Tanaskovic v Bateman [1998] ACTSC 84 (21 August 1998)

Last Updated: 13 October 1999

Tanaskovic v Bateman [1998] SCACT 84 (21 August 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Mild to moderate soft tissue injury - Aggravation of pre existing underlying lumbar condition - No ongoing disability found despite plaintiff's claims of ongoing restrictions in movement and activity due to the accident - Video surveillance evidence inconsistent with plaintiff's claims as to his restrictions - Misleading histories given by plaintiff to doctors - No issue of principle.

No. SC 789 of 1995

Coram: Master T Connolly

Supreme Court of the ACT

Date: 21 August 1998

IN THE SUPREME COURT OF THE )

) No. SC 789 of 1995

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MIODRAG TANASKOVIC

Plaintiff

AND: DAVID BATEMAN

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 21 August 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $27,592.35.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 21 February 1994 at Garran in the Australian Capital Territory. The plaintiff was driving his vehicle in a southerly direction on Yamba Drive. As the plaintiff was just outside the Canberra Hospital he came to a stop behind a bus. The defendant was travelling behind the plaintiff, and admitted that he had glanced away from the road for some seconds, and noticed the vehicles in front coming to a halt too late to avoid a collision. Liability was, quite properly, admitted.

2. The plaintiff was born in 1931 and at the time of the accident he was no longer in the workforce, having retired due to two industrial accidents around 1980. He had been on an invalid pension. There was accordingly no claim for economic loss, and the matter proceeded by way of an assessment only of general damages and a claim for domestic and gardening assistance pursuant to the rule in Griffiths v Kerkemeyer. Nevertheless the matter extended over 5 hearing days, with two days in March and three days in August. The matter would, no doubt, have taken longer had counsel not adopted the sensible course of admitting in all medical reports without requiring cross examination of the doctors.

3. The plaintiff was born in Serbia and came to Australia in the 1960's. He only had a limited education in Serbia and worked in a variety of labouring jobs in Australia. He gave his evidence through an interpreter, and some time was lost due to difficulties in obtaining an appropriately qualified interpreter. It became apparent at the outset that the issues in the trial essentially involved a challenge to the plaintiff's credibility. The plaintiff claimed to be extremely restricted in his movement and activities, and extensive video material was shown. This material did not reflect well on the plaintiff.

4. The plaintiff claimed that the accident caused whiplash injury to the neck, injury to both shoulders, tinnitus, aggravation of a pre existing lumbar spine injury and aggravation of a pre existing but asymptomatic disc degenerative condition in the cervical spine. The plaintiff also claimed psychological injury.

5. The plaintiff said that he estimated the defendant to have been travelling at 100 kilometres per hour on impact. The defendant said that he was travelling at 60 kilometres an hour when he noticed the vehicles in front stopping, and then applied the brakes to the point where they locked up. He said that his vehicle was slowing, and estimated the impact occurred when his vehicle was travelling at around 25 kilometres an hour. I am satisfied that the collision occurred at a time when the plaintiff was stationary, and the defendant travelling at some speed below 60 kilometres an hour. Counsel for the defendant, properly, ackowledged that this would involve an impact of considerable force.

6. The plaintiff said in his evidence that he was unconscious for some minutes following the impact. He has told this story to various doctors in recent years, ranging up to 5 minutes of unconsciousness. He has been recorded by a physiotherapist as saying that he remained in his vehicle with his wife for half an hour after the impact. The defendant said that following the impact both he and the plaintiff immediately got out of their respective vehicles. When the plaintiff first saw his general practitioner some 10 days after the accident he did not report a loss of consciousness. Claims of loss of consciousness begin to appear in histories taken by various experts from around early 1996. I accept the evidence of the defendant that the plaintiff immediately got out of his vehicle. I note the absence of contemporaneous complaints of loss of consciousness. I find that the plaintiff did not lose consciousness at the time of the accident.

