Cuevas v Romero [2005] ACTSC 11 (18 February 2005)

Last Updated: 8 March 2005

MARCO CUEVAS v JASON ROMERO

[2005] ACTSC 11 (18 February 2005)

DAMAGES - Personal injuries - motor vehicle accident - soft tissue shoulder injuries - no issue of principle.

Griffiths v Kerkemeyer (1977) 139 CLR 161

No SC 302 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 18 February 2005

IN THE SUPREME COURT OF THE )

) No SC 302 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARCO CUEVAS

Plaintiff

AND: JASON ROMERO

Defendant

ORDER

Judge: Connolly J

Date: 18 February 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $92,599.80 with costs.

1. This is a claim for damages for personal injuries arising as a consequence of a motor vehicle accident that occurred at the intersection of Ginninderra Drive and Haydon Drive in Belconnen in the Australian Capital Territory late in the evening of 10 May 2003. The plaintiff was stationary at a traffic light waiting to make a turn, and his vehicle was struck from behind by the defendant. Liability has been admitted, and the matter proceeded to hearing on the question of damages alone.

2. The plaintiff was born in Chile in 1972, and migrated to Australia with his family in 1987. He completed his high school education in Canberra, but still has some difficulties with his written English, although he is quite fluent in spoken English. He worked as a maintenance labourer for a period after leaving school, but sustained an industrial accident of some severity in 1990 when he fell from a ladder while cleaning some lamps at the National Library. He received a compensation settlement in respect of low back pain. He returned to Chile where he purchased and ran a bar. He says that he employed staff to do much of the bar work and cooking, and so was able to sustain this work while his back steadily improved.

3. He returned to Australia in November 2000 because his mother and other family members were here. He returned to live with his family in Canberra, and obtained work for a cleaning and building maintenance company, and providing personal care services for an agency that looked after persons with a disability. Work in both areas was somewhat intermittent. He was also in receipt of unemployment benefits at the time of the accident, having left the care services agency in about February 2003. He says that he was having some discussions with the proprietor of the cleaning and building maintenance company about purchasing the company at the time of the accident.

4. He attended Calvary Hospital after the accident, and complained of pain on abduction of the left shoulder and cervical spine. The hospital notes show that a preliminary diagnosis of soft tissue injury to the left shoulder was made. He was discharged with pain relief and anti-inflammatory medications, and was told to report the next day for x-rays. Plain x-ray on 11 May 2003 showed no irregularity to the shoulder or cervical spine. He was given a medical certificate to cover the period to 19 May 2003. On 20 May 2003 he attended a general practice clinic and complained of neck pain, lower back pain, left shoulder pain and pain to both upper limbs. In the report of Dr Al-Naser of 23 June 2003 and in other reports, it is stated that he denied any previous accidents or injuries, which is clearly inconsistent with his acknowledgement of an industrial accident and some ongoing lower back pain in the early 1990's, but I am satisfied that this had broadly resolved by the time of the subject accident. In any event, the lower back pain that he complained of early after this accident has now largely settled, and his ongoing complaint of shoulder pain and restriction of movement in the left shoulder was not the subject of any prior complaint or accident.

5. Although liability for the accident was admitted, the defendant tendered photographs taken by an insurance investigator of the car driven by the plaintiff at the time of the accident. The vehicle was a small hatchback and the photographs do not show any apparent damage to the rear panels of the vehicle. It was submitted by the defendant that this was consistent with an impact of very low intensity. The plaintiff gave evidence that, although he was able to drive the car to the hospital after the accident he noticed a noise coming from the rear wheels that had not been present before the accident, and he noticed a degree of instability in the car if driven at any speed. He says that the passenger side rear wheel was rubbing on the wheel arch. The photographs, on close inspection, do seem to reveal a degree of twisting to the rear of the vehicle, in that there is a much greater gap between the rear wheel and the wheel arch on the driver's side of the vehicle than on the passenger's side. He says that he was forced forward by the impact and feared that he would strike his head on the windscreen, but was restrained by his seat belt. He says he felt his left shoulder push forward. No evidence was given by the defendant as to the circumstances of the collision, and I am satisfied on the evidence before me that it was an accident of sufficient severity to give rise to the type of soft tissue injury of which the plaintiff complains.

