Kucharski v Savage [1998] ACTSC 74 (31 July 1998)

Last Updated: 13 October 1999

Kucharski v Savage [1998] SCACT 74 (31 July 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Whiplash injury - Aggravation of an underlying degenerative condition - No issue of principle.

No. SC 99 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 31 July 1998

IN THE SUPREME COURT OF THE )

) No. SC 99 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KRZYSZTOF KUCHARSKI

Plaintiff

AND: CHANTAL SAVAGE

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 31 July 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $100,134.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 8 December 1995 at Tuggeranong in the Australian Capital Territory. The plaintiff was at the time doing home delivery work for a take away chicken company, and collided with the plaintiff who failed to give way at the intersection of Ashley Drive and Cliff Crescent. Liability for the accident was admitted, and the matter proceeded by way of an assessment only.

2. The plaintiff sustained soft tissue injuries in the accident which he claims continue to cause ongoing disability, and which he says are likely to cause further deterioration into the future. Although he has for some years now been able to work as a taxi driver, and has told numerous doctors that he is able to work 36-42 hours a week as a taxi driver, he says that this involves shorter shifts than would be normal, and so he continues to suffer an economic loss from the injuries. The defendant argues that the plaintiff's soft tissue injuries caused a period of restriction of earnings, but that he is now able to work full hours, and at most should be awarded a very modest buffer for future income loss.

3. The plaintiff was born in September 1959 in Poland. He completed high school in Poland to the equivalent of Year 12, and then undertook training in the hospitality field, similar to the type of training offered in the Technical and Further Education sector in Australia. He worked in this field as a waiter and barman before coming to Australia with his wife and family in 1992.

4. The plaintiff acknowledges that he had difficulty in finding employment in Australia. He undertook studies in English at the Canberra Institute of Technology, and found one period of work experience in the hospitality field. He said that he formed the impression that, whereas in Poland people would often work as a waiter or barman until retirement, in Australia this was predominantly work for younger people. He acknowledges that this was only his impression, and he had not been refused work on the basis of his age.

5. Until the accident the only paid employment the plaintiff had been able to undertake in Australia was part time work delivering take away food for Kentucky Fried Chicken. He says that he was earning about $170 a week for this work.

6. The accident occurred at about 7 pm. The plaintiff said that he experienced pain in the neck and chest at the time of the impact. He went home, and the next morning attended his general practitioner, Dr Gray-Grzeskiewicz. He concluded that the plaintiff sustained soft tissue extension/flexion injuries to the neck, and seatbelt bruising to the chest. He prescribed Voltaren and Panadeine Forte, and referred him to physiotherapy. He issued a certificate that Mr Kucharski was unfit for work, and continued these certificates until April 1996. In a report of 4 May 1996 Dr Gray-Grzeskiewicz said that the plaintiff sustained moderately severe flexion extension soft tissue neck injuries in the accident which had resolved well, although he noted that when the plaintiff was last seen on 9 April he was complaining of persistent minor headaches and neck discomfort but that he generally appeared to be making a good recovery. He said that there was a generally good outlook, but said

"...one must remember on figures available to me that some 5 to 10% of whiplash injuries go on having significant pain and neck mobility problems long after settlement of litigation (sometimes 5 to 10 years)."

7. The plaintiff found employment from June 1996 as a taxi driver, having undertaken the necessary training. He says that he thought at first that he had fully recovered and that he could operate for full 12 hour shifts, but that he found that long hours as a taxi driver would cause his neck pain and headaches to flare up, and that he has been generally restricted to working about half of these hours. The only details of his work was a hand written journal that the plaintiff says recorded his takings. This did not purport to show actual hours worked. The plaintiff's employer was present at court and was to give evidence for the plaintiff, but, after his counsel requested a short adjournment for the purposes of conducting a brief conference with the witness, was not called by the plaintiff. The defendant argued that I would be entitled to draw from this the inference that the evidence that he could give would not have assisted the plaintiff's case.

8. The plaintiff continued to complain of ongoing neck pain and restriction of movement. He was referred by his general practitioner to Dr Chandran, who examined him on 11 November 1997 and reported to Dr Gray-Grzeskiewicz the same day. He found no neurological abnormality and neck movements showing mild to moderate restriction with no tenderness. He said that CT scans showed degenerative changes at C5/6 with osteophytes and a mild disc bulge. Dr Chandran suggested surgery as a possible treatment if nerve conduction studies showed nerve root compression. These showed normal.

