Bajkowski v Selway Pty Ltd t/as Mama's Trattoria [2002] ACTSC 124 (13 December 2002)

Last Updated: 24 December 2002

ANDREW STEPHAN BAJKOWSKI v SELWAY PTY LTD T/AS MAMA'S TRATTORIA [2002] ACTSC 124 (13 December 2002)

CATCHWORDS

DAMAGES - personal injury - assessment - aggravation of previously symptomatic neck condition - no issue of principle

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No. SC 229 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 13 December 2002

IN THE SUPREME COURT OF THE )

) No. SC 229 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANDREW STEPHAN BAJKOWSKI

Plaintiff

AND: SELWAY PTY LTD T/AS MAMAS TRATTORIA

Defendant

ORDER

Coram: Master T. Connolly

Date: 13 December 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $80,162.74

2. Defendant to pay the plaintiffs costs

1. This is a claim for damages for personal injuries arising from a work place accident that occurred on 10 October 1995 when the plaintiff was working for the defendant as a kitchen hand in a restaurant in Canberra City. He was a university student at the time, but worked for two nights a week on a part time basis. He says that he was mopping up in the kitchen area when a machine used for killing and deterring insects fell from the ceiling and hit him in his back. He says that he suffers from ongoing neck pain as a consequence of this injury.

2. Primary liability was not strongly in issue. The circumstances of the accident were not contested, and the plaintiff's mother, who also worked in the restaurant at the time, gave evidence that some weeks prior to this incident she had observed the machine fall from where it was fitted to the ceiling by chains. As it was situated adjacent to a sinks she says she was concerned at the risk of an electrical accident, and she told the restaurant proprietor that this was dangerous, but nothing was done. She says that after her son was struck a person came in with a ladder and did some work to more securely fit the machine to the ceiling. I am satisfied that negligence is established in that the defendant failed to take appropriate care for the safety of the plaintiff, as their employee, when the defendant knew that the machine was insecurely fitted to the ceiling.

3. The real issue between the parties goes to causation. It is common ground that the plaintiff had had some neck pain before the accident, but he says that this resolved after a few treatments from a physiotherapist. He acknowledges that he sustained an injury to his neck when he was acting as a pallbearer for his grandfather's funeral in mid-1993, and that this caused some pain and stiffness for a while, with a recurrence later that year, but he says that after this he had no neck problems.

4. In support of this he says that in the university vacation of 1993/1994 he did a lot of heavy work at a house his parents were renovating, involving landscaping and taking loads of material to the tip, with no problems with his neck. There is, however, a plain x-ray of his neck in February 1994. This reveals no abnormalities, and the plaintiff says he has no recollection of how he came to have an x-ray to his neck in February 1994. He conceded in cross-examination that he would have had to have had a referral from a doctor.

5. His family doctor at the relevant time was Dr Rososinski at the City Health Centre. In March 1996 he transferred his general practitioner care to Dr Shihoff of Lyneham, and unfortunately the clinical notes of Dr Rososinski seem to have become lost, and the parties advised me that despite notices for non-party production they could not be located and produced.

6. The plaintiff maintains that, apart from the incidents of neck pain in 1993 he had been pain free. This is inconsistent with a note from Dr Rososinski of 11 October 1995, the day after the accident and the day the plaintiff acknowledges he consulted his general practitioner. Dr Rososinski's note reads:

"Andrew has had a painful neck for 2 years due to musculo-skeletal stain. His cervical spine x-ray was normal in 1994. He is to have ultrasound massage, heat and exercise for his neck."

7. In a report to the plaintiff's solicitors in March 1999 Dr Rososinski also recorded a history that

"Andrew stated that over the previous 2 years he had a painful neck due to muscular skeletal strain but x-rays of cervical spine in February 1994 were normal. He was referred to physiotherapy for his cervical spine pain. The physiotherapy alleviated his symptoms."

8. The plaintiff denies having, or having told Dr Rososinski that he had, neck pain for the two years prior to the accident. His mother supported his statement that he did not have neck pain prior to the accident, and a statement from a university friend was tendered where the friend said that he was not aware of neck pain and that the plaintiff had assisted him with yard tidying duties. Another friend said that the plaintiff helped him to move house in 1994 and did not complain of pain.

