Antonis v Yatracos No. DCCIV-99-782

ANTONIS v YATRACOS
[2000] SADC 105

Judge Vanstone

This is an assessment of damages for injuries sustained when the plaintiff was hit by a motor car and knocked from his bicycle on the 18th September, 1997. The parties have agreed that the plaintiff bears ten per cent of the blame for the collision and therefore for his injuries which were to the left arm, shoulder, neck, lower back and knees.
The central areas of dispute are the extent of the injuries sustained by the plaintiff, the impact of their residual effects on the plaintiff’s ability to continue work as an apprentice panel beater and the extent to which his future earning capacity has been reduced.
The plaintiff was born on the 14th June, 1977. Therefore, he was 20 years of age at the time of the collision and is now 23 years old.
On the 21st July, 1997 he began his apprenticeship to Mr Lassen of M.E.C. Crash Repairs. He had been with that firm for perhaps a couple of weeks prior to that date completing what might be called a trial or probationary period. His immediate supervisor was Mr Kevin Mullen. Mr Mullen gave evidence and I found him to be in all respects a perceptive and sensible man and a reliable witness. He found the plaintiff from the outset to be a good worker with a positive attitude and a good grasp of the job, a grasp which put him ahead of others with similar experience. Whilst the accident occurred only two months into the apprenticeship and the plaintiff was away from work for some eight weeks, Mr Mullen’s opinion of him on his return did not change. For that reason, when Mr Mullen left M.E.C. Crash in the first few months of 1998 and took up work on his own account trading as M.E. Dale, he was keen to have the plaintiff go with him. The plaintiff’s papers were indeed signed over to him on the 14th February, 1998. Mr Mullen continued to supervise his work, and that of other apprentices.
Mr Mullen’s evidence was that, for a substantial period after his return to work, the plaintiff continued to work well. He progressed to more advanced work, which was necessarily heavier. It is customary in the business for workers to help each other with the heavy lifting which is from time to time required, but apart from that Mr Mullen did not observe that the plaintiff needed assistance. Like all the workers he would stretch and ease his back after difficult manoeuvres. But he did not ask for breaks additional to the usual “smoko” and lunch breaks.
At some point, Mr Mullen noticed a marked change in the plaintiff’s performance. He became uninterested, his work rate dropped, as did its quality, his swearing in the workshop and in the hearing of customers became a problem, and he was seen to throw his tools about. Mr Mullen felt as if the plaintiff did not want to be there. He spoke to the plaintiff about these problems several times without much result. The plaintiff did not in those discussions raise any physical difficulties he was having. Finally, Mr Mullen wrote a letter to the plaintiff dated the 22nd October, 1998, to formalise the expression of his dissatisfaction. Ultimately, the apprenticeship was terminated on Christmas Eve 1998. Only at the death-knock did the plaintiff tell Mr Mullen that he was experiencing problems with the work by reason of the residual effects of his accident injuries. Until then it did not cross Mr Mullen’s mind that that was the problem.
When asked over what period the change occurred, Mr Mullen replied “maybe months. I’m actually quite tolerant.” If it were inferred that the change occurred from say the end of July, 1998 (which would be, I think, an interpretation generous to the plaintiff) that would mean that from his supervisor’s viewpoint the plaintiff worked for six months post-accident at a very good standard, happily and without showing any sign of the injuries he had sustained.
The defendant relies on this somewhat unlikely picture of an apparently trouble-free period followed by rapid deterioration as lending support to his contention that it was not the residual injuries which led to the plaintiff’s sacking, but rather an unconnected change in his attitude to the job. The defendant suggested that the limited period during which the plaintiff’s work was satisfactory must be weighed against his poor record in previous jobs - twice having to leave positions in acrimonious circumstances - and at school, where he did not prosper.
Perhaps surprisingly, the defendant did not quarrel with the plaintiff’s contention that the same residual injuries led him to seek a discharge from the Army Reserve which he had joined, as a trainee, in August, 1997, just prior to the accident. The plaintiff’s evidence was that after the accident he delayed completing his recruit training at least once on account of his injuries. However, being under pressure to commence that training within a certain time-frame, he attended for that purpose over a two week period in May, 1998 and complied with a reasonably rigorous regime consisting of instruction and fitness training. Army Reserve documents show that on the 6th January, 1998, he had applied for discharge on medical grounds, but that was not ultimately processed until January, 1999. The plaintiff said that whilst he would have probably been able to continue in the Army Reserve, he could only do so at cost to his physical resources and he considered that his panel beating apprenticeship had to be his first priority.
Before turning to examine the medical opinion bearing on this question, it is necessary to set out in more detail the nature of the plaintiff’s injuries. They were as follows:

