Stankovic v Banfield [2000] ACTSC 8 (11 February 2000)

Last Updated: 29 February 2000

Stankovic v Banfield [2000] ACTSC 8 (11 February 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury to neck and back - Ongoing pain - Chronic Pain Disorder - Depression - No issue of principle.

No. SC 170 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 11 February 2000

IN THE SUPREME COURT OF THE )

) No. SC 170 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STOJAN STANKOVIC

Plaintiff

AND: MICHAEL BANFIELD

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 11 February 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $233,474.65.

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 6 February 1997 at the intersection of Yamba Drive and Launceston Street at Phillip in the Australian Capital Territory. The plaintiff was stationary at the intersection and was hit from behind by a truck and trailer driven by the defendant. Liability is not in issue, and the matter proceeded before me as an assessment of damages only.

2. The plaintiff was born in southern Serbia in 1953 and was 43 years of age at the time of the accident. He was educated in Serbia to tertiary level, achieving an Associate Diploma in Mechanical Engineering. Apart from a period of compulsory military service, he worked as a draftsman in an industrial plant until migrating to Australia in 1988. He married in 1982 and he and his wife have two children, both boys, born in 1983 and 1985.

3. On coming to Australia he did not work for the first year and a half, concentrating on undertaking adult English language classes. He then found employment as a part time cleaner, as well as undertaking part time and contract drafting jobs. Some of this work was for a Queanbeyan air conditioning company, Benmax Pty, and this eventually led to an offer of full time employment with that company which he took up in May 1996. He was employed as a draftsman, drawing up plans for commercial and residential air conditioning installations, and making site inspections. His salary was $584 per week net.

4. The plaintiff had been involved in three minor motor vehicle accidents prior to this incident, in 1988, 1994 and 1995.He says that he had some minor injuries in the first accident which settled after three or four weeks. No claims for injuries were brought in respect of any of these accidents, although property damage claims were lodged in respect of the latter two incidents.

5. In the accident the plaintiff, who was driving a four cylinder Mazda sedan, was struck from behind by a truck. His car was thrown four or five metres forward, and the seat back was broken, and he found himself lying in a nearly horizontal position. His car was a write off, and I am satisfied that this was an impact of considerable force. He says he felt only shock at the time, but felt pain in his neck, back and knee after a few moments. He also had bruising to the elbow, which improved after six or seven months. His right leg and knee was also bruised, and improved after two months. He makes complaints of ongoing neck and back pain which have persisted since the accident. The plaintiff has not returned to work since the accident.

6. He was taken by ambulance to Canberra Hospital, and given a cervical collar and released the same day to the care of his general practitioner. He says he had headaches at that time, which have persisted. The hospital notes show that a diagnosis of soft tissue injury to the neck was made at the time. All radiological investigations have shown no abnormalities in the cervical region, and a shallow disc protrusion at L5 S1. He continued to wear the cervical collar until given a soft collar, which he now wears most of the time, despite advice from his rehabilitation specialist that it was no longer necessary from mid 1997.

7. His general practitioner referred him for physiotherapy, which proved not to be of help, and then referred him for psychological assessment .The psychologist, Val Gould, reported in December 1997 that, after assessments in March and August 1997 he formed the view that Mr Stankovic was suffering from pain disorder associated with both psychological factors and a general medical condition. He noted that the plaintiff was very guarded in all movements. He recommended a pain management programme and counseling for the plaintiff's anxiety and injury behaviour.

8. He was examined by Dr Danta, neurologist, for a medico legal report on 31 July 1997. He reported complaints of ongoing neck and back pain and some numbness in the arms. Dr Danta said

"Essentially the patient has sustained soft tissue injuries to the neck and back, and the spinal pain together with the sensory symptoms in the arms and the headache are a direct consequence of the injuries he sustained at the time of his accident. It is relatively early to be certain of the prognosis, and this will be determined by his response to treatment. The fact that the pain is still continuous is a bad prognostic sign since the first improvement of continuous pain is interrupted pain, but even then often it takes a long time for the pain to settle if it does settle at all."