9. I am not satisfied, however, in the face of the contemporaneous note of the treating general practitioner, and the medico legal report of that same general practitioner, and the fact that there was a cervical spine x-ray taken in 1994 that the plaintiff cannot explain, that the plaintiff's neck problems in 1993 had resolved before the accident. Although I accept that he was not greatly inconvenienced by this, and was able to undertake the activities referred to in the evidence, I am satisfied that he had told his general practitioner of a long term history of some neck pain.

10. There is also an issue between the parties as to where the plaintiff was struck. In his evidence he referred to his upper thoracic area. He told Dr Chandran in May 2000 that

"an insect coil fell from the ceiling and hit the upper thoracic region below the neck."

He told Dr Danta in January 1998 that the insect coil

"hit the upper thoracic region posteriorly."

He told Dr Scott in February 2001 that it

"fell on to him over his upper thoracic area near the base of his neck."

He told an osteopath, Mr Orrell, in March 1998 that it fell onto his

"upper thoracic and shoulder".

He told Dr McEwin who examined him for the defendant in September 2000 that he was struck

"in the upper thoracic area."

11. This is a consistent history of being struck in the upper thoracic area, and is in that sense consistent with the complaints of ongoing neck pain. It is, however, somewhat inconsistent with the more contemporary material. Dr Rososinski's report of March 1999 said that the insect zapper fell

"on the right side of his back in the thoracic area. On examination Andrew was tender over the lower thoracic region of his back. He had some bruising over the area."

In the same report Dr Rososinski said

"I next saw Andrew on the 23^rd October 1995 when he was still complaining of pain over the lower right thoracic area. On examination he was still tender over the right lower thoracic area."

12. Again the plaintiff's version of events, which supports a claim for neck pain, is inconsistent with the contemporaneous general practitioner report, from the general practitioner's notes, which are not available. I find particular significance in the general practitioner making the observation as to bruising in the lower thoracic area, which is consistent with this being the site of the injury. I am satisfied that the insect zapper struck the plaintiff in the lower thoracic area, and to this extent I find that he has been somewhat misleading in telling more recent doctors that he was struck in the upper thoracic area, or near the neck.

13. This said, I accept Mr Mildren's alternative submission that, even if the site of the injury was in the lower thoracic area, the plaintiff was at the point of impact hunched over mopping the floor, and an impact at his lower thoracic would nevertheless have an impact on the spine commensurate with a whiplash type injury.

14. There is a further point where I am not satisfied that the plaintiff's evidence was accurate, and this further goes to my preference for the contemporaneous material from the doctor where it is in conflict with the plaintiff's evidence. The plaintiff gave evidence that he worked two nights a week on a regular basis, and received about $100 a week. Indeed his economic loss claim for the past is based on an ongoing loss while he was a student of $5000 a year because he could no longer do the restaurant work. He gave evidence that he was in receipt of Austudy allowance of just under $5000 a year. He did not produce any tax returns, and he said that he did not file any tax returns because, he said, his income was below the threshold, which he said was $5000. There is a clear inconsistency here between his evidence of about $100 a week in restaurant earnings, just under $5000 from Austudy, yet total earnings still below the $5000 threshold. He acknowledged in cross-examination that he was sometimes paid in cash. I did not find his evidence in relation to his earnings, taxation status and Austudy payments satisfactory.

15. Since the accident the plaintiff has had a degree of ongoing neck pain. It is apparent from Dr Rososinski that he presented for treatment for the last time at his rooms on 23 October 1995, he reported "an alleviation of his back and neck symptoms." He then presented at Dr Shihoff's rooms in March 1996 where he complained of neck pain, tenderness and limited rotation. He was prescribed anti-inflammatories and gel. He next presented in July 1996 complaining of neck pain and left arm numbness. Dr Shihoff referred him to physiotherapy in August 1996, and prescribed further anti-inflammatories in October 1996. He was seen by Dr Shihoff again for anti-inflammatories in June and July 1997, and in December 1997 he was referred to Dr Danta.

