Novakovic v Ic Formwork Pty Ltd [2001] ACTSC 15 (23 February 2001)

Last Updated: 5 December 2002

Milan Novakovic v IC Formwork Pty Limited [2001] ACTSC 15

(23 February 2001)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Workplace accident - Soft tissue injuries - Aggravation of existing degenerative condition - No issue of principle.

Fry V McCufficke (1998) 1499 FCA

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Wilson v Piesley (1975) 7 ALR 571

No. SC 778 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 23 February 2001

IN THE SUPREME COURT OF THE )

) No. SC 778 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MILAN NOVAKOVIC

Plaintiff

AND: IC FORMWORK SERVICES PTY LTD

Defendant

ORDER

Coram: Master T. Connolly

Date: 23 February 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $221,453.59.

2. Defendant to pay plaintiff's costs.

1. This is a claim for damages for personal injuries arising from an industrial accident which occurred on 3 June 1998. As such it falls within the expanded jurisdiction of the Master contained in the recently amended Order 61A Rule 1 (a). In the event, liability was admitted, and the matter proceeded by way of an assessment of damages only.

2. The plaintiff worked for the defendant erecting and removing formwork during the construction of extensions to the Woden shopping centre in the Australian Capital Territory. This building project was nearing completion, and he had in fact been given a termination notice on the day before this accident. On 3 June 1998 he was carrying formwork frames, which he said weighed about 50 kilograms, with the frame slung though his neck and carried like a yoke when the frame caught on something on the building site and he slipped and fell. The frame fell on top of him. He made complaints of back and neck pain, and has not worked since, and claims to be unable to work again.

3. The plaintiff was born in 1960 in Yugoslavia, and came to Australia in 1983. He has worked throughout his time in Australia in labouring type jobs on building sites. He has had many employers, but he and his wife gave evidence that, when one job came to an end, he had no difficulty in finding another. He did however maintain a denial in cross examination that he had ever been retrenched, which was difficult to reconcile with his history and industry practice that formwork labourers lose their jobs when the contractor has completed the work. Mr Novakovic acknowledged that he was angry with his insurer over this claim, and he did seem reluctant to concede anything that could be seen as adverse to his case. He said that he was well known in formwork circles in Canberra and had never had long periods off work or on the dole, with the exception of some time off for an earlier industrial accident. He has limited English skills, and gave his evidence through an interpreter. I am satisfied that the plaintiff has had a good employment record, and although he would frequently lose his job with one employer as contracts came to an end on a particular site, he would find alternative employment with little difficulty.

4. In his early years in Canberra the plaintiff was a soccer player of some distinction, representing the ACT in its then representative team in the forerunner to the national competition. While his evidence tended to create ambiguity as to when his high level competitive soccer finished, I am satisfied that he remained involved in the game to some level up until the time of the accident. He said that he enjoyed inland fishing before the accident, and was very limited in his involvement now, only occasionally taking his children and not carrying anything, but in cross examination after it was apparent that the defendant held video surveillance material he said that he did carry his and the children's fishing rods, saying that it would be dangerous for the children to carry them. This again seemed to me to indicate a reluctance to disclose anything adverse to his case, and a lack of full candour. The plaintiff has described a very limited range of activities and lifestyle to doctors, describing an existence of going to appointments and lying around and resting, but video film of him driving, bending without apparent difficulty to get something form his car, and chatting with friends at a TAB outlet show no signs of apparent disability. He is also seen quite vigorously cleaning a front porch area. I am not satisfied that his complaints of pain are fully genuine, noting the discrepancies noted by various doctors, including Dr Dunlop, and the video material. His own doctors acknowledged that, in soft tissue type cases, and where a previously asymptomatic degenerative condition is rendered symptomatic, doctors are dependent on the patients subjective complaints of pain.

5. He presented to his general practitioner, Dr Pitcher, on the day after the accident. In his report of 27 July 1998 he said,

"On presentation on the 04/06/98 he was complaining of neck and lower back discomfort. On examination his neck movements were slightly less than full range on flexion external rotation and abduction. His back was tender over the right para lumbar region. His back flexion was 40 degrees and extension 10 degrees with restriction in rotation and abduction. A diagnosis of soft tissue bruising to the cervical and paralumbar region was made. He was prescribed NSAIDS, Panadeine Forte and advised to have physiotherapy and x rays of his cervical and lumbar spines."