1................ Left forearm

There was a fracture of the radius, which was internally fixed by a plate and screws upon admission to the Royal Adelaide Hospital. On the 24th March, 1999 the fixation was removed by Mr Gordon Ormandy, orthopaedic surgeon. At trial the plaintiff said that he was left with occasional stabbing pains, some pain when actively using his arm and a decrease in strength. Estimates of residual disability varied between five per cent to ten per cent. Whilst such estimates have very little ultimate use, they do provide a tangible guide as to the doctors’ judgment of the severity of the ongoing difficulties. I was shown the surgical scar which is several inches long but faint.
2.Left shoulder
There were abrasions to the left shoulder and there was instability in the shoulder joint. X-rays showed a subluxation (widening) of the acromio-clavicular joint, described by one surgeon as being one stage before a dislocation. There was no reduction to range of movement but some movements caused pain. The symptoms seemed to have resolved a good deal in the year or so following the accident. At trial, the plaintiff said that his collar-bone protruded slightly and that he now suffered pain only when he used his left arm above his head. Estimates of residual disability tended towards five per cent.
3.Lower back
Although the low back pain was not prominent among the plaintiff’s complaints whilst at the Royal Adelaide Hospital, it became the most serious concern over time. The injury was described as a mild ligamentous strain (Mr Ormandy). However, X-rays ordered by Mr Gordon Morrison, orthopaedic surgeon, in February, 1999 showed a bilateral pars interarticularis defect (spondylolysis) with a minimal degree of spondylolisthesis. It was common ground among all the medical witnesses that this condition pre-dated the accident and but for that trauma would likely have remained asymptomatic for some time. There was a variance as to whether, as a matter of probability, it would ever have become symptomatic in the absence of some traumatic event. Mr Ormandy considered that the plaintiff had, in any event, a limited life span as a panel beater. The shorter of the two ranges he gave as estimates was 15-20 years. Mr Morrison was not prepared to make an estimate without resort to statistical material. Mr Brian Cohen, general surgeon, considered that the degree of risk to the back was certainly increased because of the pre-existing condition, but whether subsequent strain or degeneration would have ended the plaintiff’s career was a question turning on matters of attitude, character and the like, as well as physiological factors. The other surgeon to give evidence was Associate Professor Bauze. Whilst I found all the surgeons to be well qualified and helpful, I considered Associate Professor Bauze to be the most impressive. He had a particular interest in, and experience with, spinal injuries. He considered that the spondylolysis would certainly have caused problems at some stage of the plaintiff’s career. He said the common picture with this congenital condition was of a slow deterioration. It was a matter of when rather than if the symptoms became significant. The evidence of the way in which a panel beater works - sporadically lifting heavy panels, using heavy tools, prolonged bending and working in unnatural positions - only supports that view. Interestingly, Mr Mullen commented “you hardly see an old panel beater”. On the basis of Associate Professor Bauze’s evidence, coupled with the other evidence, I find that, even without the accident, the plaintiff would have had to seek alternative employment not involving heavy work at some, perhaps not too distant, stage. The accident has brought that date forward. It is necessary, therefore, that I take that matter into account as a negative contingency.
At trial, the plaintiff complained of constant back pain, particularly with prolonged sitting or running for long periods or a lot of heavy work. Estimates of residual disability taking into account the spondylolysis varied from fifteen per cent to twenty per cent.
4.Neck
The plaintiff suffered pain to the left side of his neck after the accident, and complained of residual stiffness and pain at the time of the trial. Some slight restriction of movement was noted in a number of the medical examinations. Most of the surgeons adjudged a residual disability of the order of five per cent.
5.Knees
To what extent the plaintiff suffered any residual damage to his knees was a matter of dispute at trial. Certainly both showed abrasions at the time of his admission to hospital but the plaintiff did not advert to any ongoing problem with them until the 13th January, 1998 when he complained to Mr Ormandy of some aching pain in the right knee, and July, 1998 when he reported intermittent aching in the left knee. Whilst I can accept that other more pressing injuries probably caused the plaintiff to overlook mention of his right knee until January, 1998, to find the left knee discussed for the first time almost ten months after the accident is surprising. It should be remembered that by this time the plaintiff had long resumed running and had undertaken the Army Reserve training, and was performing quite advanced panel beating work. I consider that the plaintiff has not discharged the onus of proving that any difficulty he had with his left knee in mid-1998 was related to the injuries he sustained in September, 1997. To my mind this evidence typifies a tendency in the plaintiff to blame the accident for every set-back which occurred thereafter.