6. The general practice clinic made a diagnosis of whiplash of the neck, lower back soft tissue bruising and bilateral shoulder muscle spasm associated with the whiplash, and continued to give him medical certificates up to July 2004. They recommended physiotherapy, which he undertook with Mr Rumore. In Dr Al-Naser's report of June 2003 he stated that the soft tissue injuries -

are expected to last for a period of between three to six months. Full recovery is anticipated and no further time off is anticipated after July 2003.

7. He was examined by Dr White, a neurologist, for medico-legal purposes in July 2003. Again, this report says there is no history of prior injury, which is not consistent with the evidence of earlier low back injury, but again the observation must be made that this is a minor part of this case. Dr White said that -

Although he has some complaints of cervical and lumbosacral spine pain, it is my impression that these are soft tissue related and will probably ameliorate over the next few months, probably to the point of resolution. At this stage however his primary problem is related to his left shoulder and it is appropriate for him to have orthopaedic or rheumatological assessment of that. I do not believe it is within my sphere of expertise to comment further on the shoulder except to say that there may well be rotator cuff pathology.

8. At the time of his report Dr White had available to him a CT scan of the cervical and lumbar spine, which was normal, and an ultrasound of the left shoulder. These showed no abnormalities attributable to the accident, but he noted that an MRI of the left shoulder had been scheduled but had not occurred.

9. The plaintiff changed his general practitioner to Dr Chew at the Interchange General Practice in about September 2003. Dr Chew noted that the major problem at that time was "ongoing persistent pain and stiffness in his left shoulder". In his report of November 2003 Dr Chew said that on examination he noted restrictions of movement to the left shoulder and pain, but full range of movement to the back with mild tenderness only. He felt this was consistent with some rotator cuff dysfunction. Dr Chew had before him an MRI of the left shoulder of July 2003 with a report from Dr Bramley, radiologist, which said -

There is very slight signal seen within the subscapularis and supraspinatus consistent with mild tendinopathy. No tears are identified. There is minimal bursal fluid. The rotator cuff otherwise appears normal. The biceps tendon appears normal.

Dr Chew injected some cortisone into the left shoulder, but this did not provide any relief.

10. The plaintiff was then referred to Dr Roberts, an orthopaedic surgeon, by his solicitors in January 2004 for a medico-legal report. Dr Roberts had before him the MRI of the shoulder and found significant restrictions of movement of the left shoulder. He tried a further injection of cortisone, but again this had no benefit. Dr Roberts has recommended an arthroscopic examination of the left shoulder. In his report of March 2004 he says -

I am not certain of the diagnosis. He has been investigated with the MR arthrogram which has identified both some degenerative changes within the acromioclavicular joint however cortisone injection into this joint did not relieve his symptoms at all. There was some oedema on the undersurface of the acromion, which may indicate some impingement of the rotator cuff against the acromion. I have offered him an arthroscopic examination of shoulder to exclude any significant damage within the shoulder joint, to inspect the subacromial space, and if there did appear to be impingement of the rotator cuff against the acromion then I would perform an arthroscopic subacromial decompression.

11. The plaintiff says that he has not undergone this procedure because he could not afford the fees, which he said had been quoted at between $5,000 and $10,000, depending on whether procedures will follow the examination.

12. The plaintiff was examined by Dr Jackson, a consultant orthopaedic surgeon, in May 2004 for the defendant. In this report he described lower back pain symptoms which seem to be significantly above the levels reported to his treating general practitioners. In relation to his left shoulder, Dr Jackson reported a moderate restriction of movement with abduction and flexion both limited to 70 degrees. He observed no muscle wasting, swelling or deformity. Dr Jackson diagnosed a soft tissue injury in the form of a rotator cuff tendonitis and bursitis to the left shoulder, and said that "it is reasonable he undergo arthroscopy and possible subacromial decompression, as suggested by Mr Roberts". He expressed the view that the prognosis for any neck and back pain was excellent, and that the left shoulder prognosis was reasonable, dependent on the outcome of the arthroscopy.

13. This is a case where the court would clearly be in a better position to assess damages had an arthroscopy, which is recommended by the relevant specialists who have provided medico-legal reports for both sides, been undertaken. The plaintiff gave evidence that he could not afford the cost, and this is reasonable, given that he has not been in receipt of any income other than a pension since the accident.