9. Dr Danta again examined the plaintiff in July 1999. He found ongoing complaints of pain and complaints of severe restriction of back and neck movements and inconstant weakness in the arms and legs, but no muscle wasting. His conclusion was

"I think that the neurological signs are not organic and are determined by his chronic pain state. My impression is that he has adjusted poorly to his chronic pain and disability. His condition can now be said to have stabilised and it is most unlikely to improve."

10. Reports from Dr Stevenson, who examined the plaintiff for the defendant in July 1998 and June 1999 confirm the plaintiff's ongoing complaints of neck and back pain. Dr Stevenson reported that the plaintiff displayed extremely limited ranges of movement on formal examination, but that he observed a greater range of movement. He expressed the view that the plaintiff was not being frank in his complaints. Dr Andrews, who examined the plaintiff for the defendant in July 1998 also noted significant restrictions in movement saying

"This fellow has rather severe abnormalities on physical examination - out of proportion to any of the pathology revealed neuro-radiologically."

He formed the view that

"...there is an element of amplification of the symptomology."

11. Reports were tendered by the plaintiff from Dr Knox, a consultant psychiatrist. He said in his most recent report of November 1999, which has the benefit of having been prepared after consideration of all of the defendant's medico legal reports, that the plaintiff remained incapacitated by pain

"...although I am now of the view that there is significant psychological disturbance on his part inevitably amplifying his pain."

He said

"I broadly agree with Dr Danta that a good deal of Mr Stankovic's condition now is `determined by his chronic pain state'. As Dr Andrews notes, there is no doubt a `functional' component caused by the increasingly severe psychological repercussions of the accident. I believe that Mr Stankovic can be seen as increasingly suffering a moderately severe degree of depression, best described, according to the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, as Adjustment Disorder with Depressed Mood."

12. Dr Knox described in his report how he believed a person in this condition would complain of pain on the first indication of symptoms when under formal examination, but may be able to exhibit a greater range of movement. He said

"I am also of the view that individuals being examined by a doctor are apprehensive about the likelihood of pain when they are not in control of their own movements. They are inevitably more tense under such circumstances than when they are free to move knowing they can quickly and actively modify their movements in the event of pain."

13. Dr Knox concluded

"While Mr Stankovic may be exerting some `voluntary restriction' as Dr Stevenson claims, I do not believe that this can be assumed to be done on Mr Stankovic's part to deceive. I have offered my explanation for this behaviour above. Abnormal illness behaviour is but another name for psychological disturbance in association with injury or illness, and again does not imply malingering."

14. It is of course a matter for the court, and not for an expert witness, to determine whether a plaintiff's claim of incapacity is truthful, and this should not be the proper subject of an expert medical report. In Forrester v Harris Farm Pty Ltd [1996] ACTSC1 the Chief Justice warned that

"The expert's function is to express an opinion based on the assumed facts, not to express a view on whether the assumptions are justified (see Clarke v Ryan [1960] HCA 42; (1960) 103 CLR 486)."

15. It is proper for an examining physician to draw attention to discrepancies between claimed ranges of movement or disability on formal examination, and observed activity. Video surveillance material can also be of assistance in determining the veracity of such claims, and in this case film was shown of the plaintiff driving his son to soccer games and watching the games, in which he is seen to be observing the games with no obvious gross disabilities, but with no sudden strenuous physical actions either.