The thrust of the medical evidence was that, in selecting new employment opportunities, the plaintiff should avoid jobs entailing heavy lifting, repetitive bending, use of his left arm above shoulder height, and a combination of leaning and lifting.
The defendant’s argument that the injury effects were not responsible for the plaintiff losing his apprenticeship relied on progressive medical opinion throughout 1998 to the effect that the plaintiff was coping with his work. For example, Mr Ormandy reported on the 13th January, 1998 that he had “some difficulty with his work duties”, but by the 7th July, 1998 said “His ongoing sprain of the neck and back does not impact upon his ability to work as a panel beater and in spite of continued problems with his left arm he appears to be carrying out these tasks”. After seeing him on the 7th January, 1999, Mr Ormandy said “I am unable to say whether his complaints of pain and disability in the region of the left forearm and his lower back was the entire cause of him having lost his job. However the event appears to have caused him to re-emphasise symptoms in both areas”.
Mr Morrison did not see the plaintiff until after his dismissal from work.
Mr Cohen reported on the 15th December, 1997 that the plaintiff was “managing the work” and expressed the view on the 6th July, 1998 (having seen the plaintiff again on that day) that he “is coping with the work, but as mentioned, it is aggravated and he does need to take breaks or at times requires assistance with the heavier duties.” On the 10th November, 1998 Mr Cohen foreshadowed that, in the longer term, the plaintiff might need to look for less physically demanding work.
Mr Cohen was specifically asked whether the period of improvement and the apparently good work performance over six months or so tended to suggest an alternative cause for the plaintiff’s work difficulties late in 1998. I drew from his responses that he saw nothing inherently improbable in the picture presented subsequent to the accident.
Unfortunately, there was no other specialist medical evidence offered on that issue. Associate Professor Bauze was not asked about it. But it is apparent from the evidence of the plaintiff’s general practitioner, Dr Dottore, that on the occasions in 1998 when he saw the plaintiff (which were all in the second half of that year) the plaintiff made contemporaneous complaints of back pain linked with his work. In September of that year his condition was severe enough to lead him to accept a steroid injection into the sacro-iliac joint, which gave only temporary relief. Sometimes the complaints linked pain to the occasionally quite energetic personal training which the plaintiff undertook during that year.
It is not difficult to understand the defendant’s scepticism of the plaintiff’s evidence that his inability to maintain his work-rate and previously high standards was due solely to his injuries. As previously mentioned, the plaintiff’s work record prior to joining M.E.C. Crash was very poor. He had at no stage demonstrated an ability to perform well over a period even as long as a year. And some of the criticisms of the plaintiff as a witness are in my view well made. He was not frank with the medicos as to the reasons for his dismissal from work. The immediate reasons for it did not emerge until the trial. He asserted both to the doctors and in evidence that at work he had been allowed extra breaks and had been given extra help with some duties. But I accept the evidence of Mr Mullen that at no stage prior to the dismissal was any concession sought by or given to the plaintiff. Nor was the plaintiff frank, in my assessment, about his Army Reserve training. In evidence he sought to depreciate its sometimes demanding nature. To the specialists he did not mention it at all. Perhaps he thought it would undermine his position.
There was mention in the plaintiff’s examination of the use of hard drugs in 1998 and of excessive use of liquor. The plaintiff asserted that this was a response to his injuries and to the inability to maintain the strict fitness regime to which he had formerly adhered. These issues were not explored in any depth at all. But those matters, together with the nature of his behaviour leading to his dismissal viewed against his previously poor work record, cause me to doubt that the injuries and their effects were solely responsible for the termination of the apprenticeship. Nevertheless, in the state of the evidence, I am not prepared to discount the injuries as a substantially contributing factor. And, in those circumstances, I consider the plaintiff should be compensated for the period of unemployment which followed.
