making
presumably would fit in, if he was given that restriction."

   Dr Ashman acknowledged
that his assessment was made without the plaintiff
telling him, as emerged from the evidence, that he has worked for periods
since
the accident as a general chef making pasta, chicken and veal dishes for
nine hours per day. He said that this would indicate a greater
capacity than
he had been led to believe.

  

   Dr Ashman said that the plaintiff would be able to work full time as a
draftsman.
The plaintiff had said that he could not perform this function. He
had been a qualified architect in Italy, and while he had embarked
on a TAFE
course to obtain Australian qualifications, he had given this away because of
the pressure of his restaurant businesses.
Dr Ashman also acknowledged that
the plaintiff could ride a bike on occasions, and would be capable of running
a restaurant, insofar
as that involved ordering fruit and vegetables, hiring
and firing staff, doing accounts, and performing the "classic maitre 'd
function".
These were in fact a summary of the type of functions that the
plaintiff had said he had been engaged in before and after the 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 case, I find that the plaintiff suffered soft tissue injuries and
aggravation to a pre existing symptomatic degenerative
lower back condition of
spondylosis in the motor vehicle accident of February 1993. I note that his
general practitioner assessed
him as fit to resume normal work in September
1993. I note that he has continued to work in his various restaurants, and
indeed opened
and operated and then sold another restaurant in the period
1995-6. He had sold his interest in one restaurant in 1994, but maintains
his
interest in, and active involvement in, La Cabanna. To the extent that he is
presently, and at any time since late 1993, inconvenienced
by low back pain, I
am not satisfied that this is attributable to the accident, but rather to the
underlying condition. In respect
of general damages, I award the sum of
$12,000, all of this being attributable to past loss, which generates interest
of $1,214,
making a total award for general damages of $13,214.

  

   Economic loss reports were prepared and presented in evidence by
accountants
for both the plaintiff and the defendant. In each case, they
assumed that any variation between the plaintiff's taxable income before
and
after the accident was attributable to an accident related disability. I am
not satisfied that this assumption has been established,
and so to this extent
the reports are of limited relevance. While the basic methodology was the same
- to look at pre accident and
post accident income, certain assumptions were
made in each report which would, even if I had been satisfied that the
plaintiff's
present incapacity, to the extent that it restricts his income
capacity were accident related, have led me to reject using either
report as a
strict arithmetic guide to to the plaintiff's earning loss.

  

   I am not satisfied that the plaintiff has established
anything other than a
very modest buffer for loss of earning capacity in the years following the
motor vehicle accident. I award
the sum of $10,000 for past economic loss
inclusive of interest. I am not satisfied that any ongoing loss is
established, as I am
not satisfied that the motor vehicle accident continues
to have any part to play in the plaintiff's ongoing symptoms of an underlying
degenerative disease.

  

   Out of pocket expenses were agreed in the sum of $2,503, which I award.

  

   As I have found that
the plaintiff has suffered an aggravation of his pre
existing condition which has now passed, I do not make any award in respect
of
future out of pocket expenses.

  

   This amounts to an award of $25,717. I will hear the parties on the
question of costs.