16. The defendant has not tendered any evidence from psychologists or psychiatrists. The plaintiff was examined by Dr Samuel, a psychiatrist, for the defendant in August 1999, and no report has been served. In such circumstances it is open to me to draw the inference that such a report would not have assisted the defendant's case. The reports from the psychologist, and more particularly Dr Knox, provide in my judgment a coherent and unchallenged explanation for the apparently disproportionate level of the plaintiff's claimed disabilities arising from what remains a soft tissue injury to the neck and back. On the evidence before me I am satisfied that the plaintiff has suffered a psychological sequelae to this injury, and this has resulted in an adjustment disorder. I find that the plaintiff is extremely guarded in his movements and activities, and that he has, as was urged upon me by the defendant, persisted in wearing his soft collar - described by Dr Stevenson as a "badge of injury" when there is no physical need for this. I am satisfied, however, that this is attributable to his psychological condition, for which he must be compensated.

17. I note that the psychologist recommends a pain management course to improve the plaintiff's ability to cope with ongoing soft tissue pain. This was also recommended by Dr Knox in his first report. The plaintiff has been on anti depressant medication prescribed by his general practitioner, with some benefit. Dr Danta shared his general practitioner's view that no further medical intervention was appropriate. I accept Dr Danta's view that the plaintiff's present predicament is determined by his chronic pain state.

18. The principles to be applied in determining compensation in personal injuries cases have 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'."

19. In this case I assess the plaintiff on the basis of ongoing complaints of pain from soft tissue injuries to the neck and back, leading to a significant psychological sequelae which now presents as a chronic pain state with the plaintiff presenting as grossly disabled, described by Dr Knox as a moderately severe degree of depression,

"...best described as adjustment disorder with depressed mood."

I am satisfied that this provides an explanation for the plaintiff's complaints, and on this basis I am not persuaded that, despite Dr Stevenson's observation, the plaintiff has been deliberately malingering. I note that the evidence shows that the disability payments which the plaintiff had been receiving were cancelled with effect from September 1998. I note Dr Knox's comments in his last report that

"I see no grounds on which Mr Stankovic is motivated to perpetuate the chronic state of invalidism he presently manifests. He sees that his family is severely disadvantaged by his condition, and given the state of his personality and his capacity to work and assist his family previously I see not basis on which Mr Stankovic would choose to live the unhappy life that he does now, and inflict great distress on the members of his family."

20. In relation to general damages, I assess him on the basis of the conditions described above. I note that the plaintiff has cut back on gardening and sporting activities, but does walk his dog and follow his son's sporting activities. He drives, and was observed in the surveillance video material to have no obvious gross restrictions on movements. I find that his psychological condition, once accepted as genuine, should be receptive to pain management techniques recommended. I assess general damages in the sum of $45,000, with $30,000 attributable to past loss, generating interest in the sum of $1,800, resulting in a total award of $46,800.

21. Out of pocket expenses for the past were claimed in the sum of $14,842.65. This includes a significant sum of some $5,000 for therapeutic massage which the plaintiff has received on a regular basis. There is some support for this in the medical reports tendered by the plaintiff, although the practice is criticised by Dr Stevenson as being counter productive. The clearest ongoing recommendation is from the clinical psychologist. I am satisfied that this therapy has been reasonable in all of the circumstances, and would award this fully for the past.

22. In respect of the future, I am not satisfied that massage at an ongoing rate of $30 a week is reasonably necessary. It has been utilised in the past with little real benefit, and there is no clear medical justification for its continuation. There is however a clear need for a programme of pain management and vocational rehabilitation. I am satisfied that this is necessary and appropriate, and indeed will contribute significantly to returning the plaintiff to the workforce. The evidence suggested a cost of 20 to 25 sessions of pain management counseling at a cost of $155 a session, and a vocational rehabilitation programme costing around $1,000. Medication costs have been running at the rate of $11 a week for anti depressant medications and pain relief by way of non prescription paracetamol. There is likely to be a need for this for some time into the future. I award the sum of $7,000 in respect of future out of pocket expenses.

