Danilo Stankovic v Yasmin Norma Walsh [1998] ACTSC 206 (1 May 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident -Soft
tissue injury to neck and back - Aggravation of pre existing cervical
and
lumbar spondylosis - Chronic pain syndrome - No issue of principle.

  

  

   CANBERRA, 8-10 December 1997 and 17 April 1998
(hearing), 1 May 1998
(decision)

   #DATE 1:5:1998

  

   Counsel for the Plaintiff: Mr C Barry QC & Mr J Pappas

   Instructing
Solicitors: Pappas J - Attorney

  

   Counsel for the Defendant: Mr F G Parker

   Instructing Solicitors: Deacons Graham &
James

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $280,513.85.

   2. The defendant
pay the plaintiff's costs.

  

  

   MASTER T. CONNOLLY

  

   This is a claim for damages for personal injuries arising from
a motor
vehicle accident which occurred on 24 August 1995. The plaintiff was driving
from his home in Queanbeyan towards Canberra
on Canberra Avenue, the major
road connecting Canberra with Queanbeyan. As he was in the vicinity of the
Navy radio station HMAS
Harman he says that he observed a vehicle stationary
at the give way sign at the exit point from HMAS Harman to Canberra Avenue.
This vehicle, driven by the defendant, in fact proceeded onto Canberra Avenue
into the plaintiff's path, and the vehicles collided.
Liability was admitted
at the hearing, and the matter proceeded by way of assessment only.

  

   The plaintiff was born on 31 May
1943 in Yugoslavia, and so is now 54 years
of age. He was educated to the equivalent of year 10 standard in Yugoslavia,
and commenced
an apprenticeship in 1960, qualifying and then obtaining
employment as an electrical fitter. The plaintiff married in 1962, and he
and
his wife had two daughters, Vera born in 1964 and Vesna, born in 1966. Both
children now live overseas.

  

   The plaintiff
had a number of friends who had emigrated to Australia, and
he said that he had decided to come to Australia, like so many migrants,
"for
better life". He arrived with his family in 1970, and after an initial period
at Bonegilla migrant camp settled in Sydney. He
found work in his trade with a
lift maintenance company. After two years or so the family returned to
Yugoslavia for a holiday for
some months, and then returned to Australia. The
plaintiff resumed work with the lift maintenance company, and he also found a
second
job with a lawnmower manufacturer. His wife had employment in this
factory, and the plaintiff was able to obtain a position on the
evening shift,
from 7 to 11 pm for five days a week which he was able to work after his main
job finished every day.

  

   In 1975
the lawnmower company closed the factory, and the plaintiff and his
wife lost their jobs. The plaintiff had friends who lived in
the Canberra
district, and they spoke well of the prospects here, so the family moved to
Canberra. The plaintiff found work in his
trade and his wife obtained a
position with a Hostel, and later began working at the Woden Hospital in the
catering area. After a
couple of years work ran out in the plaintiff's
position, and he obtained a job at Woden Hospital working as a kitchenhand.

  

   The plaintiff continued with this work until 1986, when the family again
returned to Yugoslavia to spend time with the plaintiff's
wife's parents.

  

   The plaintiff worked in his trade in Yugoslavia, and also did some work on
a family farm, as well as helping
build a house for one daughter, who settled
back in the area. By 1990 troubles were emerging, and the plaintiff said that
he returned
to Australia to avoid the war. He was unemployed for a short time,
but he went back to the hospital kitchen, and was advised to write
and re
apply for his old job. A general practitioner examined him and certified him
fit for his duties as a kitchen hand, but did
not take x-rays of his cervical
or lumbar spine. In October 1991 he was re employed as a kitchen hand at Woden
Valley Hospital. His
wife also managed to obtain employment back with the
hospital, and they were both working there up to the accident the subject of
this claim.

  

   The plaintiff's employment records show that he had some time off duty for
a condition of dermatitis, which was
accepted as a work related disability, in
1993. In March of 1995 he had an accident at work and bumped into a trolley,
and had some
time off for cracked ribs.

  

   Shortly before the motor vehicle accident the plaintiff had a dispute with
his supervisor at the
hospital over deliveries of meals. He described this as
a misunderstanding, and accepted his counsel's summary as

  

  

   "...you
had an argument with somebody at work and you got very upset".

   The plaintiff blacked out at work, and was admitted for tests
to his heart,
which he said did not reveal any abnormalities. The plaintiff then had some
rostered days off, and in fact had not
returned to work between this incident
and the accident. It was put to the plaintiff that one of the reasons he had
not been back
to work was that he was still unhappy with this supervisor. He
denied this, and said that this supervisor was now his friend again.
The
supervisor was not called in evidence, and I do not consider that this matter
is relevant to the plaintiff's claim.