6. Dr Pitcher said that degenerative changes only were apparent on x ray, and, "since there is no obvious bony injuries he should make a good recovery."

7. He was referred by his general practitioner to an orthopaedic surgeon, Dr Paul Smith, who reported to Dr Pitcher on 15 September 1998 that a CT scan confirmed the presence of an L5 pars defect with minor spondylolisthesis L5 on S1. He expressed the view in a report on 30 September that, "at the time of injury the pars defect has been irritated and the problem is an ongoing inflammation in that area." By November 1998 Dr Smith wrote to Dr Pitcher saying that the plaintiff, "appears to be gradually improving with time and some ongoing physiotherapy." This improvement plateaued, however, and in December 1998 Dr Smith sent him to Dr Ashman.

8. Dr Ashman reported to Dr Smith in February 1999 that in his view the radiology revealed a long standing pars defect at L5 but no associated spondylolisthesis. He concluded that,

"This man has a typical work related soft tissue injury to the low back and there may be an element of aggravation of his pre existing congenital abnormalities. I have explained to him and his wife that there is no indication for surgical intervention. Spinal fusion is not helpful for treatment of back pain, particularly in the setting of unresolved litigation issues. There is no spondylolisthesis, despite the radiologists report, and therefore instability is not an issue."

9. This opinion was repeated in a medico legal report to the plaintiff's solicitors in April 1999 when he said,

"My diagnosis of this man was of either a soft tissue injury to the lumbar spine or a temporary aggravation of his long standing lumbar abnormality......My prognosis is that he should see gradual resolution of his symptoms with further conservative treatment and the time frame for recovery is between 12 to 18 months. His return to work thereafter will depend on the residual level of pain, if any. In my opinion this man's current condition is more likely than not related to the subject accident."

10. From October 1998 to March 1999 the plaintiff was seen by Dr Speldewinde, a rehabilitation specialist. In a medico legal report of February 2000 he said that the plaintiff presented with,

"chronic pain features attributable to the cervical and lumbar regions. There are depressive features to his symptomatology, but it is noted that an assessment by a clinical psychologist in this practice, Lisa Bell, in January 1999 found no significant features of depression."

He recommended a pain management program.

11. Dr Speldewinde proposed some joint block injections, but the insurer denied liability and stopped payments from October 1998, and so he did not proceed with this. He was unable to satisfactorily explain, however, why he did not proceed with this treatment himself. The plaintiff had given evidence that financial pressures forced him to move from his home and to live with his parents in law after the accident, but he acknowledged in cross examination that his family had been considering and planning for such a move for some time with a view to putting the home that he had built, and which he valued at $450,000, on to the market, and reducing his mortgage debt and buying two smaller homes. The version that he had been forced to move out due to the accident had been told to some doctors, and added to the impression I gained of the plaintiff as a person who was seeking to maximise the impact of this accident.

12. From mid 1999 his general practitioner referred him to Dr Dunlop at the rehabilitation service at Canberra Hospital. In a medico legal report of17 January 2001 Dr Dunlop reported the plaintiffs presentation with significant pain and restriction of movement, but noted that on examination, "abnormal pain behaviour was evident with aspects of his physical examination including straight leg raising", but he said that he had no reason to believe that the plaintiff was consciously exaggerating his symptoms. He said,

"The contributors to the level of distress in this situation are likely to be due to a number of factors including ongoing pain from his injuries, but his social situation, the financial stresses, his anger associated with the uncertainty of his compensation situation all contribute to his current level of disability."

13. The plaintiff has also been seen by Dr Scott, an occupational physician, who provided a medico legal report to his solicitors in October 2000. Dr Scott expressed the view that the plaintiff sustained soft tissue musculoligamentous strain to his neck and back in the accident as well as aggravation to his pre existent congenital pars defect in his low back. He expressed the view that this would preclude him from repetitive and/or heavy physical work, but said that jobs such as a console operator at a service station would be suitable for him.