7. The plaintiff had a history of working with heavy equipment, including jack hammers. He conceded in cross examination that he did not use ear protection. He suffered an injury while working as a labourer at the High Court in June 1979 which resulted in a damages claim in this Court. This was described in that statement of claim as involving the plaintiff being struck on the head and shoulder by a large piece of timber. Particulars of disabilities and losses involved a claim for tinnitus in both ears. The defendant tendered this material, together with some medical reports which were generated during that claim, including a note from the plaintiff's general practitioner, Dr Madew, who said in February 1985 that his major complaints were now headaches and tinnitus in the right ear. There were also reports from Dr Crisp, an ear nose and throat surgeon, who in December 1985 reported on treatment to an infection in the left ear, saying

"...at best his hearing on the left could be improved to approximate the other side which has about a 40% sensori neural loss."

8. The plaintiff claims that his tinnitus is related to the accident. He tendered a report of May 1994 from Dr Pham, an ear nose and throat surgeon. Dr Pham took a history that the plaintiff had developed right ear tinnitus since the accident. He recorded

"He has no history of noise exposure".

9. Both of these statements I find to be untrue. Despite this quite misleading history Dr Pham was not convinced that his complaints were linked to the accident. In a later report of September 1994 he qualified this opinion by saying

"He did, however, say that he only developed the ringing noise in the right ear since the accident and it is possible that with any kind of stress or trauma it could bring on the tinnitus that way. In any case the tinnitus is subjective and there is no way for me to prove when it arose."

10. Given that the history on which this conclusion is based is on my findings of fact untrue, I cannot rely on it (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642).

11. The defendant also tendered a report from an ear nose and throat surgeon, Dr Stone. In his report of August 1997 he took a history of exposure to noise in previous occupations, but also recorded the plaintiff as saying that he had no hearing deficiency before the incident. This is clearly not consistent with the 1985 material. He formed the view, which he qualified by saying

"...if it is conceded that Mr Tanaskovic is a reliable witness"

that some hearing loss and tinnitus could be related to the accident. As he had no history of prior hearing loss and prior complaints of tinnitus I again cannot rely on this opinion.

12. I am not satisfied that the accident caused any hearing loss or tinnitus beyond the pre existing condition which Mr Tanaskovic did not reveal to the experts.

13. The plaintiff claims that his back condition has been greatly affected by the accident. The plaintiff has of course made two previous claims in this court which involved aspects of spinal injury. In matter SC 124 of 1982 he claimed that he injured his back while lifting concrete blocks from the back of a truck. This claim was particularised as involving pain in lower back and neck, acute disc prolapse, pain in lower back spreading to leg, and residual disability in lower back and movement generally. In matter SC 297 of 1985, which related to the earlier incident at the High Court, he particularised a claim to include loss of strength and flexibility of the spine. The plaintiff has of course not worked since 1980, primarily due to his back condition, and has had a disabled parking sticker, based on his claimed mobility problems, since 1988.

14. The plaintiff gave evidence that he applied for the disabled parking sticker because he had difficulty in walking, and also said that he then walked with a limp. He also gave evidence that, prior to the accident, he was very limited in the activities that he could carry out in his garden, saying that he could do some garden chores for about two minutes at a time, but then saying that it might have been up to five minutes. He also said that it was only a small garden and that he only needed to do these activities pre accident about once a week.

15. The defendant produced and tendered video surveillance film of the plaintiff. This showed him walking from his home to clubs and shops at Woden. He walked, to my observation, without apparent limp or difficulty. In one passage of film he embarked on a most curious shopping expedition at Woden, being filmed walking from his car in the carpark to a shop, and then repeatedly from the shop to the car, and back to another shop, without making any purchases. It was put to him that he had at the time been observed to be shoplifting. He denied this, but conceded that he had once been apprehended shoplifting. The defendant produced the surveillance operative, but I ruled that he could not give evidence going to his observations of the plaintiff's activities to contradict the plaintiff's denial that this had been a shoplifting expedition, as this evidence would go only to the plaintiff's credibility (Evidence Act 1995, s.102). What I must conclude from this video material, however, is that the plaintiff was able to move about relatively freely, and make a series of apparently unnecessary walks to and from the shops to his car. This material was not at all consistent with the picture the plaintiff sought to portray.