  

   The
plaintiff was driving his wife to Fyshwick on the day of the accident
to go shopping. The plaintiff says that he was driving at about
75 kilometres
an hour at the time, which is within the speed limit for that area. He
observed the defendant stationary and apparently
observing him, and then said

  

  

   "...as soon as I come very, very close she just come forward and I press my
brake."

  
He estimated that he was doing about 75 kph at the time of impact. He felt
immediate pain in his neck and back, and had difficulty
breathing, and also
had pain between his shoulders. He was given oxygen by an ambulance crew, and
put in a soft collar and taken
to Queanbeyan Hospital, where he was examined
and then allowed to return home. He attended his general practitioner the next
day,
who prescribed analgesics and physiotherapy, and advised rest. Dr
Niewiadomski referred him for x-rays, which showed small pre existing
degenerative changes, and a CT which showed in his view a disc protrusion at
L5 S1 with a possible right S1 irritation. The general
practitioner, in his
report of 30 November 1995, said that this pathology needed the opinion of a
neurosurgeon. This report, from
his treating general practitioner, records
that the plaintiff said that he had never felt any pain although he worked
hard as a kitchenhand,
but that he now presented with pain in his neck and
back and headaches, as well as shoulder pain.

  

   Following his general practitioner's
advice the plaintiff consulted Dr
Newcombe, a specialist neurosurgeon, in early 1996, who examined x-rays and
required an MRI examination.
In his report of 31 May 1996 Dr Newcombe said
that the plaintiff complained of neck, low back and shoulder pain. He said
that

 


  

   "...examination showed some stiffness of neck movement. Left shoulder
movements were reduced in range, especially abduction.
There were no other
signs."

   Dr Newcombe expressed the view that x-rays of the cervical and lumbar spine
and shoulder showed degenerative
changes. He said that the cervical x-ray
showed reduction in the C6-7 intervertebral disc space, with encroachment on
the right at
that level. The MRI at this level revealed

  

  

   "...that at the C4-5 and C5-6 levels there were broad based posterior disc
bulges but no definite focal disc protrusion. At the C6-7 level there was a
larger broad based disc bulge."

   Dr Newcombe's conclusion
in his report was that

  

  

   "It is my opinion that the injury on 24.8.95 included aggravation of
cervical spondylosis, aggravation
of lumbar spondylosis with L5-S1 disc
protrusion and aggravation of degenerative change of the left
acromio-clavicular joint at the
shoulder."

   He concluded

  

  

   "In summary, he continues to have pain and disability following the injury.
He is not able
to work at this time. He remains under review. His condition is
not yet stable and it is too early to define the long term prognosis."

   The plaintiff also followed his general practitioner's advice in relation
to physiotherapy, but said that he was feeling worse
after this treatment, and
he discontinued it in 1996. In May of 1996 the plaintiff and his wife returned
to Yugoslavia for three
or four months. He had planned this holiday for some
time, and had arranged for the period of leave without pay before his
accident.
He said that he asked to cancel this, but this was refused, so he
undertook his holiday, and his sick pay was suspended for this
period of leave
without pay. He had some massage in Yugoslavia, and also started to take a
form of pain relief medication which he
obtained from Yugoslavia in liquid
form. He continues to obtain supplies of this substance through friends, and
to take this medication,
which was never properly identified.

  

   The plaintiff has been examined by a number of doctors for the purposes of
medico legal
advice. Dr Keiller reported in March 1997 that

  

  

   "His degenerative changes were aggravated by the incident, and probably
played some part in the disc herniation at L5-S1. He is permanently unfit for
heavy work to pre accident level."

   Dr Keiller said
that he found the plaintiff lacking motivation, and that he
would not consider him to be stable in a medico legal context until some
rehabilitation advice had been obtained.

  

   In a further report of 15 November 1997 Dr Keiller said

  

  

   "Given the pre
accident level of such changes on x-ray, and the stress of
his work for a further eleven of (sic) years, it is possible, but not
certain,
that he would develop some symptoms spontaneously even if he had not been
injured. However, such symptoms could very well
be uncomfortable, rather than
disabling, and might very well allow him to retire at 65 years. The accident
has deprived him of the
chance of remaining symptom free for longer, or even
indefinitely. There is also clinical and x-ray evidence that the accident
caused
structural damage to a disc or discs, as well as symptomatic
aggravation. Genuine symptoms continue. They will continue indefinitely.
They
are directly due to the accident. The accident was the trigger for symptoms in
the degenerating segments. It also caused some
added structural damage. On the
balance of probabilities, if he had not been injured, he would have remained
symptom free, or relatively
so, until normal retirement age; and possibly for
his natural life span."

