Alievski v McLaughlin - [2001] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALIEVSKI -v- McLAUGHLIN [2001] WADC 20

CORAM: MARTINO DCJ

HEARD: 13 & 14 DECEMBER 2000

DELIVERED : 8 FEBRUARY 2001

FILE NO/S: CIV 2170 of 1999

BETWEEN: MFIT ALIEVSKI
Plaintiff
AND
ELIZABETH ANN McLAUGHLIN
Defendant

Catchwords:

Assessment of damages - Personal injuries - Motor vehicle accident

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr A S Stavrianou
Defendant: Mr T R D Mason

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

MARTINO DCJ: The trial of this action was for the purposes of the assessment of damages alleged to have been suffered by the plaintiff in a motor vehicle accident on 13 May 1998. The defendant admits that the accident occurred as a result of her negligence.
The plaintiff was born on 20 July 1951 in Macedonia. He received his education in Macedonia. He left school at age 15. His first job after leaving school was looking after cattle. He then obtained labouring work in a brick factory.
In 1970 the plaintiff migrated to Australia. He was then aged 19. He obtained work in Victoria as a labourer at a brewery.
The plaintiff moved to Western Australia in 1971. He worked in a variety of unskilled labouring jobs in the metropolitan area and in the north of the State. The plaintiff married in 1973.
In 1974 the plaintiff returned to Victoria for a period of approximately nine months. He has lived in Western Australia ever since.
In around 1975 the plaintiff obtained employment as a slaughterman of sheep for export to Moslem markets. The plaintiff is a Moslem.
The plaintiff remained employed as a slaughterman of sheep for the Moslem market until around 1978 when he was retrenched. The plaintiff then worked on rubbish trucks for the City of Perth.
In 1983 he obtained employment as a slaughterman of animals for the Moslem market with Clover Meats. The plaintiff worked and lived in Waroona.
The plaintiff injured his ankle in 1990. For this injury he required treatment from his general practitioner and an orthopaedic surgeon. He was off work for approximately eight months and then returned to work on light duties. He returned to full time employment in 1994.
After the plaintiff returned to work in 1994 he took a break for some months. He then attempted to return to work but no job was available for him. He then had some form of dispute with Clover Meats. That dispute was resolved and he returned to employment with that company in late 1994. At around this time the plaintiff was unable to keep the cards which authorised him to slaughter animals for consumption by Moslems. He eventually regained those cards. However, as a result of these two difficulties, when the plaintiff returned to work with Clover Meats in late 1994 he returned to work as a labourer and not as a slaughterman. At the time of his motor vehicle accident he was still employed as a labourer, but hoped to go back to work as a slaughterman.
He remained working for Clover Meats from then until the motor vehicle accident on 13 May 1998. In the period from 1994 to 1998 the plaintiff's injured ankle caused him some discomfort and swelling. He sought treatment but the medical practitioners told him that the condition of his ankle would not improve. He did not take any further time off work as a result of his injured ankle.
In October 1998 Clover Meats closed its Waroona operations and the employees were retrenched.
On 13 May 1998 the plaintiff was driving his brother‑in‑law to see Dr Boichev. Dr Boichev is a general medical practitioner who practices in Balcatta.
As the plaintiff approached a roundabout near the Galleria Shopping Centre in Morley he stopped behind a stationary car. His car was then struck from behind by a car driven by the defendant.
The defendant gave evidence that she was travelling at about 40 to 50 kilometres an hour when suddenly the car in front of her stopped. She swerved in an attempt to avoid the collision. The left hand side of her car collided with the right hand rear side of the plaintiff's car. In cross‑examination, the defendant said that while she could not remember applying the brakes to her car she was confident that she would have done so as a reflex action.
Immediately after the accident the plaintiff felt pain in his neck, his lower back and his right shoulder. He attended Dr Boichev approximately an hour after the accident. Dr Boichev prescribed analgesics, an anti‑inflammatory gel and a neck collar and referred the plaintiff for physiotherapy. In Dr Boichev's opinion the plaintiff was unfit for work at that time.
In July 1998 Dr Boichev referred the plaintiff to Mr G Janes, orthopaedic surgeon. The plaintiff told Mr Janes that he suffered cervical and upper thoracic chest pain and also some discomfort in the right shoulder. He informed Mr Janes that he had been unable to work since the accident. Mr Janes diagnosed minor soft tissue damage to the para‑spinal muscles in the upper thoracic/lower cervical region. He recommended that the plaintiff continue with physiotherapy and symptomatic treatment but that no significant intervention was likely to improve his symptoms and that the plaintiff's return to work would need to be managed as the symptoms permitted.
In August 1998 Dr Boichev referred the plaintiff to Mr J D H Bell, orthopaedic surgeon. In Mr Bell's opinion the plaintiff had suffered soft tissue injuries to his cervical spine and thoracic spine regions. Mr Bell encouraged the plaintiff to maintain an exercise program.
