Nguyen v Bucis [1999] ACTSC 84 (6 August 1999)

Last Updated: 6 October 1999

Nguyen v Bucis [1999] ACTSC 84 (6 August 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Mild soft tissue injury to back rendering a previously underlying degenerative condition asymptomatic - No issue of principle.

No. SC 305 of 1997

Coram: Master T Connolly

Supreme Court of the ACT

Date: 6 August 1999

IN THE SUPREME COURT OF THE )

) No. SC 305 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SAM VAN NGUYEN

Plaintiff

AND: MARICA BUCIS

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 6 August 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $101,857.70.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident on 26 July 1994 at the intersection of Kingsford Smith Drive and Kreft Street in Florey in the Australian Capital Territory. The plaintiff was driving in a northerly direction along Kreft Street, having picked up his children from school, and was stationary at the give way sign at the intersection when he was struck from behind by the defendant. The defendant raised a number of issues concerning contributory negligence in the pleadings, but during the hearing abandoned these points, and so the matter proceeded before me as an assessment of damages only.

2. The plaintiff was born in 1950 in Vietnam, and received schooling until he was 12 years of age. He then helped on the family farm until he entered military service as an infantryman with the Army of the Republic of Vietnam. He sustained a series of wounds during the course of his military service, but these are no longer disabling. He left the military in 1973, and took up tailoring, repairing military uniforms for two years. He then opened a coffee shop. He married in 1979. The plaintiff has limited English language skills, and gave his evidence through an interpreter. I take into account the difficulties faced by persons whose first language is not English in giving their evidence in a courtroom environment (per Kirby J, State Rail Authority of New South Wales v Earthline Constructions [1999] HCA 3; (1999) 73 ALJR 306 at 329).

3. In that year he also took the decision to flee Vietnam, and escaped to Thailand, spending six months or so in a refugee camp before being accepted for resettlement in Australia. He came to Australia in 1980 and settled in Canberra. He worked for City Parks as a seasonal labourer for three or four years, and then found employment as an outworker for a company which produced outdoor garments and camping equipment. He obtained his own industrial sewing machine, and manufactured sleeping bags for this company at his own home.

4. Mr Nguyen said that he was paid at an hourly rate, but that the rate was calculated by the number of sleeping bags produced, a certain output being deemed to be an hour's work. He was paid at the rate of $10.23 an hour, and said that he was able to obtain about 20 hours work a week. He says that around March 1993 he was able to increase his work to about 30 hours a week, and that he was still working at about this rate at the time of the accident on 26 July 1994.

5. On the day of the accident he had picked up his two children from their schools and was returning to the family home. His son was sitting in the front and his daughter was sitting in the rear of his Nissan Navara four-wheel drive vehicle. He says that he stopped at the intersection and was observing traffic when he was struck in the rear by the defendant. He got out of the vehicle and inspected the damage, noticing a dent in the rear bumper bar. A photograph taken some two months after the accident showed this damage and was tendered.

6. It is the plaintiff's case that the accident rendered symptomatic a previously asymptomatic degenerative condition of his lumbar spine, and that he has suffered ongoing lower back pain since the accident, which has substantially interfered with his general lifestyle, and has limited his ability to engage in remunerative work.

7. The plaintiff says that he had sustained some soft tissue injuries to his neck in a previous motor vehicle accident in 1990, but that this settled after a while, and at the time of the subject accident he was in good health. He was able to work, to do household tasks, and to run twice a week for about four kilometres. After the accident he noticed a pain in his back, and the next day he attended the Melba Health Centre. Dr Ong reported on 15 February 1995 that he examined the plaintiff on 27 July 1994 and

"...found that he was tender in the lumbar sacral region. Flexion and extension of his lumbar spine was painful and restricted. He had no pain on rotation and lateral flexion of his lumbar spine."

Dr Ong prescribed anti inflammatories and physiotherapy.

8. Mr Nguyen says he took about a week off work, but then had to start again as he needed the money. He says he was experiencing a stabbing pain in his back. He saw Dr Ong again on 9 August 1994 and complained of lower back pain and loss of sensation in his leg after sitting for about an hour. Dr Ong examined x rays and found no fractures, although he said

"At L3/4 and L4/5 levels there was marked end plate spurring anterolaterally indicative of degenerative changes."

Dr Ong diagnosed

"...facet joint dysfunction of the lumbar spine"

and advised the plaintiff to avoid heavy lifting, and to take regular breaks after working for an hour, and to reduce his level of work to the level he could tolerate. Mr Nguyen says that he worked for about 20 hours a week after the accident, and that he continued this despite being offered increased hours in January 1995 because of his back pain. In December 1996 the business closed down in Canberra and relocated to New Zealand, and the plaintiff lost his job.

9. Dr Ong continued to record complaints of recurrent back pain, and in March 1995 recommended that the plaintiff sleep on a firm bed.