   The plaintiff was examined by Dr Scott, an occupational
physician, who
reported to his solicitors on 28 February 1997. He expressed the view that the
plaintiff

  

  

   "...sustained
aggravation and acceleration of his pre existent cervical
spondylosis, lumbar spondylosis with intervertebral disc protrusion, and
degenerative change in his left acromioclavicular joint. In my opinion this
aggravation and acceleration will be progressive. I would
advise him to
undertake physiotherapy and/or supervised exercises by an exercise
physiologist. Such aggressive activities could be
expected to slow down the
aggravation and acceleration of his pre existent, but apparently asymptomatic
conditions."

   Dr Scott
was of the view that at the time of examination the plaintiff was
not fit to return to his pre accident employment.

  

   The plaintiff
was examined by Dr Danta in May 1997, who concluded that he
has sustained soft tissue injuries to the spine resulting in a chronic
pain
syndrome and chronic disability disorder. He noted that the plaintiff had not
come to terms with his symptoms, and suggested
counselling.

  

   Mr Stankovic was examined by Mr Nomchong, a clinical psychologist, in April
1997. In his report, dated (incorrectly)
7 March 1997 he took a history of
periods of anxiety and irritability, depression and poor concentration
following the accident,
as well as bad dreams. This was consistent with the
evidence of the plaintiff. Mr Nomchong expressed the view that the plaintiff
is suffering from chronic pain syndrome. Mr Nomchong expressed the view that
he could expect some improvement in his psychological
condition if he
underwent a course of treatment.

  

   The plaintiff was also examined by Dr Knox, a consultant psychiatrist, who
reported to the plaintiff's solicitors on 27 November 1997. He agreed with the
description of chronic pain disorder used by Dr Danta
and Mr Nomchong in
relation to the plaintiff, and said

  

  

   "I believe the specific appropriate psychiatric diagnosis for
Mr
Stankovic's disturbed experience of pain is that coded 307.98 in DSM-IV, 'Pain
Disorder Associated With Both Psychological Factors
and A General Medical
Condition'. The medical condition is Mr Stankovic's aggravated degenerative
spinal disease and related soft
tissue injury."

   The plaintiff also tendered medical reports from a doctor from the
Australian Government Health Service, Dr Finn,
which record his finding that
the plaintiff was incapacitated for work, and should be retired on medical
grounds. Dr Finn said in
his report of 25 March 1997 that

  

  

   "Mr Stankovic remains severely incapacitated. He cannot do his regular work
and with
his difficulty in sitting for long, his cervical disc problem and
deformity of the neck with the numbness in his right hand and weakness
of left
arm, retraining for sedentary work does not seem a practical proposition."

   The medical evidence presented in the plaintiff's
case comprised a
substantial body of opinion, consistent within itself, painting a picture of a
plaintiff who suffered injuries in
a collision of considerable force which had
the effect of aggravating previously asymptomatic degenerative conditions, and
leaving
the plaintiff with ongoing pain and restrictions, which physical
conditions have then produced a psychological condition. In response,
the
defendant produced two medical reports, from a psychiatrist and a consultant
physician.

  

   Dr Goldrick, the consultant physician,
examined the plaintiff in February
1996 and October 1997. In his report of October 1996 he expressed the view
that the plaintiff
was grossly exaggerating his degree of disability. He added
that he observed the plaintiff walking from his rooms to his car after
the
examination "briskly". Dr Goldrick said

  

  

   "...his behaviour in the carpark was totally out of character with that in
my office and simply confirms my original impression, namely that Mr Stankovic
is grossly exaggerating any problem he might have."

   In his October 1997 report he expressed the view that the plaintiff had a
soft tissue injury at the time of the accident, which
should have resolved. He
said

  

  

   "I do not believe he is incapacitated for delivering meals etc and linen
around the wards
at the hospital. I do not believe that the incapacity that he
does have, in the form of pains, are related to anything other than
progressive and fairly gross spondylosis, affecting almost everything. I think
that he may be affected by his spondylitis for any
mobility and games that he
wishes to play, however I do not believe that this is related to this remote
car accident."

