Zamora v Cooper [2001] ACTSC 20 (16 March 2001)

Last Updated: 11 June 2002

Oscar Zamora v Stephanie Cooper [2001] ACTSC 20 (16 March 2001)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injuries - Pre existing degenerative condition - No issue of principle.

Griffiths v Kerkemeyer (1977) 193 CLR 161

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

Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283.

No. SC 102 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 16 March 2001

IN THE SUPREME COURT OF THE )

) No. SC 102 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: OSCAR ZAMORA

Plaintiff

AND: STEPHANIE COOPER

Defendant

ORDER

Coram: Master T. Connolly

Date: 16 March 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $206,979.85.

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 31 May 1998 at the intersection of Ginninderra Drive and Florey Drive at Charnwood in the Australian Capital Territory. The defendant failed to give way to the plaintiff, and liability for the accident has been admitted, and the matter proceeded before me as an assessment of damages only. The plaintiff sustained injuries to his knees, ankle and neck and back as a consequence of the accident.

2. The plaintiff was born in El Salvador in 1957. He completed his secondary education to the equivalent of year 12, and was embarking on a university education when that country became destabilised as a result of civil war and a military coup. The university was shut down, and he completed technical standard qualifications in engineering and business administration while working as a civil servant. By 1988 he was undertaking part time university study and working in the university administration when his family's political activities brought them to the notice of right wing death squads then prevalent in El Salvador. His family applied for and were granted asylum in Australia at short notice, and they arrived here in June 1988. The plaintiff arrived in Australia with his parents and his wife and two children, then aged 10 and 7, and they have had a subsequent child here.

3. Although he spoke some English on arrival he devoted himself to improving his English by undertaking study at TAFE. He obtained a temporary position as a gardener at the National Botanic Gardens, and this position was extended on a number of occasions. In 1989 he obtained work as a building worker using a jack hammer to remove the facade on a major building site at Woden, and this repetitive work lead to the development of a carpel tunnel syndrome which resulted in his being off work on workers compensation for some time.

4. He obtained work as a courier for Greenpeace in 1993. He had been a keen soccer player in El Salvador and on his arrival in Australia, and this had lead to the development of arthritic changes to his right knee and ankle which resulted in an arthrotomy and ligament reconstruction in 1993. In 1994 he obtained a position as an administrative assistant in the office of the Deputy Chief Minister of the Australian Capital Territory. When this position came to an end, he found employment as a security officer.

5. Mr Zamora said in his evidence that, while it had been his intention in El Salvador to obtain his tertiary qualification in chemical engineering and work in a senior role in industry or management, he accepted that on arrival in a new country with a new culture he would have to start his life again. He impressed me as a man with a strong determination to work hard and provide for his family despite the challenge of arriving in a new country as a political refugee.

6. In 1996 he was working as a security guard for a private contractor providing office security for the Defence Department, and had turned from competitive soccer playing to refereeing as a consequence of his knee and ankle difficulties. He was diagnosed that year with a lung cancer, and he says that the original prognosis was that, due to the position of the cancer relative to his major blood vessel, it could be inoperative. He underwent a course of chemotherapy, which reduced the size of the tumour, and subsequently underwent a lobectomy, which seems to have been fully successful. He is very conscious of the fact that this had been a narrow escape for him. He worked on his rehabilitation, and was able to make a full return to work, and hoped to return to full soccer refereeing duties in time. His work at this time involved quite extensive foot patrols around defence buildings after hours, and so required a degree of fitness.

7. The accident occurred as he was traversing a roundabout and the defendant came through a give way sign and collided with the left hand side of his car. He noted immediate pain in his right knee and leg, as well as his shoulder. The accident occurred in the evening, and he was able to be taken home, and attended on his general practitioner, Dr Berenson, the next morning. Dr Berenson has been his longstanding family general practitioner.