14. I am satisfied that as a consequence of the rear end collision he sustained some minor soft tissue injury to his back and neck that has now resolved. I note that he had denied any prior accidents to some but not all doctors, and that the level of complaint in relation to the low back pain in particular seems to have varied. In relation to the left shoulder, however, there is a quite consistent pattern of complaint and restriction of movement. I am satisfied that he has sustained an injury to his left shoulder, of a soft tissue nature that will require surgical intervention by way of an arthroscopy. It seems to me on the material of Dr Roberts and Dr Jackson that I can be satisfied, on the balance of probabilities, that some further procedure by way of decompression will be necessary following or consequent upon the arthroscopy, but that the eventual outcome, given that there is no evidence of any frank lesion or tear to the structure of the shoulder, should be satisfactory.

15. I accept that the shoulder has caused the plaintiff ongoing pain and discomfort. He gave evidence that he had been an enthusiastic amateur soccer player and coach, and had at the time of the accident been coaching a university women's team. In some of the medical reports there is the suggestion that this was a paid job, but the plaintiff gave evidence that he received only some reimbursement for petrol and other expenses. Although he says that but for the injury he would have liked to have become a professional soccer coach in Spain, this seems quite unrealistic given the evidence about his amateur playing career and amateur coaching experience. Many people watching elite sport on television would no doubt like to be the coach of their team, but professional sports coaching is an exacting profession, requiring qualifications and experience that seem to be absent in this case. Nonetheless, I accept that he enjoyed this sport and I am satisfied that his shoulder pain made it difficult to participate as a coach, as he was limited in moving and running about with his team.

16. In assessing general damages it seems to me that the neck and low back pain does not loom large, and I accept the evidence of Dr Al-Nasser that this was settling well within months of the accident. I accept that the principal complaint is the ongoing shoulder pain, which has restricted him from his prior employment. Dr Jackson has acknowledged that with his present level of shoulder restriction he is not fit to return to the type of duties that he undertook before the accident, and that the restrictions on his mobility together with his limited present educational skills and English language, would make him presently virtually unemployable, and I accept this view.

17. I am satisfied however that his shoulder symptoms, which I find are soft tissue in nature, are likely to resolve following arthroscopic examination and a probable decompression procedure, and that within a year or so he should be free of disabling symptoms. In relation to general damages, I would award the sum of $40,000, with $30,000 attributable to the past, generating interest of $1,070 for a total award of $41,070.

18. Past out-of-pocket expenses were agreed in the sum of $3,529.80 which I award. I have found that it is probable that he will undergo arthroscopic examination and a decompression procedure, which will resolve his present disabling condition, and it is therefore appropriate that I make an award of some significance for the future cost. The only evidence of this future cost is his evidence that it would be in the order of $5,000 to $10,000 depending on whether a procedure additional to the examination is required. As I have formed the view that an additional decompression procedure is likely, I award towards the upper end of this range in making an award of $8,000 for future medical expenses.

19. A Griffiths v Kerkemeyer (1977) 139 CLR 161 claim was particularised, but no real evidence was lead as to the impact of the injury on his normal daily life. He is able to drive a manual car, and the only doctor to have addressed this question is Dr Jackson, who reported that there is no need for home care assistance. I make no award under this head of damages.

20. The plaintiff's economic loss claim is somewhat problematic. It seems to me that the medical evidence of Drs Roberts and Jackson is sufficient for me to find that due to his left shoulder he has, since the accident, been effectively disabled from utilising his economic capacity. However, although some of the medical reports give the impression that he had been in active employment up to the date of the accident, and that this alone has kept him out of the labour market, his taxation returns show a different position, which he acknowledged in his evidence. For the financial year 2001-2002 his taxation returns show that he disclosed his occupation as a cleaner, and that he had received payments from Belconnen Building Maintenance of $2,892 over the financial year. He was also in receipt of Newstart and Austudy benefits in the sum of $7,837 during that year. Clearly, he was only utilising his economic capacity on a more or less part-time basis during this year, and relied principally on pension benefits for his income. The group certificate from the employer shows that he was employed by them from the middle of August until the end of the year, so the payments of $2,892 spread over nine months amounts to only about $320 gross per month, or about $80 per week.