16. The video also showed the plaintiff on occasions watering his garden or taking part in slow and non strenuous activities in the garden. Certainly they did not show him wielding an axe, but it was his case that his pre accident activities were restricted, and that the accident stripped him of his residual capacity to garden. I do not accept this claim. His consultant physician, Dr Cassar, was aware that the plaintiff had ceased work in 1980,

"...because of injury based disability to the spine."

He said, in a report of 24 November 1997

"History would suggest that your client was not fit to work at the time of the motor vehicle impact but was at least comfortable, not in constant pain and capable of domestic light chores and recently unrestricted social activity, none of which pertains now since the accident in question."

I do not accept this history, and find that the plaintiff remains in broadly the state Dr Cassar described to be his pre accident condition.

17. Having observed the plaintiff over several days in the witness box, I formed a very poor view of his credibility. In one piece of film the plaintiff repeatedly denied that he was shown raising his arm to above his shoulder. He first denied that it was him, and said that it was the person next to him or behind that was raising the arm. The plaintiff had previously been asked to demonstrate his range of movement in his right arm. On that occasion he was able, with apparent signs of pain, to lift his arm to about parallel with his chest. The video, which was taken during a session of bingo, showed the plaintiff raising his arm some three times, apparently to attract the attention of the caller having succeeded in his game. While this was being shown, the plaintiff repeated this action in the witness box. While he did this with a shrug, as if to suggest that it was no major action, it was quite inconsistent with his earlier claims.

18. I have previously referred to the various inconsistencies in the plaintiff's histories as recorded by examining doctors. The plaintiff blamed these on poor interpreters, or on errors by the examining doctors. I did not find these explanations convincing.

19. Doctors who have examined the plaintiff for the defendant have expressed the view that the plaintiff displayed grossly exaggerated claims of pain and disability which were impossible to verify. This is quite consistent with his observed behaviour in the witness box, and the disparity between his claimed range of movement and activity and the video material. Taking all of the evidence into account, I am inclined to most favour the views expressed by Dr Goldrick, who concluded that the plaintiff suffered soft tissue injuries in the accident which aggravated his underlying problems for a time. I note also the views of Dr Andrews, who in a report of April 1997 expressed the view that

"He has a pre existing lumbar condition which I doubt has been further aggravated in the accident."

20. The plaintiff has also claimed psychological injury from the accident as a consequence of his alleged chronic pain and immobility. Dr Tym, reporting for the plaintiff's solicitors, initially diagnosed post traumatic stress disorder, but in a report of October 1995 formed the view that the plaintiff no longer suffered from this condition.

21. In a report of 24 February 1998 Dr Tym concluded that the plaintiff satisfied the diagnostic guidelines for moderate depressive disorder. He made the observation that,

"It is also very difficult to see how his multiple physical conditions all relate to physical sequelae of the subject accident",

but nevertheless offered the view that

"...he is an honest man who truthfully reports what he feels."

It is apparent that this is not my conclusion having had the benefit of all of the evidence.

22. Dr Dent, a consultant psychiatrist, also examined the plaintiff for his solicitors, reported in February 1996 that the plaintiff had a Chronic Pain Disorder and Chronic Post Traumatic Stress Disorder. Dr Dent also offered the view that

"...it is very clear that this is a very genuine man."

23. Dr Dent noted that the plaintiff linked his depression to his tinnitus, and similar observations were made by Mr Petroni, a clinical psychologist, who reported for the plaintiff in February 1995. In both cases the assumption was made that the tinnitus was accident related. Mr Petroni did not find Post Traumatic Stress Disorder, and noted that

"His pain behaviour in respect of his physical injuries is rather emotional and perhaps exaggerated",

but suggested that this was not conscious embellishment.