8. He reported that the plaintiff had grazes to his right knee and ankle, and was tender in his cervical , thoracic and lumbar regions. Dr Berenson sent him for x rays, which were clear, and referred him to physiotherapy. He also reported pain in his thumbs, as a consequence of the impact of the steering wheel. On 15 June 1998 Dr Berenson diagnosed a reactive depression with sleep disturbance, and put the plaintiff on Aurorix, and anti depressant. By this time the plaintiff had returned to full duties at work.

9. He continued to experience pain in his knees and right ankle, as well as his thumbs, and in August 1998 he was referred to Dr Roberts, the orthopaedic surgeon who had performed the 1993 procedures on his right knee and ankle, for treatment. He recommended arthroscopic examination of his right knee and right ankle.

10. On 12 December 1998 Dr Roberts performed this surgery. He found a medial meniscal tear in the right knee, which he said looked like a degenerate tear. He said that there were no changes to indicate that the tear had been caused by the accident, but he accepted that it probably was accident related, and this is accepted by the defendant. He has continued to experience problems with his right knee, and in a report to Dr Berenson of 29 February 2000 Dr Roberts said that he believed that his knee complaints were no longer related to the motor vehicle accident, but now related to his pre existing degenerative condition.

11. His right ankle was also arthroscoped on 12 December 1998, and Dr Roberts removed a spur at the site of the old arthroscopy. He accepted that this was accident related. After these procedures he was released from hospital and returned home, with obvious significant restrictions on mobility, and was cared for by his wife.

12. He continued to complain of pain in his left knee, and consulted Dr Roberts in February 1999. He was reluctant to go to arthroscopy until the right knee and ankle had resolved. In August 1999 Dr Roberts performed a left knee arthroscopic chondroplasty at John James Memorial Hospital. This procedure has been accepted by the defendant as being accident related.

13. In reports both to Dr Berenson and to the plaintiff's solicitors, Dr Roberts, who is the plaintiffs' treating orthopaedic surgeon, and who has been treating him for degenerative changes to his right ankle and knee since before the motor vehicle accident, has expressed the view that the accident aggravated this condition for a period, necessitating the arthroscopic procedures in December 1998 to his right knee and ankle and to his left knee in August 1999. Dr Roberts has expressed the view, which is not challenged by the defendant, that the accident has also caused problems with the plaintiff's thumbs, which will require further surgical treatment. The plaintiff says that he wants to have this done, but he is concerned that, having had to take so much time off work for operative procedures to date, he does not want to risk losing his security officer job by taking further time off. I accept that this is an accident related condition, and will require further treatment.

14. In May 2000 Dr Roberts performed a further arthroscopy to the plaintiff's right knee and ankle, but expressed the view that the degenerative condition that was revealed was not accident related, and I accept this view, effectively holding the defendant's responsible for the aggravation of the plaintiff's degenerative knee and ankle condition from the time of the accident to early 2000, by which time I find, on the basis of the opinion of his treating surgeon, that the effects of the accident had ceased, and his complaints were now related to the underlying degenerative condition that had been present, and had lead to surgery, from before the accident.

15. The plaintiff says that his knee and ankle condition, while discomforting, does not preclude him from working, and is not a major difficulty.

16. His major complaint now is of neck and back pain. He has made consistent mention of these complaints since the accident, and I accept that they are accident related. The defendant puts some significance on a report from Dr Sunderland, who is the plaintiff's treating specialist in respect to his lung cancer. The plaintiff has, understandably, been keeping a close eye on his health following this condition, and said that he is careful to report any difficulties or pains anywhere in his body to his cancer specialists, in case they should turn out to be of significance. In progress notes of 23 September 1998 Dr Sunderland said, "Mr Zamora was involved in a motor vehicle accident a few months ago and since then he has had some pain in his back, knees and right ankle." I was invited to draw from this the inference that the plaintiff was clear of neck pain at that time. I note, however, that reports from his physiotherapists refer to treatment for cervical thoracic pain in July 1998 and late 1998, and Dr Berenson's reports of June 1998 and May 1999 both refer to ongoing complaints of neck pain. I am satisfied that the plaintiff has made regular complaints of neck pain as well as back pain.