16. In Dr Danta's report of February 1999 he took a history that since the accident

"he has been waking with pain and stiffness in the neck perhaps once every four or five months and has been applying heat to the region and taking aspirin for the pain but it did not incapacitate him."

Dr Danta ordered cervical x-rays which were normal, and prescribed Valium for his arm. Dr Danta ordered an MRI of the cervical spine in July 1998, and this showed a disc lesion at C4/5. Dr Danta said

"The patient suffers from symptoms of cervical spondylosis and soft tissue injury to the neck and the fall of the insect coil on to his upper thoracic regions posteriorly significantly contributed to his symptoms as has wear and tear in the course of head and neck movements over the years. Such damage is cumulative."

I note that Dr Danta had a history of the impact at the upper thoracic region, which is inconsistent with the contemporary records, and contrary to my findings.

17. The pattern of ongoing complaints, with periods of more acute discomfort, seems to have continued. While the plaintiff has not returned to the relatively heavy work of a kitchen hand, he was able to complete his arts and law degrees from the Australian National University, and to successfully complete the legal workshop and be admitted to practice as a legal practitioner in this Court. He then found employment with the Commonwealth Government, first at the Aboriginal and Torres Straight Islanders Commission as a contract employee, and more recently in a permanent position in the Department of Defence in the Defence Intelligence Organisation. This position involves working at a computer, preparing briefings and papers, and attending meetings and seminars. It is clearly a position of significant responsibility.

18. He was referred by Dr Danta to Dr Chandran, a neurosurgeon, in May 2000. Dr Chandran said that the MRI of the cervical spine

"showed left posterolateral disc protrusion with osteophytes at C4/5 level indenting the theca and flattening the cord on the left. At C5/6 level, there was a small central and left postero-central protrusion indenting the theca. A minor bulge was also reported at C6/7 and C3/4. The significance of these minor bulges was not evident purely on the basis of the scan."

19. Dr Chandran undertook a discogram in August 2000 which revealed painful disruption at C4/5, and he advised the plaintiff that this was the source of his pain and discomfort, and that his options were cervical fusion at this level or the continuation of conservative treatment. The plaintiff, who is a young man, has preferred to maintain conservative treatment with massage from an osteopath and anti-inflammatory medication. In his report of August 2002 Dr Chandran took a history that he avoids lifting weights over 10-15 kilos, and takes periodic breaks and moves around at work to ease pain. He does not take part in sports other than swimming, and takes anti-inflammatory medication as required. He concluded that the plaintiff's condition

"remains stable with minimal symptoms and restriction of activities as stated. He is working full time but experiences discomfort with prolonged sitting and needs to move around. He has to limit lifting to not more than 10-15 kilograms of weight."

20. Dr McEwin, for the defendant, said in his report of September 2000 that the medical notes of Dr Rososinski had a history of two years of neck pain, and the physiotherapist on 8 November recorded that the symptoms following the insect coil fall had been alleviated, and concluded

"I therefore regard the incident of 10 November (sic- October) 1995 as aggravating his pre-existing neck pathology for one or two months. After this period I consider his continuing symptoms, disability and incapacity are due to degenerative changes in the neck which were present prior to the injury of 10 October 1995. The presence of osteophytes seen in the MRI scan at C4/5 indicate that the changes have been of fairly long standing as osteophytes take a considerable time to develop."

21. Mr Bajkowski was also seen by Dr Fuller, a neurosurgeon, for the defendant, but his report was not served. I can draw from this the inference that this report would not have assisted the defendant's case.( Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298)

22. I am satisfied from all of the evidence that the plaintiff was struck in the lower thoracic region when the machine fell on him while he was mopping the restaurant floor. I am satisfied that a blow in these circumstances has aggravated a previously symptomatic degenerative neck condition. The plaintiff has widespread disc degeneration, with abnormal indicia at C3/4, 4/5, 5/6 and 6/7. I am satisfied from Dr Chandran's reports that the prime site of his present difficulty is the bulge at C4/5.

23. I am not satisfied on all of the evidence that the accident caused the disruption at the various levels, but I accept that the blow and the associated whiplash motion would have aggravated a previously symptomatic degenerative condition. In relation to the prior symptoms, I find that the plaintiff had, as recorded by his then general practitioner, been making ongoing complaints of neck pain in the two years prior to this incident, although I accept that this was not generally disabling.