It is a nice question as to how far that period should extend. The position is complicated by the diagnosis of adjustment disorder with depressed mood offered in evidence by Ms Fiona Stevens, registered psychologist, and accepted by Dr Karl Lashchuk, psychiatrist, in a report tendered by consent. Both those practitioners saw the plaintiff at the request of his solicitors. Although the defendant tendered a report of Dr Patrick Flynn, psychiatrist, which quite powerfully disputed that diagnosis, having not had the benefit of evidence from Dr Flynn I do not think I can prefer that to the evidence of Ms Stevens, which was thoroughly tested in cross-examination. There is nothing about her evidence which would lead me to reject it out of hand.
Ms Stevens first saw the plaintiff in July, 1999 and she saw him on three occasions. She found the accident injuries to have been the cause of the psychiatric condition. She considered that the plaintiff required counselling to address his depressed condition, and that he was not at that time fit for full-time or part-time paid employment. The plaintiff declined to undertake that counselling. Dr Lashchuk saw the plaintiff in November, 1999 and, as I said, offered the same diagnosis, although he did not consider that it precluded the plaintiff from obtaining employment. Dr Flynn saw the plaintiff more recently, in February, 2000, by which time his presentation could have changed markedly since Ms Stevens’ last review. In the state of this evidence, whilst I am prepared to accept the correctness of the diagnosis by Ms Stevens and Dr Lashchuk, I am not satisfied that the condition precluded the plaintiff from working.
Whilst there are a number of unanswered questions arising from the history of events I have outlined and from the post-apprenticeship period generally, including how earnestly the plaintiff sought new work, I consider that the plaintiff has discharged his onus of proving that his unemployment during 1999 and to date is attributable to the residual physical injuries he carried from the accident. Consequently, I find that, in terms of past economic loss, he should be compensated for the income he would have earned during that period from his panel beating apprenticeship.
The position with respect to the Army Reserve work is more difficult to ascertain. The plaintiff gave evidence that he joined the Army Reserve in August, 1997. His motivation was in part to enjoy the physical aspects of it but he also had a long range hope of joining the Special Air Service, a division of the Regular Army. He said that he had in mind to present himself during up to 100 days per year (which is the maximum available) once he had completed his reservist training. Whether he would ever have made good that hope cannot be known. As already noted he completed at least one leg of the training in May, 1998 but was discharged in January, 1999 without achieving a rank. Whilst he could have rejoined at any time, he has apparently not chosen to, even though the competition for his energies in the form of his full-time work fell away some time ago. The plaintiff only earned $291 in the Army Reserve during the period of his enlistment. It is not clear to me when he would have achieved a rank had he continued, what days he would then have been offered, and how he could have combined that service with the increasingly demanding panel beating job. Nor is there evidence of whether Mr Mullen would have been prepared to allow time off, if that indeed had become necessary.
In support of his application for a medical discharge - which the plaintiff pursued in November, 1998 - he obtained a letter from his new general practitioner, Dr Thompson. While it was never delivered, being unnecessary, it is a convenient record of Dr Thompson’s views at that time of the plaintiff’s ability to persist with the panel beating and Army Reserve simultaneously. The letter supports the plaintiff’s evidence that it was the combination of the two which was too arduous. I accept the plaintiff’s evidence that he found the physical requirements of his job far more demanding than anything asked of him in his reservist training.