17. There is general agreement between the plaintiff's and the defendant's doctors that the plaintiff sustained a degree of soft tissue injury to his neck in the motor vehicle accident which has aggravated a degenerative condition of his spine. There is radiology in the form of an MRI of the lumbar spine of 24 January 2000 indicating some degeneration at L4/L5. While the plaintiff reported to the various doctors that he had previously been symptom free, the notes of Dr Berenson do reveal a number of presentations in the years preceding the accident with apparent complaints of neck and back pain . I am satisfied that the plaintiff did have some symptoms, indicating that the degenerative condition identified at MRI at L4/5 was already causing some minor problems, but I accept that the accident has aggravated this, and that he has sustained soft tissue injuries to his cervical spine which are still producing some symptoms.

18. In his evidence he maintained that these symptoms were continuous, whereas he has reported to various doctors that they are more in the nature of persistent and intermittent. He did however say that the pain was not present every minute of every day. I was generally impressed by the plaintiff as a truthful witness, but on all of the evidence I find that the neck and back symptoms are persistant and intermittent, although producing genuine difficulties for the plaintiff.

19. The plaintiff has endeavoured to remain in the workforce throughout his difficulties. His work as a security guard was he says giving him problems for some time with the need for regular long walks, but he was able to persevere on frequently long hours throughout 1999 and 2000. He realises that, with his combination of accident related problems and his underlying degenerative condition in his knee and ankles, this type of work is not appropriate for the long term, and since June 2000 he has been undertaking a course of study at the Canberra Institute of Technology which will lead to a Diploma in Applied Science (Conservation Ecology) and which he hopes will lead to employment as a laboratory worker. He says that he expects that this type of employment will pay at least was well as employment in the security industry. This seems to me to amount to an admirable attempt to mitigate his losses, and the defendant concedes that it is appropriate to make an award to reflect the cost of this course. While he has only undertaken one full semester of study, he says that he completed this successfully, with credit level marks.

20. He has changed his employment, and now works Mondays to Thursdays from 5 pm to 8 pm as a security guard, for the same employer, but at the Australian Catholic University at Downer. This position does not require him to undertake the same type of extensive foot patrol work that he had to do at the Defence Department. He also works on the weekends as a security guard at the entrance check point to the premises of TRANSACT, an information technology and communications company in Canberra.

21. I assess the plaintiff on the basis that the motor vehicle accident caused injuries to his right ankle and both knees that have necessitated arthroscopic surgery. I accept the view of his treating orthopaedic surgeon, however, that the effects of the accident in relation to his ankles and knees is now past, and the underlying degenerative condition that was present before the accident is now the source of what problems he experiences in these areas, which he says are minor. I accept that the accident also has caused ligamentous damage to his thumbs, which will require further surgery. I accept that he has also suffered soft tissue injuries to his neck and lumbar spine, which has aggravated degenerative changes to his back which had produced some symptoms before the accident.

22. I accept also that the accident has created some depressive illness, which has resulted in the plaintiff being prescribed anti depressants since the accident. The plaintiff does not say that his present condition is solely related to the accident, and the report from his treating psychiatrist, Dr Fridgant, refers to a number of factors which has lead to the development of this depressive condition, being his background as a political refugee fleeing imminent violence in El Salvadore, his lung cancer, and the more recent death of his father, and illness of his mother. Dr Fridgant notes that, as the oldest brother, he takes on considerable responsibility for the wellbeing of the family. Despite these factors, frankly identified in his report, I accept Dr Fridgant's conclusions that the accident was a factor of some significance in bringing the plaintiff to psychiatric care for his depressive conditions, which both the plaintiff and Dr Fridgant consider to be responding well to medication.

23. I accept that the plaintiff's knee and ankle condition resulted in considerable mobility restrictions after surgery. I note, however, that these areas are now the subject only of degenerative changes, which had lead the plaintiff to surgery before the accident, and had lead to him giving up competitive soccer, although he was returning to some refereeing. I accept that this is now precluded to him, but find that this would have occurred in any event. I accept that his neck and back cause him intermittent disabling pain, and that this has also impacted on his lifestyle, but I accept also that he has been able to work long hours in the recent past in his demanding job as a security guard despite the presence of pain.