   In cross
examination Dr Goldrick agreed that the impact forces in this
accident would have been considerable, and noted that the impact occurred
at
about 75 kilometres per hour and that the plaintiff's vehicle was written off.
He agreed that prior to the accident the plaintiff
would have displayed the
ordinary degenerative changes that you would expect of a 52 year old man who
had done physical work all
his life, and that those degenerative conditions
that the plaintiff did have had been asymptomatic prior to the accident.
However
he strenuously disputed that the impact would have aggravated those
conditions for anything other than a very limited period of time.

  

   Dr Goldrick was adamant that there was no evidence of nerve root
irritation. He acknowledged that he had not referred in
his reports to a CT
report, which he did receive, which referred to a disc protrusion at L4-5/S1

  

  

   "...which just abuts
the right S1 nerve root with possible irritation."

   Dr Goldrick said that this was merely a radiological observation, and he
did
not accept that this demonstrated irritation.

  

   Dr Goldrick repeated his views that the plaintiff was exaggerating his
complaints.
Indeed, he referred to the plaintiff "running across the car
park". When it was finally put to him that this was a case of aggravation
of a
previously asymptomatic degenerative condition, he said that that was
"medically inconceivable".

  

   There are always difficulties
in cases where there are ongoing complaints
of significant pain and disability with no clear pathology. In such cases, any
clinician
is dependant upon a plaintiff's history and reported symptoms, which
of course may be exaggerated. In the present case, there is
pathology to
explain the plaintiff's complaints, by way of the radiological evidence of a
degenerative condition, but of course these
signs cannot tell a clinician the
level of pain and disability which confronts a plaintiff. In such cases, it is
not uncommon for
counsel for the defendant to confront a plaintiff with video
material which demonstrates the plaintiff undertaking activities which
he has
said he is unable to do. In this case, the plaintiff presented a history of
considerable disability, and a very limited range
of present activities. No
video was produced, and of course nothing can be drawn from this either way.
But I have grave reservations,
where this question is in issue, in drawing
conclusions based on a doctor's report of observations from their window of a
plaintiff
supposedly showing increased vigour on their way from the doctor's
rooms. Such an observation can of course not be tested or verified
in any
meaningful way as is the case with video material. On the whole of the medical
evidence before me I am satisfied on the balance
of probabilities that the
impact of this accident caused an aggravation of a previously asymptomatic
degenerative condition in the
manner set out by the medical experts called on
behalf of the plaintiff.

  

   The defendant also tendered a report from Dr Wu,
consultant psychiatrist.
Dr Wu expressed the firm view that the plaintiff was malingering. He indeed
recommended in his report that
surveillance should be undertaken of the
plaintiff. I have difficulty with expert medical reports which state baldly
that a claimant
is malingering. This is in truth a conclusion to be drawn by
the court. A medical expert can describe his or her findings, and indeed
can
helpfully express the view that their findings can in no way be reconciled
with a plaintiff's claimed symptoms and disabilities.
While the Evidence Act
1995 has abolished the so called ultimate issue rule, an expert report which
is premised on the expert's conclusion that a plaintiff is
exaggerating, lying
or malingering will be of limited assistance to the court.

  

   It is hardly the role of the expert medical
practitioner to advise on what
surveillance should be undertaken of a plaintiff. A defendant in a personal
injuries matter will inevitably
have their defence conducted by experienced
practitioners instructed by equally experienced insurance company officers.
Any decisions
concerning surveillance, use of videos and the like will be made
appropriately and without the need for advice from a doctor. All
such advice
in a report will do is provide grist for the mill of cross examination, in
suggesting that a doctor is confusing his
role of impartial expert with that
of partisan tactical adviser. Little benefit is obtained by such exchanges.

  

   Dr Wu was
cross examined at length. He maintained his view that he could
tell that the plaintiff was a malingerer. He acknowledged, as he did
in his
report, that he had no information on the plaintiff's physical condition, and
that this would be a matter for an orthopaedic
specialist. Given that Dr Knox
and Mr Nomchong explained Mr Stankovic's psychological condition as arising
from his physical problems,
and specifically his ongoing pain and restrictions
on his mobility, I found an argument that in effect ignored his physical
condition
quite unconvincing. Dr Knox addressed this difficulty in his report,
saying that

  

  

   "Without Dr Wu having taken the opportunity
to get a fuller history of the
physical elements of Mr Stankovic's case I don't believe he can see the matter
in its entirety."

   It therefore follows that I prefer the evidence of Dr Knox and Mr Nomchong
to that of Dr Wu, and I find that the plaintiff has
experienced psychological
difficulties, described by Dr Knox as pain disorder associated with aggravated
degenerative spinal disease
and soft tissue injury.