9. In a report of 7 May 1998 Dr Gray-Grzeskiewicz said that he was convinced that the plaintiff would never "completely recover" and would suffer more or less severe problems with his headaches and neck for the rest of his life. He recommended that the plaintiff be retrained for office work

"...which of course would have a very positive impact upon his future chances of obtaining reasonably satisfying employment."

10. Dr White, a neurologist, has seen the plaintiff for a series of medico legal reports. In his first report, of 7 June 1996, he concluded that the plaintiff developed a significant whiplash injury and was slowly improving. He said that the plaintiff has discomfort in the cervical region and intermittent headaches, and was able to undertake any physical activity, but was unable to keep up most activities for any prolonged period of time due to pain. He said that the plaintiff was fit to work as a driver and

"...will slowly graduate back to full time."

11. In March 1997 he again examined the plaintiff, and found that he had moderate pain approximately two days per week, associated with bilateral arm numbness occasionally. He took a history that the plaintiff was then working 6-7 hours a shift 3-4 times a week. He said that

"The overall prognosis is for continuing improvement, although it is extremely slow. I believe that he probably has disc injury in the cervical spine and that he will have a permanent tendency towards exacerbation of cervical pain with inappropriate physical activities."

12. Dr White again examined the plaintiff in June 1988, where he found little change in his condition, but noted that the plaintiff said that he was driving a taxi for 35 to 36 hours a week. He said that

"This is substantially more than previously and does not appear to have exacerbated his symptoms substantially."

13. He again noted the presence of degenerative disease which he said was consistent with the symptoms claimed. Dr White said

"At this stage he has discomfort and is restricted from undertaking a full range of physical activities, particularly with his children, which he might otherwise indulge in but is otherwise not disabled. At present he continues conservative treatment with analgesic medications intermittently and I believe this to be appropriate for him. I would not recommend surgery given my firm belief that surgery should be restricted to patients who have progressive neurological deficit or intractable pain. Mr Kucharski does not fall into this category. Although he has improved a little since last seen, in essence his symptoms are stable and I believe will remain so. I believe that he will be able to maintain his current level of work over the next five to ten years but probably may be unable to continue at that level long term thereafter. This would be predicated on the basis of normal aging changes super imposed on what has been step wise deterioration in the structural integrity of his cervical spine as a result..."

of the motor vehicle accident the subject of this claim.

14. Dr Chandran in a report of February 1998 took a history of neck pain requiring the plaintiff to restrict his driving activities, and reported

"The symptoms described by this man are consistent with a soft tissue injury to the neck in a motor vehicle accident, causing minor restrictions of activities, particularly the hours of work he can do as a taxi driver. His condition is thought to be stable but spontaneous deterioration cannot be ruled out."

15. The defendant tendered medical reports from Drs Kretsch and Hofland. Dr Kretsch examined the plaintiff in July 1996, and formed the view that he had sustained a soft tissue whiplash type injury in the accident. He seems to accept that this caused the plaintiff to be absent from work for a period, and noted

"Currently the patient is physically capable of carrying out his part time/casual work duties as a taxi driver. Over the next six months, I believe he would be capable of increasing his hours to eventually work full time as a taxi driver. Eventually, I believe, the long term prognosis should be good. His symptoms may persist intermittently over the next 12 to 18 months, but eventually I do not believe he should be left with any long term disability with regard to his current claim."

16. No re examination by Dr Kretsch was presented, but the plaintiff was seen for re examination by Dr Holland, a consultant in rehabilitation medicine, in September 1997. She noted the CT scan which showed a disc bulge and the plaintiff's complaints of intermittent numbness of the arms, and recommended a neurosurgical opinion. She referred her concerns to Dr Gray-Grzeskiewicz, and as a consequence he saw Dr Chandran whose reports I have noted.

17. On all of the medical evidence I conclude that the plaintiff suffered a whiplash type injury which continues to produce symptoms of neck pain and headaches, and which has led to the aggravation of an underlying degenerative condition. As there is no history of complaints of neck or back pain before the accident, I must conclude that the accident has rendered this previously asymptomatic condition symptomatic.

18. 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'."

19. In relation to general damages, the plaintiff gave evidence that he has been unable to continue with the range of sporting activities which he enjoyed before this accident, and that he must be careful with his activities in playing with his young sons. This is entirely consistent with the medical reports. He must be assessed on the basis that he must continue to exercise a degree of caution well into the future. I note that while he is capable of doing all activities, he will experience pain if he persists for long periods. He is independent in all aspects of daily living. He has been able to continue to study English and has obtained employment after the accident which is more satisfactory than the part time take away food delivery work that had been all that he had been able to obtain up until the time of the accident. He accepts that he is working 35 plus hours a week as a taxi driver, but says that he would like to be able to work longer.