14. The plaintiff has also been examined by doctors for the defendant. Dr Schaeffer, a consultant orthopaedic surgeon, examined the plaintiff and reported in November 1998 and March 2000, and formed the view that while the plaintiff may have experienced some soft tissue injury in 1998 his presentation by March 2000 was no longer attributable to the accident. He felt the plaintiff was fit for his former duties. Dr Shaeffer noted inconsistencies in presentation in like manner to Dr Dunlop. Dr Shaeffer did not refer to or accept any aggravation in relation to the pars defect at L5.

15. Dr Billet is also an orthopaedic surgeon who examined the plaintiff for the defendant in March 1999 and April 2000. He accepted that the accident did give rise to an aggravation of the pars defect. He said in his March 1999 report,

"The incident of June 1998 was one wherein Mr Novakovic sustained a soft tissue injury to his neck and lower lumbar region and, in addition, he aggravated the pre existing pathology noted at the L5/S1 level. Noting his age of 38 years, one has to consider that he would probably have degenerative changes within the lumbar discs themselves, which would have been exacerbated. I would consider that the soft tissue injury and the temporary exacerbation , superimposed upon pre existing pathology, to have ceased and would attribute his current symptoms to the underlying pathology that exists in his lumbar region."

16. This view was maintained in his April 2000 report. He said that the plaintiff could not resume his unrestricted normal employment duties.

17. Dr Oates, an occupational physician, examined the plaintiff in September 1998 and March 2000 and reported to the defendant. He noted inorganic responses to certain tests, but accepted that the plaintiff sustained soft tissue injury to the neck and aggravation to the degenerative back condition. In his March 2000 report he said,

"He may have sustained a soft tissue injury to the neck and back with temporary exacerbation of the pre existing spodylolisthesis at L5 but the soft tissue injuries and exacerbation would have settled long ago."

18. On all of the medical material before me, I am satisfied that the plaintiff sustained soft tissue injuries to his neck in this accident, and also exacerbated and brought to symptoms a longstanding congenital degenerative condition of the pars defect at L5. On this point all of the doctors, with the exception of Dr Schaeffer, seem to agree. The issue in this case is thus essentially the extent to which this aggravation remains and is likely to remain attributable to the accident.

19. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesley (1975) 7 ALR 571 Barwick CJ said at 575:

"The trauma of the accident for which the appellant was responsible no doubt made a present readily of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not thee appellants negligence intervened."

20. In this case the plaintiff had a congenital condition of a pars defect at L5. It was put to Dr Pitcher in cross examination that,

"Where a person has a congenital condition such as was revealed in these scans, if they are going to engage perpetually in heavy work, heavy labouring work, then inevitably sooner or later they're going to have some problems in the lower back"

21. He generally agreed saying, "If someone has a congenital condition if they do heavy manual work it could then exacerbate it".

22. In this case I am satisfied that the workplace accident on 3 August 1998 produced soft tissue injuries to the plaintiffs neck, and also aggravated and rendered symptomatic a congenital defect in his lumbar spine. I am satisfied that this latent defect was always vulnerable to trauma and being rendered symptomatic, and that the type of heavy work which the plaintiff engaged in placed him at risk, but I am also satisfied that there is no evidence that he had come to symptoms. On all of the evidence I am not satisfied on the balance of probabilities that the ordinary course of work and life would have brought the plaintiff to these symptoms by the hearing date, and so I will assess him on the basis that his present condition is entirely attributable to the accident, not accepting the views of those defendant's doctors who assert that the effects of the accident have now wholly been overtaken by the ordinary course of his latent back condition. I am satisfied, however, that this is a condition that would have come to symptoms in the future.

23. 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'."

24. In respect of general damages, I assess the plaintiff on the basis of the ongoing pain caused by his soft tissue injury and the symptoms of his pars defect. I am satisfied that this does limit him in heavy lifting activities, as broadly described by Dr Billet. I am not satisfied on the balance of probabilities that the plaintiff's claims of extreme restriction of mobility and activity are justified, indeed I am satisfied that the plaintiff has overstated his complaints, and has presented to various doctors and to the court as grossly disabled. I am satisfied that, while he cannot engage in heavy activities, he remains able to enjoy walking and fishing, and is generally able to live an independent and unrestricted lifestyle. While he no longer plays competitive soccer, both ordinary passing of the years, his congenital lumbar condition, and the effects of some groin difficulties some years ago would all have had an impact on his sporting activities.