  

   I find that the plaintiff as a consequence of this accident has suffered a
significant aggravation
of a degenerative condition in his spine and
shoulders, as well as soft tissue injury, and that the associated pain and
restriction
on his mobility has given rise to the psychological difficulties
described by Dr Knox and Mr Nomchong.

  

   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 relation to general
damages I assess the plaintiff as a person who has,
as a consequence of his accident, suffered considerable pain and restriction
of movement as well as a psychological difficulty. I note that Mr Nomchong
expresses the view that there is scope for improvement
in his psychological
condition with appropriate treatment, and that Dr Knox acknowledged that there
had been some resolution already
in that his bad dreams were not as frequent
as they had been.

  

   The plaintiff said that he had been quite active before this
accident,
enjoying gardening and fishing, but that since the accident he was restricted
in all of his activities, although he had
had the odd very short attempt at
fishing. He gave evidence of a considerable contraction of his social life,
although he acknowledged,
and had never attempted to conceal, that he has
since the accident travelled overseas for an extended family reunion. I assess
him
on the basis of soft tissue injuries leading to an aggravation of a
previously asymptomatic degenerative disease, which will continue
to
deteriorate and at best will slow in its progression, together with a
psychological condition related to this ongoing pain which,
with appropriate
counselling, should improve. In relation to general damages, I award the sum
of $35,000, with half of this sum attributable
to loss to trial, resulting in
interest of $590, a total general damages award of $35,590.

  

   The plaintiff's claim in relation
to economic loss is based on a total
inability to return to employment as a result of the accident. On all of the
evidence before
me I am satisfied that the plaintiff's accident related
injuries will have this effect and that but for the accident he could have
expected to work to normal retirement age. Even with an improvement in his
psychological condition, I am satisfied that he will be
unable to return to
his pre accident employment. No evidence was presented as to an appropriate
form of alternative employment which
is legitimately open to the plaintiff,
who has worked as a tradesman or hospital orderly all his working life.

  

   The plaintiff
has been on sick leave for the bulk of the period since the
accident. While the plaintiff's counsel originally claimed that this
should be
disregarded, and the plaintiff's claim was for all his normal wages, this was
abandoned in submissions, quite properly,
on the authority of Graham v Baker [1961] HCA 48; 
(1961) 106 CLR 340. While it is true that a plaintiff is to be compensated for
his loss of earning capacity, rather than loss of
earnings as such, that loss
of capacity must also be reflected in an economic loss. In the present case it
is true that the plaintiff
has lost his earning capacity from the date of the
accident, but that has only been productive of loss to the extent that his
sick
pay involves a reduction of what would otherwise have been his earnings.
At the final day of this matter counsel indicated that the
material in their
possession from the plaintiff's employer was not sufficient to enable them to
provide me with appropriate figures
to calculate the claim for past earning
loss on this basis, and I gave leave to the parties to submit this material
after the matter
was adjourned.

  

   This clearly proved to be a task of greater complexity than originally
expected. I caused the matter to be
relisted before me for directions on 17
April 1998, and at this hearing I was advised that the parties were agreed
that the plaintiff's
past wage loss should be quantified at $40,000 and that
his ongoing wage loss is in the sum of $492.77 per week. The claim for future
loss was particularised at $358.68 per week in July 1997.

  

   In relation to past wage loss, I award the sum of $40,000, which,
in
accordance with the practice direction, generates interest of $5,375, making a
total past economic loss award of $45,375.

  

   In relation to future economic loss, I am satisfied that the plaintiff's
claim to an ongoing wage loss to normal retirement age
is made out and, that
the claim at the rate agreed should be awarded. That is, I award the sum of
$192,400.00 being the particularised
economic loss for a period of 10 years
and one month, taking the plaintiff to his retirement age, subject to the
normal discount
of 15% viscissitudes.

  

   In relation to out of pocket expenses, I award the sum of $4,148.85,
reflecting the out of pocket expenses
contained in the schedule presented by
counsel for the plaintiff. In relation to future out of pocket expenses, I
award the sum of
$3,000, which will reflect the cost of the future treatment
proposed by Mr Nomchong and provide some buffer in respect of other expenses.

  

   A Griffiths v Kerkemeyer claim was particularised, but counsel, properly in
my view, conceded that the level of assistance
provided in this case fell
within the normal range of the reasonable domestic give and take described by
the majority of the High
Court in Van Gervan v Fenton [1992] HCA 54;  (1992) 175 CLR 327, and
I make no award against this claim.

  

   This amounts to a total award of $228,158.85, which I consider
to be
appropriate in all of the circumstances.