21. The next year's return shows that he had income from Healthcall and Commonwealth benefits. The period of employment with Healthcall, which was the disability services provider, was from 1 July 2002 to 12 February 2003, and was in the sum of $11,356, which over seven months amounted to about $1,622 per month, or about $400 per week. The balance of his income was shown as Commonwealth benefits in the sum of about $4,438, with no employment with Belconnen Building Maintenance shown. He acknowledges that he decided to leave the employment with Healthcall in February 2003, some three months before the accident, because he did not like the work.

22. Mr Cuevas said in his evidence that the day before the accident he had worked with the principal of Belconnen Building Maintenance and that there had been discussions about him purchasing the company and undertaking the business in his own name. He said that the company was run by a friend, who is also of Chilean origin, and that there were discussions about him using property he owns in Chile as an exchange for the business so that the owner could go back to Chile. No documentation was available to support this claim, and he acknowledged that the business was still in operation in Canberra, being run by the stepson of his friend. No additional evidence was called about this proposed transaction.

23. In an answer to a request for particulars going to economic loss in November 2003, the plaintiff's solicitors, on instructions, said that -

Our client's occupation at the time of the accident was window cleaner and general cleaner. He had been working briefly with Belconnen Building Maintenance and was just about to commence as a sub-contractor working for that firm.

In answer to a further request for particulars in November 2004 it is said that -

The position with Belconnen Building Maintenance that he obtained was in anticipation of full time employment and the possibility of a partnership or some other interest in that business.

24. It seems to me that Mr Cuevas cannot show a strong working history prior to the accident. In relation to income earned by his own efforts he seems to have been earning something less than $100 per week during the time he worked with Belconnen Building Maintenance. Although he obtained employment with a care provider which produced a weekly income in excess of $400, he left this in February 2003 and seems not to have worked again that year. Certainly no further income appears on his tax return. He said that he spent the day before the accident with Belconnen Building Maintenance, but whether this was with a view to purchase the business in exchange for a property he owns in Chile or to resuming part-time employment or entering some form of partnership, remains unclear and each version has been advanced during the course of these proceedings. The plaintiff has not established, on the balance of probabilities, that the day before the accident he had reached a point where there was going to be a dramatic change in the way he had utilised his economic capacity.

25. The claim for past and future economic loss was particularised on the basis of an ongoing net loss of $550 per week. This is well above the level of earnings that his taxation records show that he was achieving. I accept that he probably would have returned to more active employment but for the accident, but it seems to me that the pattern since his return to Australia has been for intermittent employment. Mr Lunney, for the plaintiff, in his submissions suggested that a starting point might be an economic loss of about half the average weekly earnings, generating an ongoing loss of about $325 per week.

26. It seems to me that this is not a case where an arithmetic approach is going to be appropriate in calculating economic loss, given the plaintiff's intermittent and irregular employment pattern. Mr Lunney's approach has some validity, at least as a check against any global buffer, but it seems to me that it overstates his past record and the fact that he voluntarily relinquished the better paying work, and had not returned to cleaning work in the three months prior to the accident. I am satisfied, however, that his shoulder injury has made it impossible for him to utilise his economic capacity from the date of the accident, and that he will not be able to return to work effectively until he recovers from the arthroscopy and decompression procedure. I accept that he is undertaking some studies, and would like to undertake a university course, but this cannot be seen to be the defendant's responsibility if I find, as I have, that he will achieve recovery and be able to return to the type of duties that he did undertake before the accident if he chooses.

27. It seems to me that a buffer of $40,000, inclusive of interest, is appropriate in relation to past and future economic loss, and I make this award.

28. The award comprises of -

General damages $40,000.00

Interest $1,070.00

Past out-of-pocket expenses $3,529.80

Future out-of-pocket expenses $8,000.00

Economic loss $40,000.00

Total: $92,599.80

29. This amounts to an overall award of $92,599.80 which seems to me to be appropriate in all the circumstances and which I would award with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 18 February 2005

Counsel for the plaintiff: Mr G Lunney

Solicitor for the plaintiff: Higgins Solicitors

Counsel for the defendant: Mr K Andrews

Solicitor for the defendant: Sparke Helmore

Date of hearing: 1 and 2 February 2005

Date of judgment: 18 February 2005