10. Mr Nguyen was examined for medico legal purposes by Dr Keiller, who reported on 1 June 1996. He expressed the view that in the accident the plaintiff sustained soft tissue injuries, but he noted that there were early degenerative changes present on the x rays. In a later report of 23 March 1998 Dr Keiller concluded that the plaintiff

"...sustained a soft tissue injury to his lumbar region in the accident."

He noted the underlying degenerative changes, which had been asymptomatic. There was no challenge to the plaintiff's evidence that he had never complained of low back pain. Dr Keiller said

"The degenerative changes were liable to cause symptoms at any time, but they had not done so before the accident. There was no supposition that they were about to do so in the near future if the accident had not occurred. Once painful, such changes tend to remain so to some degree, and sometimes to become increasingly painful with time if the degenerative changes progress; especially in the more arduous work situations. I think the latter is unlikely for your client, but the accident did act as a trigger for the onset of symptoms. It can, therefore, be said that the incident deprived him of the chance of remaining symptom free for longer, and perhaps indefinitely."

Dr Keiller said

"On balance, I think it unlikely he will develop more severe pain as a result of the accident, although it is possible the natural progression of the basic degenerative condition may have that result. There will probably be slow improvement with time if he keeps up the exercises and maintains muscle condition and mobility."

11. His general practitioner also referred him to Dr Speldewinde, a rehabilitation physician, for treatment. He reported on 7 April 1998 that the plaintiff

"...continues to present with chronic mechanical central low back pain of mild to moderate severity."

He noted that this came on immediately after the accident, and reported that

"...he has had a stable continual level of symptoms for the past 12-18 months and was mildly improved with our back strengthening program and analgesics."

12. Dr Speldewinde seemed to share Dr Keiller's views on the likely prognosis, reporting that

"...his condition has stabilized, there is not likely to be any deterioration and there maybe slow improvement with the passage of time."

Both specialists estimated his percentage impairment to be in the order of 10% loss in terms of the whole person impairment tables.

13. The plaintiff was also examined by Dr Andrea, Dr McEwin and Dr Battlay for the defendant. In Dr Andrea's first report of December 1996 he formed the view that

"Mr Van Nguyen has degenerative changes in the lumbar spine which seem the cause of his back symptoms. He is no doubt getting some pain in his back which is most likely associated with the continual bending necessary when making sleeping bags."

He expressed the view that

"I think it likely that Mr Nguyen hardly felt the impact and it does not take much of an impact to damage the bumper bar of a small Japanese car."

14. Both the plaintiff and his daughter gave evidence that they experienced a significant impact, and I note that, contrary to Dr Andrea's understanding, the vehicle was not a small sedan, but a larger four wheel drive vehicle. Dr Andrea's conclusion was that

"I think Mr Van Nguyen's back would be much as it is now had the recent accident not occurred and doubt this accident produced any permanent damage."

15. In a later report of 31 July 1997 Dr Andrea modified this view, and accepted that

"On balance, I think the 1994 accident caused some aggravation of his degenerative back but this aggravation should have settled within a few months."

16. Dr McEwin in his report of 4 August 1988 also took the view that the plaintiff had mild spondylosis of his lower lumbar spine which

"...may have been aggravated (based on his history) by the motor accident but I do not think the degree of aggravation was of any great significance. The accident appears to have been fairly mild in nature. If his back was aggravated by the motor accident I would expect such aggravation to cease within four or five weeks."

17. Dr Battlay, in his report of 31 August 1988 formed the view that

"...the radiologically demonstrated and long standing degenerative changes of his back at present adequately explain his symptoms. I doubt if there is any on going impact on his employability through the accident."

18. I am satisfied that the plaintiff has long standing degenerative changes to his lumbar spine consistent with the diagnosis of spondylosis. However, I am satisfied that these degenerative changes had not been productive of any symptoms prior to the motor vehicle accident. I am satisfied, and indeed it was not challenged, that the back pain came on immediately following the accident. In these circumstances I am satisfied on the balance of probabilities that the trauma of the motor vehicle accident, while not great, was sufficient to lead this longstanding degenerative condition to become symptomatic, and in these circumstances the ongoing symptoms are properly regarded as compensable. As the Full Court said in ACT Electricity Authority v Reid [1991] FCA 248; (1991) 29 FCR 500

"If an occurrence brings on symptoms of that which previously symptomless, that is sufficient, for it is the symptoms which are the disabling factor: see, for example, Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533",

(per Gallop, Davies and Spender JJ at 503).

19. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 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'."

20. In relation to general damages, I accept the plaintiff's evidence that he had not suffered from lower back pain before the accident, but has more or less continually had symptoms since. He is still able to perform most activities of daily living and domestic tasks, but has to be careful and avoid heavy lifting. He can still drive. He has however given up some recreations, such as running. While I accept that the ongoing pain is related to the underlying degenerative condition, as set out in the opinions of the defendant's doctors, I nevertheless accept Dr Keiller's opinion that the degenerative changes could well have remained asymptomatic but for the accident. It is well recognised that in these circumstances a plaintiff is to be awarded general damages to reflect the ongoing pain and suffering brought about by the effect of the accident in aggravating a pre existing asymptomatic condition. Taking all of the evidence into account, I would award general damages in the sum of $28,000. Given the plaintiff's age I would attribute one quarter of this to past loss, generating interest of $704, making a total award of $28,704.

