Manera v Szumowski [2003] ACTSC 96 (25 November 2003)

Last Updated: 22 January 2004

FRANK ANTHONY MANERA v TADEUSZ SZUMOWSKI

[2003] ACTSC 96 (25 November 2003)

NEGLIGENCE - motor vehicle impact with pedestrian in carpark - no issue of principle

DAMAGES - shoulder injury - no issue of principle

No SC 402 of 2002

Coram: Master Harper

Supreme Court of the ACT

Date: 25 November 2003

IN THE SUPREME COURT OF THE )

) No SC 402 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FRANK ANTHONY MANERA

Plaintiff

AND: TADEUSZ SZUMOWSKI

Defendant

ORDER

Coram: Master Harper

Date: 25 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $102,302.44.

1. On 10 July 2001, the plaintiff arranged to meet a young lady, Sharrie Bermingham, for dinner in Manuka. He had met her a few days earlier and this was to be their first dinner date. They made arrangements to drive in their own cars to Manuka. They parked in adjoining spaces on the top level of the public carpark in Furneaux Street. They walked to Tosolini's and had dinner together. They returned to their cars, using the enclosed stairwell of the carpark. When they got out at the top floor, they saw a couple of people looking at the plaintiff's car. He had a For Sale sign in one of the windows and initially assumed that this was what they were looking at. As the approached, the plaintiff realised that there was someone inside his car. He began to run towards it. As he did so, the person got out of his car and the three people got into another car which had been parked at right angles to and behind his car. They accelerated the car, and appeared to drive at him. He formed the view that the driver was attempting to hit him. He jumped out of the way but was struck by the car, his right shoulder hitting the windscreen with considerable force. He was thrown to the concrete surface of the carpark, landing on his left side and suffering bruises and abrasions.

2. He lay where he was briefly but looked around towards the car to see that its passage had been impeded by another vehicle reversing out of a parking space some distance away. He got to his feet and ran towards the car. When he reached it, he kicked it, probably in the driver's door. He opened the door and was in the process of reaching in to grab at the driver when the car, its passage presumably no longer blocked, drove away at some speed out of the carpark. The plaintiff in cross-examination denied that he got hold of the driver with his right hand.

3. He got the number of the car. It was owned by the son of someone who worked at the Polish embassy, and had diplomatic registration plates. It appears that the son had lent it to the driver. The police identified the driver but were unsuccessful in obtaining any admissions from him and no prosecution ensued. There is no issue that the defendant was the registered owner of the vehicle at all relevant times. The driver is presumed to have been the owner's agent acting within the scope of his authority for the purpose of these proceedings: Road Transport (General) Act 1999, s 196.

4. In addition to general bruising and abrasions from which the plaintiff made a reasonably quick recovery, he suffered a serious injury to the right shoulder, in the form of an undisplaced fracture of the greater tuberosity of the right humerus with a small avulsed bone fragment, accompanied by a subluxation of the right acromio-clavicular joint and a partial tear of the distal supraspinatus tendon. In a letter to the plaintiff, his treating orthopaedic surgeon, Dr G Stubbs, compared the effect of the injury with the image of a tree or shrub being pulled up by the roots, but then going straight back into its hole: in that situation it would be some time before the roots would grow into the surrounding soil. He explained that something similar had happened to the plaintiff's tendon. It had been pulled up by the roots and had taken pieces of bone with it, but had returned to its proper place. It would need some months to heal securely.

5. It was submitted on behalf of the defendant that I should find it was more likely than not that the injury to the shoulder happened not when the plaintiff was struck by the defendant's vehicle, but rather when he grabbed at the driver just as the vehicle was driven away. Counsel for the defendant relied on a description of the circumstances in an Australia Federal Police case report which stated that the plaintiff had opened the driver's door and grabbed at the driver. Further reliance is placed on an opinion expressed by Dr R Jackson, orthopaedic surgeon, who examined the plaintiff in April 2002 at the request of the defendant's insurer. The plaintiff gave a history of being struck by the car but did not relate to the doctor the incident where he opened the door of the car shortly afterwards. On being informed of this incident, Dr Jackson adhered to his opinion that the injury to the shoulder occurred in the initial incident when the plaintiff was struck by the motor vehicle. Further material was put to him a few months later by the defendant's solicitors, including a history that when the plaintiff opened the driver's door, he grabbed the driver prior to the vehicle reversing and the plaintiff jumping out of its path. Assuming this to be correct, he altered his opinion, and said that he considered it more likely that the second incident was responsible for the shoulder joint pathology.