25. I would assess general damages at $45,000 with $30,000 attributable to past loss generating interest of $1,637.

26. Out of pocket expenses paid by the insurer amounted to $5,751.69. Further out of pocket expenses in the sum of $3,055.90 were particularised, and are allowable. I note that there has been evidence of only modest use of medications, although the plaintiff gave evidence of regular use at relatively high levels. In this case I have reservations about these claims, and will look to the evidence of the doctor's notes and pharmacy receipts, which show a picture of relatively modest use of medications. I allow past out of pocket expenses in the sum of $8,807.59.

27. The statement of particulars included a claim for future out of pocket expenses. There is medical evidence served which sets out a range of costings for recommended remedial treatment, particularly the pain management courses set out in Dr Speldewinde's report, and it seems to me that a buffer award of $5,000 for future out of pocket expenses is appropriate.

28. In respect of past wage loss, the plaintiff claims for total wage loss to the date of the hearing. It seems to me that this is appropriate, given that I have found that his present presentation, which would preclude him from his former heavy employment , is attributable to the industrial accident. The claim has been based on 134 weeks from the date of the accident, and is based on a wage rate of $625 per week, which was calculated by taking the plaintiff's last two years of earnings, and then dividing this by 48 weeks to take into account some periods between jobs. This approach was criticised, rightly it seems to me, by counsel for the defendant. The plaintiff acknowledged that the pattern of employment in the industry involved periods between jobs, but it was his case that, as a good worker, he always found another job. It seems that, to take the past two years net income and to reduce this for periods out of work is to assume that he would have been in constant stable employment but for the accident, which is contrary to the evidence. Taking the last two years figures as calculated by counsel for the plaintiff, but spreading this across 52 weeks, gives a net loss of about $580. This results in an award for past wage loss of $77,720 which I award. I note that compensation payments in the sum of $16,905 had been paid, and this must be taken into account in determining interest on the past wage loss, which amounts to $8,289, making a total award for past economic loss of $86,009.

29. The future wage loss claim is particularised on the basis of total incapacity to normal retirement age. I am not satisfied that this is established. Even on the plaintiff's own medicine, Dr Scott identifies service station console operation as a job which the plaintiff could fill. The plaintiff has made no enquires in relation to future employment. I am satisfied that his accident related condition has precluded him from his formwork to date, but I am not satisfied that his present condition disables him from any future work. Moreover, I am not satisfied that the accident is likely to be the ongoing cause of any exclusion as the years go by, as his latent condition could at any time have been brought on by heavy activity, and would have brought him to the same symptoms. This is the evidence of the defendant's doctors, and is consistent also with Dr Ashman's 1999 report which referred to a, "temporary aggravation of his longstanding lumbar abnormality", and Dr Pitcher's agreement in cross examination that the pars defect could be brought to symptoms with heavy manual work. Due to this congenital lumbar condition the plaintiff is not a man who would have been able to engage in heavy labouring work to normal retirement age.

30. I am satisfied that with appropriate pain management courses as recommended by Dr Speldewinde and provided for in respect of future out of pocket expenses, the plaintiff will have a range of activities open to him, limited only by a restriction on repeated heavy lifting. He would have been limited to such activities in any event. I am satisfied taking all of the evidence into account that this is an appropriate case, bearing in mind what the Full Court of the Federal court said in Fry V McCufficke (1998) 1499 FCA for a buffer to reflect a limitation on his future earning capacity from the declining effect of the industrial accident in 1998. A buffer of $75,000 is the equivalent to an ongoing loss of $100 a week to age 60, and seems to me to be appropriate in all of the circumstances of this case.

31. This amounts to a total award of $221,453.59 which I consider to be appropriate in all the circumstances, and award, with costs.

I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 23 February 2001

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Snedden Hall & Gallop

Counsel for the Defendant: Mr Stretton

Solicitor for the Defendant: Minter Ellison

Date of hearing: 31 January 2001, 1 & 2 February 2001

Date of judgment: 23 February 2001