21. Out of pocket expenses were particularised in the sum of $3,153.70. This included the sum of $449 for a therapy bed, which is supported by a note from the plaintiff's general practitioner and a receipt in that sum. I am satisfied that I should award the total amount claimed in respect of out of pocket expenses. No claim for future out of pocket expenses was particularised.

22. The plaintiff's claim for economic loss is based on the loss of an ability to engage in remunerative work of between 10 and 20 hours a week. The plaintiff's evidence is that he was working for 30 hours a week before the accident, but that he has been unable to work for more than 20 hours after the accident. No time sheets were produced to substantiate these hours. Some taxation records were tendered in support of his case. These show that he earned $13,234 in the tax year ended 30 June 1993, $14,767 in the year ended 30 June 1994, $11,577 in the year ended 30 June 1995 and $10,936 in the year ended 30 June 1996, the last full year of the operations of the former employer. These records show a reduction of income in the year following the accident (which occurred on 26 July 1994) and in following years, but it is not as dramatic as a reduction from 30 hours to 20 hours. I am satisfied, however, that the plaintiff has shown that his income was down, and it is consistent, at the hourly rate he has described, with him working about 28 hours a week in the year before the accident, and then falling to about 22 hours thereafter. Counsel for the defendant submitted that there were in all probability variations in the amount of available work for economic reasons, but in the absence of any evidence from the former employer this must remain speculation.

23. He has not worked regularly since the former employer relocated to New Zealand, but he has had some short term work, and has advertised to do alterations type tailoring work, but this has not been very successful financially.

24. The plaintiff's general practitioner has stated in his report that the plaintiff should work for limited hours of a maximum of 20 hours a week. I note that Dr Keiller, in his report of 23 March 1998 said

"He stopped work because the job ceased. He would be fit to work again as a tailor, with some restrictions. He must not lift over 15 kg. He must not be required to stand or sit in one position for too long. He should not stoop for prolonged periods, nor repetitively bend, or lift light weights. He should avoid the cross legged tailor's position."

Dr Keiller did not say that he would be restricted to less than full hours in the long term, and concluded that

"...a graded return to work should be supervised by his own doctor."

25. The defendant's doctors, who generally saw his degenerative condition as not accident related, agreed that he would be restricted in heavy lifting type work, but expressed a view in general agreement with Dr Keiller that he would be fit for the general duties of a tailor or other light work. Although his general practitioner takes a more restrictive view, I am satisfied on all of the medical evidence that the plaintiff is generally fit with his back condition to work as a tailor, with limitations on heavy lifting, and with the need to observe the restrictions set out by Dr Keiller. As his former employment was as an outworker, these restrictions could be observed.

26. I do accept, however, that the plaintiff has ongoing restrictions in relation to heavier employment. Apart from his work as an outworker tailor, his only other employment in Australia was as a seasonal labourer for City Parks, and this type of work is now closed to him. The plaintiff suffers from a considerable disadvantage in relation to the open labor market due to his limited language skills, and he acknowledged that he had some time out of work before the accident between his employment with City Parks and the outworking tailoring work.

27. I am satisfied that the plaintiff has sustained an ongoing economic loss, in that he is limited to lighter work, and this amounts to a not inconsiderable burden for a man with his limited language skills. A former occupation of labourer is now closed to him. I am satisfied that he could still perform his tailoring duties with the restrictions described by his medico legal specialist.

28. In relation to past loss, I would award the sum of $25,000 inclusive of interest. This sum is assessed on a global buffer, and I am mindful of the difficulties of this approach (Full Federal Court in Fry v McGufficke [1998] 1499 FCA (26 November 1998) ), but it is generally of the same order as an ongoing loss of around $100 a week, which is broadly in line with the plaintiff's submission that he has lost about 10 hours a week, although considerably less than his particularised claim, which is based on an ongoing loss of $307 a week.

29. In relation to future loss, I must again, given the difficulties of assessing a plaintiff who had remained in regular work until an employer closed down and who has not worked since, adopt a buffer approach, but in so doing I must pay particular attention to the view of Dr Keiller, the plaintiff's specialist, supported by the defendant's doctors, that there is no ongoing restriction in terms of hours of work for the plaintiff if he restricts himself to lighter duties, which could include outsourced tailoring work with appropriate attention to safety. He is however limited on the open labor market, and precluded on a permanent basis from a range of lower skilled manual work. This must sound as a buffer, given his age, which I would assess in the sum of $45,000.

30. This amounts to a total award of $101,857.70, which I consider to be appropriate in all the circumstances of this case.

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: 6 August 1999

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Romano & Co

Counsel for the Defendant: Mr R Seton

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 26 July 1999

Date of judgment: 6 August 1999