6. There is no evidence to support the hypothesis put to Dr Jackson that the plaintiff grabbed the driver. I am unable to accept his altered opinion. He did not originally express any doubt as to whether the first impact was capable of causing the shoulder injury. None of the treating doctors have expressed any doubt about this. I am satisfied that the shoulder injury was caused in the initial impact, when the plaintiff was struck by the car.

7. There is a defence of contributory negligence. Counsel for the defendant disavowed this in relation to the initial impact, and sought to rely upon it only in relation to the subsequent incident. I am satisfied that the initial impact was entirely due to the gross negligence, if not the deliberate act, of the driver of the defendant's vehicle, and that the plaintiff is entitled to succeed in the action without reduction.

8. The plaintiff was born on 16 October 1975 and is now 28 years old. He was 25 at the time of the accident. He grew up in Canberra and left school in Year 12. For something over a year, he worked at a hire and hardware business at Mitchell. He then became involved in concrete finishing, which he learned on the job over four years. Since then he has been self-employed as a subcontractor to George Kambouris Concreting, apart from a short period where he did similar work for Quinro Concrete. At the time of his injury, he was working for Mr Kambouris.

9. On the night of the injury, the plaintiff went home, but was unable to sleep because of pain, mainly in the shoulder. He took some painkillers which made no difference. The next morning he went to the Canberra Hospital where he was assessed, x-rayed, given painkillers and a sling for his right arm, and sent home. The x-ray taken at the hospital detected no fractures.

10. On 18 July, the pain was no better and he went to his general practitioner, Dr M R Hardy, who referred him to Dr Stubbs, who prescribed physiotherapy and reviewed him from time to time, measuring the strength in the shoulder. Initially Dr Stubbs said that it would be months before the plaintiff would be able to return to work: as it turned out it was not until 1 February 2002 that Dr Stubbs was satisfied that it was safe for him to return to full work activities.

11. There is some issue as to whether or not the plaintiff has made a complete recovery, and whether he is likely to have any further problems with the shoulder in the years to come. Dr Stubbs expressed the view in a letter of 4 June 2003 that the plaintiff had achieved a fairly satisfactory outcome, although he complained of stiffness in the cold and of discomfort when lying on the shoulder. He found that more than five days work a week increased the general level of discomfort. On physical examination, there were some very minor restrictions of shoulder movement, principally on internal rotation. A dynamometer recorded an average 95 Newtons of force in the right shoulder as against 115 in the left. He though that the plaintiff had a 12% whole person impairment, by reference to the American Medical Association Guide to Impairment Tables, 4^th Edition. He thought that in the long term deterioration of the shoulder was unlikely. There was a 20% chance of late deterioration in the acromio-clavicular joint, and little further improvement could be expected. Dr Jackson, who saw the plaintiff for the defendant, accepted as reasonable the seven or eight months off work, and the continuing complaints of some disability and restriction of work capacity. The musculature in the right arm was a little less than in the left arm, probably the reverse of what might be expected having regard to the fact that the plaintiff is right-handed. He thought that the plaintiff was at risk of developing post-traumatic osteoarthritic change in the acromio-clavicular joint in the long term, perhaps requiring treatment in the form of an injection of steroid into the joint or, more likely, excision of the outer end of the clavicle. He also thought that the plaintiff might develop degenerative change in the rotator cuff which might necessitate treatment in the medium or long term. He thought that the plaintiff would have a small permanent impairment in the shoulder.

12. Whilst the plaintiff made a generally favourable impression in the witness box, some matters came out in cross-examination which suggested, it was submitted, that he may have been less than completely frank with his doctors and solicitors. He is in my view to be congratulated on his positive attitude to getting himself back to work and on resuming work as soon as soon as he was physically able to do so. It was put to him in cross-examination that he could have found less physically demanding work which he could have done prior to getting back to his pre-accident employment. He conceded that he had not looked for any other kind of work, admitting in re-examination to some embarrassment at his poor literacy skills. The defendant adduced no evidence of any available work which the plaintiff could have done. He was on social security while off work. I am satisfied that he is entitled to recover his lost earnings from the date of the injury until February 2002, without any reduction to reflect possible earnings from other employment.