In October 1998 the plaintiff saw Mr R C Edibam, orthopaedic surgeon, at the request of the Insurance Commission. The plaintiff informed Mr Edibam that he was suffering neck and interscapular pain and pain in the dorsal and lumbar spine. In a report dated 22 October 1998 Mr Edibam expressed the opinion that it was unlikely that the plaintiff had suffered any significant injury and he was unable to explain his widespread symptomatology. He did not feel that any treatment was necessary as it would be based entirely on the plaintiff's symptoms without any finding of pathology and consequently he felt that the earlier the plaintiff's case was finalised the better.
In March 1999, the plaintiff saw Professor F L Mastaglia, neurologist, on referral from Dr Boichev. Professor Mastaglia was of the opinion that the plaintiff suffered soft tissue injuries to his cervical and thoracolumbar spine with referred pain to the right shoulder region. He recommended that the plaintiff continue with a conservative program of treatment, including neck exercises and hydrotherapy.
Professor Mastaglia saw the plaintiff again in October 1999. The plaintiff reported that he was continuing to suffer from neck and back pain and right shoulder pain. He also suffered episodes of dizziness. Professor Mastaglia recommended that the plaintiff continue with his conservative treatment.
On 8 May 2000 Professor Mastaglia wrote a further report on his earlier reviews of the plaintiff. Professor Mastaglia's diagnosis was that the plaintiff suffered a significant whiplash type injury to the cervical spine and a less significant injury to the lower spine. The injuries were primarily soft tissue injuries without any significant damage to the spinal nerve roots or cord. Professor Mastaglia was uncertain as to whether there was any relationship between the motor vehicle accident and the episodes of dizziness.
In July 2000 Professor Mastaglia reviewed MRI scans which had been taken of the plaintiff in June 2000. These showed evidence of multiple cervical degeneration and bulging. While these findings indicated that the changes to the plaintiff's spine were permanent in nature Professor Mastaglia did not feel that they threw any further light on whether his symptoms were likely to be permanent nor on the extent to which he would remain restricted in his ability to work.
In April 2000 Professor S Hollingworth, occupational physician, saw the plaintiff at the request of the defendant's insurer. Professor Hollingworth found some abnormal illness behaviour by the plaintiff and he was unable to explain why the plaintiff would not be able to work. He found no objective evidence of disability.
On 2 August 2000 Mr B S Slinger, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff's solicitors. The plaintiff reported to Mr Slinger that he was suffering from headaches every one to two days, pain in the neck and thoracic spine and pain in the right shoulder. Mr Slinger diagnosed soft tissue injuries to the spine occasioned by the motor vehicle accident. He assessed the plaintiff as being permanently unfit for work as a slaughterman and that he was fit to return to a work trial with gradually increasing hours doing work that avoided any heavy lifting or repetitive bending. The type of work he suggested included work as a light store person, retail sales, driveway attendant, console operator or similar.
In his evidence Dr Boichev said that he had advised the plaintiff to limit his consumption of Panadeine Forte to occasions when the pain was intolerable. Mr Slinger said that Panadeine Forte is a very strong analgesic pain killer and the plaintiff's consumption of it should be as managed by his general medical practitioner.
In August 2000 Dr Boichev referred the plaintiff to Dr H B Hamzah, anaesthetist and consultant in pain management. Dr Hamzah was unable to achieve any significant long term relief of the plaintiff's symptoms.
Mr Edibam again saw the plaintiff in November 2000. Although the plaintiff reported to him significant disabling symptoms Mr Edibam found no evidence of any ongoing pathology as a result of any injury at the time of the motor vehicle accident and he saw no reason why the plaintiff could not continue to work full time as a slaughterman. In Mr Edibam's opinion there was no underlying organic cause for the plaintiff's complaints of pain.
I have no difficulty in concluding that the plaintiff suffered an injury in the motor vehicle accident. He has given evidence of the symptoms immediately following the accident and the plaintiff was seen by Dr Boichev approximately an hour after the accident and has continued to be seen by him. Dr Boichev has diagnosed the plaintiff as suffering from injuries to his neck, his right shoulder and his thoracic and lumbar spine.
The plaintiff gave evidence that his current condition is that he suffers pain from the middle of his back to the base of his skull and in his right shoulder. He suffers from intermittent pain in his lower back. The plaintiff's evidence was that as a result of these symptoms he is unable to return to heavy work such as work as a slaughterman. I accept that the plaintiff continues to suffer pain of the kind that he described to me, but I have concluded that there was an element of exaggeration of the symptoms. This element of exaggeration was confirmed by the examinations of the plaintiff by medical practitioners such as Professor Hollingworth and Mr Slinger, who found some inconsistencies in the plaintiff's presentation to them. While I have concluded that there was an element of exaggeration in the plaintiff's evidence of his symptoms, I nevertheless accept that he does suffer symptoms of the kind that he has described and that these symptoms prevent him from carrying out heavy physical labour.