23. The plaintiff's claim in respect of economic loss is particularised as a claim for total incapacity for the past and the future, based on his former earnings of $584 a week net. It is the fact that he has not returned to work since the accident, although there have been several attempts at a graduated return to work. In cross examination the plaintiff said that he did not feel that he was ready for work at the time. The defendant tendered a report to his general practitioner from his rehabilitation specialist, Dr Speldewinde, dated 1 September 1997 in which he reports that the plaintiff did not want to return to work. He notes that

"...clearly a large component of his current disability is related to non structural troubles. Our occupational therapist has liaised with the workplace and they are quite happy to have him back to work on reduced hours and duties, and will even provide him with some appropriate workplace modifications, namely a slope board and footstool, and when I suggested he start back at work next week he had many reasons why he could not do so, and they weren't all directly related to his pain problem."

24. Such a report from the plaintiff's treating specialist would normally invite considerable scepticism in relation to a claim of total disability to work, but in this case there is uncontradicted evidence from the psychiatrist and psychologist that establishes why the psychological sequelae to this soft tissue injury has prevented an effective return to the workplace to date. Dr Speldewinde's observation that

"...a large component of his current disability is related to non structural troubles"

is thus explained satisfactorily.

25. I am satisfied that the ongoing pain and psychological effects have effectively precluded the plaintiff from utilising his economic capacity to date, and I would award him the amount claimed to the date of decision, being effectively three years at $584 net per week, or $91,104, which, with interest according to the Practice Direction on a periodic loss of $13,728, amounts to an award of $104,832.

26. The claim for future loss is particularised as an ongoing claim to normal retirement age, but counsel for the plaintiff acknowledged that there was some hope for retraining and so some discount ought be applied to this. His submissions, which were in the alternative, were then that, as a minimum, I should be satisfied that the plaintiff will be effectively unable to work for a period of five years, and any award should be of this magnitude.

27. The evidence presented from the defendant is that, on physical grounds, there is no real impediment to the plaintiff re entering the workforce. I accept that in his former job as a draftsman for an air conditioning firm there were requirements to get in to awkward confined spaces, and this would present problems, but I am broadly satisfied that his soft tissue injuries alone represent no major impediment for the future. It is his psychological condition, which I have accepted on the uncontradicted evidence of Dr Knox and Ms Gould, which has presented the problem to date and which has explained the plaintiff's less than enthusiastic approach to rehabilitation to date. I am satisfied that, with the appropriate counseling as recommended, and provided for in this award, and with the acknowledgement of the existence of this problem to date, there are real prospects for the plaintiff's return to his former profession, perhaps in a job with some restrictions which would preclude getting into the confined spaces required for preparing drawings of air conditioning plant. I note that his present treating general practitioner, who has had the most contact with the plaintiff, said

"Mr Stankovic could probably go back to work to a job where he could get regular breaks and not do things that involved him lifting things above his shoulder. However, he has had a trial of a return to work in the past and this failed because of his pain. If Mr Stankovic is unfit for work, then it will most likely be due to continuing neck pain."

28. This opinion from his treating general practitioner is quite inconsistent with an indefinite ongoing disability which would preclude any return to work.

29. It is not possible to be precise about the timing of his return. There is an element of speculation necessarily involved in any prediction of future earning loss, and this is rendered particularly difficult in a case such as this where the defendant's doctors assert that there is no barrier to employment, and the plaintiff's medicine points to a chronic pain and a resultant psychological barrier. In such a case, a buffer approach is often appropriate. An alternative approach is to look at a return to work after a year of part time work. An award of $60,000 would represent a further year's full time loss of earnings, and about two years' further half time work loss. Such an analysis satisfies me, in all of the circumstances of this case, that it would represent an adequate and appropriate award, viewed as a global buffer, but referable to an actual loss based on a further period of full loss of earnings followed by a gradual return to full time work and earnings.

30. This amounts to a total award of $233,474.65 which I consider to be appropriate in all of the circumstances of the case and award, with costs.

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: 11 February 2000

Counsel for the Plaintiff: Mr G Richardson SC

Instructing Solicitors: Romano & Co

Counsel for the Defendant: Mr S Pilkinton

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 13 December 1999

Date of judgment: 11 February 2000