13. There is evidence from which it can be inferred that the plaintiff's physical condition after his resumption of work was rather better than he made it out to be in his evidence in chief. He was subjected to surveillance, arranged by the defendant's insurer, on the weekend of 23-24 March 2002 and at work on 26-27 June 2002. The March surveillance revealed that on Sunday 24 March the plaintiff and Ms Bermingham, by then his partner, drove to Jindabyne for the day, towing a Jet-ski on a trailer. They were seen to launch the trailer at a boat ramp and the plaintiff rode the Jet-ski around the lake. There was no evidence as to the weight of the Jet-ski, but it can be seen in photographs taken by the investigators and it is substantial in size, perhaps the size of a motorcycle. Nevertheless I am not satisfied that the plaintiff undertook any activity on 26 March which was inconsistent with his evidence as to the level of his activity during the course of his work at that time. Counsel suggested that the plaintiff sought to mislead the court as to when he had purchased the Jet-ski but I accept that where his evidence was shown to be incorrect, it was more likely to be due to faulty recollection than a deliberate attempt to mislead the court.

14. The surveillance in June 2002 is of more assistance to the defendant. The plaintiff was seen in a variety of concreting tasks consistent with his evidence, but is shown in four photographs using a sledgehammer in both hands, with both arms straight above his head. Again I am not satisfied that the defendant was untruthful in his evidence about the amount of work he is able to do, but the evidence of that surveillance satisfies me that by June 2002 his shoulder must have been very largely recovered. Other workmen are shown in the photographs and could, I am sure, have been asked to assist with the sledgehammer work if the plaintiff could not manage it. The photographs suggest that he had no difficulty in doing so.

15. Another area where there was some damage to the plaintiff's credibility related to his evidence that he had a relapse at about Easter 2003 and lost pay for two weeks. In cross-examination it emerged that the plaintiff was at home for five days and then went camping to Nowra between Easter and Anzac Day. He said he spent five days at home before he went camping, and Ms Bermingham, when cross-examined, said the same thing - that he had a few days off `under doctor's instructions' and then went camping. I am left with a somewhat uncomfortable feeling that the plaintiff here attempted to claim lost earnings for a period of about two weeks, including his camping holiday, rather than the period of about one week he took off on medical advice, but both he and Ms Bermingham admitted the factual position so quickly and openly when it was put to them that I think on balance it is unlikely that there was any deliberate attempt by the plaintiff to mislead the Court. Counsel for the plaintiff in address, in the absence of any medical certificate in relation to the period, conceded that whether or not a small amount for loss of earnings during that period should be allowed was not of great concern.

16. Of potentially more significance is a submission by the defendant in relation to an amended tax return lodged by the plaintiff for 2000-2001. The evidence in chief was that the plaintiff, through his accountants, lodged a 2001 tax return disclosing taxable income of $31,609 (on which tax of $6,363.83 would have been payable, including Medicare levy). Some time later, he had his accountants lodge an amended return showing the taxable income as $49,872 (the tax on which would have been $12,089.68, including Medicare levy). The plaintiff's evidence was that he signed the first tax return without reading it, and did not notice that the figures were wrong. When he realised, he rang the accountant, and got in touch with Mr Kambouris's wife. The invoices were checked thoroughly and the amended return prepared to reflect the true position. Counsel for the defendant asked the plaintiff whether he was seeking to inflate his earnings for that year to assist his case. The amended return, being for the period which concluded only ten days before the injury, was relied upon by the plaintiff as the basis for assessment of the plaintiff's lost earnings during the ensuing seven months. Loss of earnings for the period were claimed at $726.58 net per week. Counsel submitted that it would be unsafe to rely on the amended return, and preferable to take a figure of the order of $500 net per week.

17. I accept that the plaintiff's evidence about the amended tax return was truthful. I take account of the fact that it would be extremely unlikely that a person would voluntarily take on a liability of almost $6000 in tax on money he did not earn, purely for the purpose of establishing a base figure for a claim for a seven-month closed period. Apart from that, I regarded the plaintiff generally as an honest witness who might have put his best foot forward when giving evidence but would not, on my assessment of him, have deliberately falsified a document or given false evidence.

18. The injury was considerably more serious than was at first realised, and the plaintiff suffered severe pain over a long period. He was unable to work for seven months and his leisure activities and sleep were significantly interfered with. He has been left with some minor continuing shoulder symptoms which are unlikely to improve any further, and he is faced with at least the possibility of long-term deterioration which may require medical treatment and would be likely to interfere with his working capacity. I assess a figure of $55,000 for general damages, which I apportion as to $30,000 for the past and $25,000 for the future. Interest on the past component I calculate at $1,300.

19. Treatment expenses are agreed at $2,802.44. The claim for past economic loss is calculated mathematically within a range of some $23,000 to $26,000. I accept the basis for the claim but take the view that it should be reduced to $20,000 to reflect the building industry Christmas 2001 closedown. Interest on past economic loss is allowed at $2,000