24. 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'."

25. In respect of general damages, I assess the plaintiff in the sum of $80,000, reflecting his need for two surgical interventions to his knees and ankles, as well as the need for future surgery to his thumbs, the ongoing neck and back pain attributable to soft tissue injuries as well as aggravation to degenerative changes in the lumbar spine, and the contribution his accident related injuries have had to his depressive condition, which is responding well to treatment. I attribute $60,000 to past loss, generating interest of $3,357, leading to a total award of $83,357.

26. Out of pocket expenses were agreed arithmetically in the sum of $25,545.85 which I award. A claim is also made in the sum of $5,000 for the cost of his retraining at the CIT, and I am satisfied that this is an appropriate claim, and award this sum.

27. Future out of pocket expenses have been claimed in respect of the treatment needed for his thumbs. While a precise cost of this operation could not be provided, beyond the surgeons fees estimated by Dr Roberts at $1,500, I am satisfied that the sum of $5,000 would be appropriate to cover this procedure, which the plaintiff will undertake in the next few years.

28. Ongoing medication expenses are claimed on the basis of his pain relief and anti depressant medication at about $10 per week. The cost of orthotics has been claimed, at $2 per week, but I am not satisfied that this can any longer be put down to the effects of the accident, and I make no award under this head of damages. Dr Fridgant has recommended ongoing treatment, but I am not satisfied that this will persist for any time due to the effects of the accident. I am satisfied that he will continue to need to take medication for his neck and back pain for some time, as well as anti depressant medication. There will be some further reviews by his psychiatrist and his general practitioner, and some physiotherapy for flare ups. I award the sum of $12,000 by way of a general buffer for future out of pocket expenses.

29. In respect of past economic loss, a report was tendered from a forensic accountant. Such reports were commonly presented in personal injuries cases some years ago, but after criticism from a number of members of this court, including myself, they have ceased to be widely used. They rarely assist, as in almost all cases, as in this case, they are premised on assumption that need to be established on the evidence, and amount only to an arithmetic calculation which could just as easily be done by counsel and the court, particularly when appropriate care has been devoted to the preparation of the statement of particulars. Voluminous reports from economic loss consultants lend an air of scientific certitude to what is in fact the difficult task of making an assessment of future loss. It should not be assumed that in all cases the cost of preparing such a report would be allowable on taxation.

30. I should add that, in this case, there is a justification for recourse to such a report, as the insurer made an advance on damages to the plaintiff, which had been, in error, declared by the plaintiff as part of his taxable earnings. This was an honest error, and of course an error adverse to his interest. The report does set out the history of this matter, and documents the exchanges with the Taxation Commissioner which has resolved the matter, and makes the appropriate adjustments to show his real past earnings. This would otherwise have had to have been proved by other means in the face of the taxation assessment that included the advance.

31. The economic loss report has been based on the assumption that the plaintiff, who was working at the level of a security officer grade 1 at the time of the accident, would have been promoted to a higher level. In support of this the plaintiff gave evidence that his superviser's position became vacant, and he had been unsuccessful in his application for this position. While I can accept that the plaintiff honestly believes that his accident related disabilities was the reason for this, it is necessary to prove such a loss of a promotion chance on a firmer basis than the mere belief of the unsuccessful candidate. There were obviously many potential applicants for such a position and the plaintiff's physical limitations due to his knee are not entirely accident related. The loss report makes no alternative set of calculations, and so is in a sense flawed from the beginning, by being based on an assumption of a promotion that I find was a chance, but not a matter that I find, on the balance of probabilities, would have occurred but for the accident. The economic loss report does state that there is about a $15 a week difference between the two levels of security guard, but it is not made clear whether this is net or gross.