24. I am satisfied that the plaintiff's ongoing neck condition, aggravated but not solely caused by the accident, have left him with a degree of ongoing pain and inconvenience, broadly as explained by him and as set out by Dr Chandran. I find that despite this inconvenience he has been able to complete his professional education and enter the workforce in a very responsible position, and is independent in the activities of daily living. While there is a suggestion from Dr McEwin, who reported for the defendant that his neck condition will probably deteriorate in the future and that he may then require some ongoing assistance, I find that this is due to the passage of time on his previously symptomatic degenerative cervical spine, and is not attributable to the aggravation caused by this incident.

25. In relation to general damages, I award the sum of $35,000, with $25,000 attributable to the past, generating interest of $3590 for a total award of $38,590.

26. Out of pocket expenses to the date of hearing were agreed in the sum of $9,572.74 and I award this sum. Future out of pocket expenses were particularised on the basis of a need for future surgical intervention. While I accept that the plaintiff may come to this, I am not satisfied that the bulge at C4/5 was caused, as opposed to aggravated, by the accident. I thus make an award for future out of pocket expenses on the basis of ongoing conservative treatment and only a degree of contribution towards any future surgery. I award the sum of $7,000 in respect of future out of pocket expenses.

27. Past economic loss was particularised on the basis of an ongoing loss of about $100 a week during his period as a university student. I have indicated above my difficulties with his evidence in respect of his student earnings, and the absence of taxation or other earnings records. In addresses Mr Mildren submitted that a buffer for his earnings loss during a student of $5000 would be appropriate, and I accept this submission and award $5,000 inclusive of interest in respect of part economic loss.

28. The plaintiff has gone on to complete his studies in the ordinary time frame, and has successfully obtained responsible employment. On these circumstances, there would normally be little by way of economic loss, save for a buffer reflecting the fact that the aggravation of his previously symptomatic degenerative condition has rendered him unfit for heavy manual labour. He is, of course, and admitted legal practitioner, and is presently working in the employ of the Commonwealth as an intelligence analyst.

29. He gave evidence that persons from his area are eligible to apply for postings as peace keeping monitors to various places where Australian Defence Force Personnel are involved in such important duties. The peace-monitoring role is available to civilian employees of the Defence Department. He gave evidence, which I accept, that he would like to apply for this role in Bougainville, but that he feels that he would not be able to comply with the physical fitness requirements, and would not be able to live rough in the bush. He is supported in this by medical reports, but he has not actually made application for such a position, or undergone tests within the Department of Defence. The evidence is that these positions attract a substantial tax-free bonus above ordinary earnings, and that for a three-month rotation he could earn about $12,750.

30. This has been translated into a claim for future economic loss, and past loss, in the order of $245 a week. While this is arithmetically accurate over the life of one three month rotation, the evidence does not suggest, and indeed the Departmental documents tendered seem to contradict, the proposition that such a posting would be permanent. I accept that the plaintiff may have been unable to apply for one such posting, although he has not in fact made application and been found wanting. Moreover, his ongoing pre-existing symptomatic degenerative condition may well have rendered such a rigorous posting inappropriate even without the contribution of this accident.

31. Taking all of the evidence into account, I would award the global sum of $20,000 for future economic loss

32. I make no award for Griffiths v Kerkemeyer damages. The evidence is that he is and has been fully independent in the activities of daily living, and to the only medical evidence that suggests any need for assistance is that of Dr McEwin. I take his report, where he concludes that the plaintiff only sustained a temporary aggravation that has now passed, to refer to a need for assistance caused by the underlying degenerative cervical spine, and not by the accident.

33. This amounts to a total of $80,162.74 which I consider to be appropriate in all the circumstances of this case, and award, with costs.

I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 13 December 2002

Counsel for the Plaintiff: Mr R. Mildren

Solicitor for the Plaintiff: Worth & Co

Counsel for the Defendant: Mr F. G. Parker

Solicitor for the Defendant: Dibbs Barker Gosling

Date of hearing: 25 November 2002

Date of judgment: 13 December