I have set out earlier in this judgment the range of views to the plaintiff's current condition. Medical practitioners such as Dr Boichev, Professor Mastaglia, Mr Slinger, Mr Bell and Mr Janes have assessed the plaintiff as suffering from injuries to his muscles and ligaments in the motor vehicle accident which have resulted in ongoing symptoms. On the other hand, Professor Hollingworth and Mr Edibam have concluded that there is no objective evidence of disability or evidence of ongoing pathology and so they reject any relationship between the symptoms which the plaintiff reports and the motor vehicle accident.
I am unable to accept the opinions of Professor Hollingworth and Mr Edibam on this issue. As I have said, I accept the plaintiff's evidence that following the accident he has suffered symptoms in his neck, back and shoulder and that he continues to suffer from those symptoms. I accept also the opinion of Mr Slinger that the plaintiff has suffered soft tissue injuries to his muscles and ligaments in those areas which have been productive of pain and which restrict the plaintiff's capacity to work. I also accept Mr Slinger's opinion that the plaintiff's condition is likely to remain much the same as it now is.
For his non‑pecuniary damages for the pain and suffering suffered at the time of the accident and his continuing pain, suffering and restrictions, I assess the plaintiff's case to be 12 per cent of a most extreme case. This results in an award of general damages of $16,000.
At the time of the accident the plaintiff was earning $466.27 per week before tax was taken out and $396.10 after tax. The plaintiff hoped to obtain employment as a Moslem slaughterman which would have increased his salary. It is unlikely that he would have obtained employment as a slaughterman with Clover Meats because in October 1998 his employer's abattoir closed down. Further even if he had not been injured the plaintiff would have had a period without work when the abattoir closed down and the employees were retrenched. I have therefore decided to calculate the plaintiff's past and future economic loss on the basis of his pre‑accident earnings.
The plaintiff has a retained capacity to work as described by Mr Slinger. However his prospects of that retained capacity being productive of income are poor because for the whole of his working life he has engaged in manual labour, he has a modest education and his English language skills are only fair. The plaintiff has endeavoured to obtain employment since the accident but he has been unable to do so. I make no deduction from his claim for past loss of earnings for retained earning capacity. For the future I have made a deduction of 25 per cent for the plaintiff's poor, but not entirely hopeless, prospects of his retained capacity being productive of income.
The period since the accident is 143 weeks. I calculate the plaintiff's past loss of earnings, therefore, at $56,642. Interest on that sum at 3 per cent per annum is $4,651.
The plaintiff will turn 50 in July. The multiplier for the period of 15‑1/2 years until he reaches the retirement age of 65 is 532.4. A weekly loss of $396.10 for that period equates to $210,883. From this figure, I deduct 6 per cent for contingencies and a further 25 per cent for retained earning capacity to give a figure of $148,673.
At the time of the accident the plaintiff's superannuation contributions were 7 per cent of his income. On 30 June 2000 they would have increased to 8 per cent. I have used a figure of 7.5 per cent for the whole period. 7.5 per cent of his weekly before tax income of $466.27 is $34.97. For the 143 weeks since the accident this equates to $5,000. I have deducted from that sum 30 per cent for fund management expenses and taxation to give a figure for past loss of superannuation of $3,500. Interest on that sum at 3 per cent per annum is $287.
For the future the plaintiff's superannuation contributions would increase to 9 per cent on 30 June 2002. I have therefore used a figure of 8.5 per cent. 8.5 per cent of $466.27 is $39.63. Using the multiplier of 532.4 gives a figure of $21,100. From that sum I have deducted 6 per cent for contingencies, 25 per cent for retained earning capacity and 30 per cent for fund management fees and taxes to arrive at a figure of $10,413.
For future treatment costs counsel for the plaintiff suggested I adopt a global figure for the cost of attending on his general practitioner and medication. There will undoubtedly be such expenses and I allow $1,000. Special damages have been agreed at $500.
From these figures $3,700 is to be deducted, being an advance against the plaintiff's damages which was paid by the defendant's insurer.
In summary therefore I assess the plaintiff's damages as follows:
General damages  $ 16,000.00
Past loss of earnings  $ 56,642.00
Interest on past loss of earnings                 $    4,651.00
Future loss of earnings  $148,673.00
Past loss of superannuation  $    3,500.00
Interest on past loss of superannuation       $      287.00
Future loss of superannuation  $ 10,413.00
Future treatment costs  $    1,000.00
Special damages  $      500.00
$241,666.00
Less advance  $    3,700.00
Balance$237,966.00