32. The report also makes the assumption that but for the accident the plaintiff would have earned on average $20 a week from refereeing soccer matches. This goes beyond the evidence the plaintiff gave of the earnings he was receiving, and in any event makes the assumption that the accident alone would have been responsible for this, whereas I am satisfied from Dr Roberts' reports that his arthritic changes to his knees and ankles would have made ongoing refereeing at this level problematic.

33. Loss of earnings are claimed, on the basis of these reports, at $38,816 to the date of hearing. I am satisfied that the plaintiff has had to cut back on his hours of work as a security guard as a result of his accident related conditions, and I accept that this must be reflected in an appropriate award of damages. The economic loss report does not, however, provide a reliable answer, as it is based on two assumptions, of a promotion and ongoing soccer refereeing, that I am not satisfied have been made out to the requisite standard. I must thus discount the figure. In respect of past economic loss, I award the sum of $35,000, making the discount in respect of the loss of a chance of promotion, and to reflect my finding that his soccer earnings did not amount to $20 per week, and in any event would not have continued but for the accident.

34. The plaintiff has received payments in respect of past economic loss from the insurer in the sum of $24,162.24 for the period from December 1998 to March 2000.This must be taken into account in the calculation of interest for past economic loss which I calculate as $3,077. I understand that these were in the nature of an advance on damages, and so no Fox v Wood issue arises.

35. The particularised claim for future economic loss, supported by calculations in the economic loss report, is on the basis of an ongoing loss of $444 per week to age 65, amounting to a claim for $378,732. This claim is simply not supported by the evidence at the hearing. The plaintiff's knee and ankle problems, which have resulted in surgery since the accident regarded by his treating doctor as unrelated to the accident, would, I am satisfied, have been a factor that would indicate that security guard work was inappropriate for the plaintiff in the long term. His present accident related disabilities of neck and back pain are essentially soft tissue in nature, and can not be projected indefinitely into the future. The plaintiff has, commendably, recognised that security guard work is unsustainable for the long term, and is undergoing retraining in a field that is of interest to him, and that he said in his evidence will lead, he expects, to work that is at least as well remunerated as that of a security guard. The plaintiff is clearly a conscientious worker, as is demonstrated by his record since arriving as a political refugee in this country, and has achieved good results in his training so far. I am satisfied that he will succeed in this course, and will obtain appropriate employment.

36. Counsel for the defendant submitted that the defendant's liability in respect of economic loss should extend only for the three and a half years to the end of the course. I am not satisfied that this is an appropriate conclusion. The plaintiff will have to take time off to undertake the surgery to his thumbs, and this will impact both on his earnings as a part time security guard, and on the progress of his studies. His neck and back pain could cause problems with his study although he acknowledged in cross examination that he presently is able to successfully combine study and work, and to undertake home study as required after he has finished his security guard work. His soft tissue injuries and aggravation to his degenerative lumbar spine should also be taken into account in respect of future economic loss. I award the sum of $ 40,000 in respect of future economic loss.

37. A claim pursuant to the principle in Griffiths v Kerkemeyer (1977) 193 CLR 161 was made in respect of the care provided to the plaintiff by his wife after the two operations, and also for general household assistance and back massages. I accept that the plaintiff would have required considerable assistance by way of home nursing and care in the aftermath of the two operative procedures, and that he will again require this assistance in the future. In respect of the other aspects of the claim, I am not satisfied that such adjustment of household roles as has been caused by the accident goes beyond the normal give and take of domestic relationships described by the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283. I am not satisfied that the home massage, referred to by the plaintiff but not his wife, is a therapeutic requirement that sounds in damages.

38. In respect of past loss, I award the sum of $2,000, inclusive of interest. I award the sum of $ 1,000 for future care following the thumb operation.

39. This amounts to a total award of $206,989.85 which I award, with costs.

I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 16 March 2001

Counsel for the Plaintiff: Mr Stretton

Solicitor for the Plaintiff: Snedden Hall & Gallop

Counsel for the Defendant: Mr McDonogh

Solicitor for the Defendant: Abbott Tout

Date of hearing: 21 & 22 February 2001

Date of judgment: 16 March 2001