20. His doctors have noted improvement since the accident, but his condition now seems to be stable, with the possibility that the underlying degenerative condition may be further aggravated into the future.

21. In relation to general damages I award $30,000, with $10,000 attributed to past loss generating interest of $529, leading to a total general damages award of $30,529 which I consider to be appropriate in all of the circumstances.

22. It is conceded that in the period from the accident to April 1996 the plaintiff was absent from work in his job as a take away food delivery driver, and that this would have generated income at the rate of $150 nett per week, leading to an income loss for this period of $3,750 which should be awarded. The plaintiff then was studying English and doing some work experience in the hospitality industry, which did not lead to employment. He then commenced working as a taxi driver in June 1996, and has continued in this employment to date.

23. It is the plaintiff's case that he is restricted in the hours he can work, and that, but for this restriction, he could double what he earns. He has particularised an ongoing loss of $200 per week. I note that he acknowledged that he would often work up to about midnight, and that he rejected the suggestion put to him by counsel for the defendant that in Canberra after hours work is limited, and that working longer shifts would not necessarily lead to a doubling of takings. I note also that his employer was present outside the Court to give evidence but that his counsel elected not to call him and I am entitled to draw from this the inference that his evidence would not have assisted the plaintiff. I note that there is no detailed record of his working hours, and that his hand written note book shows only his takings. I am not satisfied that the evidence in this case is sufficient to justify an arithmetic approach to past and future wage loss.

24. I accept the evidence that the plaintiff is restricted in his ability to work 12 hour shifts, but note that he has acknowledged working for what amounts in most employment to full time hours. I note that his general practitioner, in his most recent report, suggests retraining into a position where the plaintiff could perform office work and thus avoid long periods of driving, which is far from ideal employment for a person with the plaintiff's established medical condition.

25. The defendant put it to the plaintiff that he has no real restriction in his activities and could, if he wished, work full and unrestricted hours as a taxi driver. The plaintiff was not confronted with any video or other evidence to support such a claim, and I note that the defendant's own medical evidence accepts that the plaintiff makes claims, which are not rejected, of pain and restriction. While Dr Kretsch said in mid 1996 that he thought these would resolve in 12 to 18 months, no follow up report was presented. I do not find the defendant's submissions in favour of a minimal buffer based on the absence of any real restrictions convincing.

26. On all of the evidence I am satisfied that the plaintiff is left with an ongoing disability which manifests itself in pain and discomfort after prolonged activities such as driving. This does amount to a restriction on his ability to work in this industry, although I must accept that he has been able to work for at least 35 hours on a regular basis, which amounts to near normal hours. I note also his general practitioner's advice as to alternative employment which would not cause the same problems as driving.

27. Against this must be considered Dr White's prognosis that the plaintiff's underlying condition might degenerate so that he could no longer continue with his present activity levels as a driver. On all of the evidence, it seems to me that this is a matter where past and future income loss is best looked at as a discretionary buffer. The plaintiff is unable to operate at his full capacity as a taxi driver, but would be able to work normal hours in other activities. He is a relatively recent migrant whose English is still improving, and this will have an impact on the range of employment options open to him. He must be seen to be at an accident related disadvantage on the general employment market which must sound in a discretionary award of some magnitude. Taking all of these factors into consideration I would assess damages for loss of income capacity at $60,000 in respect of past and future loss inclusive of any interest, to which I would add the plaintiff's precise claim of $3,750, leading to a total of $63,750.

28. Out of pocket expenses were agreed in the sum of $3,355 which I award.

29. No evidence was lead in relation to costs of future treatment. I note that the medical reports refer to ongoing use of pain killers, and the plaintiff confirmed this, without evidence as to cost. No evidence was lead as to the cost of a future operation, but I am satisfied on all of the evidence that this remains a remote chance. A discretionary buffer of $2,500 seems appropriate for the cost of future medications.

30. A Griffiths v Kerkemeyer claim was particularised, but was not pursued. Given the evidence, this was appropriate.

31. This amounts to a global award of $100,134 which I consider to be appropriate in all of the circumstances.

I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 31 July 1998

Counsel for the Plaintiff: Mr F G Parker

Instructing Solicitors: Gary Robb & Associates

Counsel for the Defendant: Mr M Williams

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 22 July 1998

Date of judgment: 31 July 1998