24. Dr Glasser, who examined the plaintiff for the defendant's solicitor in August 1997 formed the view, on the history given, that the plaintiff did continue to suffer from some mild symptoms of post traumatic stress. Given my findings on the plaintiff's overall credibility, I am entitled to be cautious of such findings, as they depend entirely on the plaintiff's subjective complaints to the assessing doctors. I am not satisfied, on the balance of probabilities, that the plaintiff suffered psychological injury as a consequence of this accident.

25. My finding then is that the plaintiff in the subject motor vehicle accident suffered soft tissue injuries which aggravated for a time his significant underlying back difficulties which had forced him to give up work in 1980, and which, he claimed, already greatly restricted his day to day activities.

26. 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'."

27. In relation to general damages, I assess the plaintiff on the basis that he suffered only mild to moderate soft tissue injuries which have now settled and which impacted only marginally on a previously disabling condition. While he claims that he is now grossly restricted in his movements and activities, I did not accept his account, and found the video material in several respects quite inconsistent with his claims. These show a man of the plaintiff's stated age able to walk a considerable distance with no limp or apparent difficulty, and to engage in minor gardening activities such as holding a hose to water a garden. This material was in fact not only in conflict with his claimed disabilities following this motor vehicle accident, but in many ways inconsistent with his description in cross examination of his claimed state before this accident. I find that the plaintiff should be awarded general damages in the sum of $20,000 for his soft tissue injuries, all of which I find attributable to past loss, generating interest of $1,800, for a total general damages award of $21,800.

28. Out of pocket expenses were claimed in the total sum of $5,937.50. The great bulk of this sum, some $4,876.50, relates to a burst of treatment activity which occurred in late 1996 to the second half of 1997 from Dr Cassar. There was no evidence before me to justify an attack on this treatment, which I am entitled to accept was for the purpose of trying to resolve the plaintiff's claimed problems, and I am satisfied that this amount should be included in an award, but I note that, absent this late treatment attempt, the out of pocket expenses more closely resemble what would be expected in this claim which, as I have found, amounts only to a moderate soft tissue injury for a closed period. The plaintiff provided a detailed breakdown of the expenses, and it is appropriate to exclude some expenses relating to his ears, which I have found to be unrelated to the accident. It is appropriate to exclude the amounts incurred to Drs Pham and Chapman, the ear nose and throat specialists, which amount to a total of some $145.15. This leaves a total for out of pocket expenses of $5,792.35, which I award. As I have found that the plaintiff's soft tissue injury and aggravation from this accident have resolved, no award for future out of pocket expenses is established.

29. The plaintiff particularised a claim for damages for domestic assistance provided, it was said, by his sons and son in law, and claimed at the rate of 6.5 hours a week. This was particularised, at a rate of $15 per hour, which has been accepted as an appropriate benchmark for the hire rate for domestic help, at some $20,955 to trial and $63,449.25 for the future.

30. The claim as particularised must fail, if only because the plaintiff in his own evidence said that his levels of activity in the garden before the accident amounted to only short bursts of activity which, he said, a fit man could have done in about one hour per month. This would in my view be the appropriate starting point for any claim. The plaintiff's children gave evidence, and this also fell well short of the claim as particularised. Taking all of this into account, as well as my findings as to the plaintiff's injuries and general level of mobility and fitness, I do not find that the occasional limited assistance which members of the plaintiff's family provide by way of activity in the garden goes beyond the mutual give and take of family relationships described by the High Court in Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 249. I do not find that a claim for damages for domestic assistance provided by family members is established.

31. This amounts to a total award of $27,592.35 which I consider to be appropriate in all of the circumstances.

I certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 21 August 1998

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Watling & Roche

(formerly Scott Sheils & Glover)

Counsel for the Defendant: Mr M McDonogh

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 24 and 25 March, 3, 4 and 5 August 1998

Date of judgment: 21 August 1998