In all those circumstances I am not satisfied that the plaintiff was precluded from earning income in the Army Reserve by reason of his injuries and accordingly I do not consider that he should be compensated for loss of Army Reserve income in 1999 or 2000, whatever the quantum of it might have been.
The plaintiff called evidence from a chartered accountant, Mr Hall, in an effort to provide a framework for calculation of past economic loss and estimates of amounts which might have been earned in the future in certain circumstances. In respect of past earnings I have chosen to approach the matter a little differently than did Mr Hall. For the initial period away from work of eight weeks, I allow seven weeks at $170 per week net plus an amount for superannuation. Thereby I arrive at a figure of $1,250. Using the wage rates provided by him (and independently proved as well), and taxation and superannuation rates provided in his report, I have then calculated what the plaintiff would have earned, after taxation, during 1999 and for the first eight months of 2000, assuming his apprenticeship had proceeded uneventfully. That amounts to about $25,600. The question arises whether some deduction should be made from that in relation to security agents work that the plaintiff performed in 1999 and 2000. The plaintiff earned $2,700 gross from that in the 98/99 year. Probably most, if not all, of that work was done in the first half of 1999. It is not clear to what extent the plaintiff would have done any such work had his apprenticeship continued. Nor is it clear how much he earned in the 99/00 year from it, although it may well have exceeded $2,700. Notwithstanding that the lack of clarity lies at the feet of the plaintiff, I have determined not to make a deduction from the panel beating figure already arrived at. I accept the plaintiff would probably have earned some income from security work in any event, and the issue was not explored at trial. Thus the plaintiff might be a little better off under this head than the facts justify.
Therefore, I assess past economic loss at $26,850. Interest is allowable on this amount and employing fairly rough calculations based on a rate of four per cent I arrive at $750 for interest.
I turn to the question of loss of earning capacity. In my opinion, the plaintiff has lost the capacity to work in the area chosen by him. Although a number of heavy manual jobs are now outside his reach, the plaintiff retains the ability to work in a wide range of occupations. I accept that in obtaining a position he will be competing against persons who are fully fit and consequently he may suffer periods of unemployment both in the immediate future and in the distant future. However he has the advantage of youthfulness, and when his motivation improves I am confident he will find means of exercising his remaining - and as I have said substantial - earning capacity. It is worth noting again in this context the security work. The plaintiff said that he enjoyed that work and took as much of it as he was offered. There is no suggestion that his pre-existing injuries hampered him in gaining that work.
The plaintiff’s counsel argued that I should take into account his long term plan to join his brother-in-law in business after completing his apprenticeship. In my view it is not appropriate to do so. The plan was always contingent on a number of eventualities. Moreover, the plaintiff’s abilities as a manager and business man remain wholly untested. To run a small business today requires a host of skills and there is no solid reason to credit the plaintiff with them. For those reasons in judging what was the plaintiff’s earning capacity prior to the accident, I prefer to act on the basis that he would have remained a wage earner.
Material from Mr Hall establishes that assuming the plaintiff worked from the trial date as an employed panel beater until age 65 earning the award rate, his net wages, discounted by a factor of five per cent, would total about $350,000. The plaintiff’s counsel suggested that the loss of earning capacity might be 50 per cent and that this factor could be utilised to calculate the value of lost earning capacity. I do not consider that the plaintiff has lost half his capacity or even close to that proportion. I reiterate that the plaintiff’s work record to the time of the accident was unimpressive. In his short working life he twice had been effectively dismissed after arguments with his superiors and his record shows periods of unemployment, some of which demonstrated a lack of motivation. And, as I have said, in my view the behaviour leading to his dismissal by Mr Mullen was not solely attributable to his injuries. Bearing in mind that the plaintiff was unlikely to have persisted with panel beating beyond say, the age of 40, the loss to the plaintiff cannot be quantified in the manner suggested.
Taking into account all these factors and the possibility of other eventualities which might have in any event reduced his working capacity, I assess the plaintiff’s loss under this head as $90,000.
In assessing damages for non economic loss, it is necessary, pursuant to section 35A(1)(b) of the Wrongs Act, 1935, that I ascribe a number between 1 and 60 to the plaintiff’s injuries. In doing so I have regard to the initial period following the accident including the fact of surgery on his left radius - he spent two days in the Royal Adelaide Hospital - the further procedure to remove the fixation, the scarring, and to the plaintiff’s pain and suffering and loss of amenities of life generally. The figure which I have concluded is appropriate is 12. The relevant multiplier is agreed to be $1,550.
The position with respect to special damages is not as clear as it might be. I have been provided with a schedule which records the various claimed attendances, many of which have been paid by the SGIC. However the defendant denies liability for any expenditure for massage or acupuncture. Coupled with many of the acupuncture items are items referred to as “Herb”. There is no evidence touching those entries. The acupuncture treatment occurred over the period April to August, 2000, at a cost of $1,430. The plaintiff’s evidence was that the treatment was recommended by Dr Faggotter, a general practitioner, and performed by another practitioner. The treatment was directed to the lower back, shoulder, neck and knees. There is no evidence as to whether the treatment comprised a course nor any assessment of its results. In those circumstances it is probably generous for the plaintiff to allow two-thirds of the expenditure, but I do so. However, I do not allow the “Herb” items totalling $490.
As to the massage, this was utilised over the period November, 1998 to March, 1999, at a cost of $2,500, and upon referral by Dr Dottore. The plaintiff claimed to have had some relief from it. Mr Cohen, at least, approved this treatment as reasonable in principle, but there is no evidence that the level of the expenditure was recommended or justified. Why it was concentrated over such a short period is unclear.
In those circumstances, I am prepared to allow two-thirds of it. The special damages which I consider to be justified amount to the sum of $6,484. I note that a significant part of that has already been paid.
In terms of future medical expenses the preponderance of opinion is that it is highly unlikely that any further surgery will be required. Whilst treatment for the plaintiff’s adjustment disorder was recommended by both Ms Stevens and Dr Lashchuk, it was declined by the plaintiff. In those circumstances it would not seem to be appropriate to allow for it. However, I do consider it appropriate to allow $1,000 to cover possible future expenditure on review by the plaintiff’s general practitioner, analgesics, massage and acupuncture.
A summary of my assessment of the quantum of damages is therefore as follows:

Non economic loss $18,600

Economic loss
Past 26,850
Future 90,000

Special damages 6,484

Future medical treatment 1,000

Interest on past economic loss 750
_______

$143,684
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The total arrived at then has to be adjusted for the plaintiff’s contributory negligence of ten per cent. That gives an amount of $129,315.60.
I enter judgment for the sum of $129,315.60, noting that an amount towards special damages has already been paid. I shall hear the parties as to costs.

[2000] SADC 105

1 September 2000