Arslanoski v Saddik
[2008] WADC 7
•25 JANUARY 2008
ARSLANOSKI -v- SADDIK [2008] WADC 7
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 7 | |
| Case No: | CIV:23/2006 | 28-31 AUGUST 2007 | |
| Coram: | MARTINO DCJ | 24/01/08 | |
| PERTH | |||
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Damages assessed | ||
| PDF Version |
| Parties: | REGEP ARSLANOSKI ALBERT MURAD SADDIK |
Catchwords: | Torts Negligence Road accident Personal injuries |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ALBERT MURAD SADDIK
Defendant
Catchwords:
Torts - Negligence - Road accident - Personal injuries
Legislation:
Nil
Result:
Damages assessed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Simon Walters
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MARTINO DCJ: On 19 May 2004 at approximately 2 pm the plaintiff, Mr Arslanoski, was the driver of a Statesman which was struck from behind by a Commodore driven by the defendant, Mr Saddik. He claims damages for personal injuries he alleges he suffered in that accident. Mr Saddik admits liability for the accident, but denies that Mr Arslanoski suffered any injury in it.
Mr Arslanoski
2 Mr Arslanoski was born on 25 April 1958 in Macedonia. When he was ten years old he migrated to Australia with his family. He completed Year 10 at high school in Perth and left school in 1975.
3 He married in 1980 and has four adult children from that marriage. He also has an adult son from an earlier marriage.
4 Mr Arslanoski's evidence as to his working history prior to the accident was that when he left school he worked for two and a half years as a clerical storeperson. In approximately September 1978 he commenced employment as a cleaner with the Education Department. He became a supervisor cleaner in that employment and in 1980 also worked in the evenings as a storeperson for the department.
5 In September 1984, while working for the Education Department, he suffered a lower back injury and a neck injury when he lifted a filing cabinet.
6 Following that accident he was off work for a lengthy period. As part of his rehabilitation he was retrained in clerical work, however he was not successful in obtaining employment in that field.
7 In 1996 or 1997 he commenced working part time as a cleaner for Berkeley Challenge. He worked for that company for approximately 13 to 14 months and then obtained employment as a cleaner with another company. He became operations manager with that company and by 1998 or 1999 he was working approximately 30 to 35 hours per week.
8 He left that employment when the ownership of that company changed. He obtained employment with another company.
9 In 2000 he commenced carrying on business as a cleaner, doing cleaning for the Fast Eddy's fast food restaurant. In 2004 a receiver was appointed to that business and Mr Arlansoski commenced cleaning Homeswest houses. He was doing that work at the time of the motor vehicle accident.
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The motor vehicle accident
10 Mr Arslanoski was the only person involved in the accident to give evidence about it. Neither his wife, who was a passenger in Mr Arslanoski's car, nor Mr Saddik was called to give evidence.
11 Mr Arslanoski's evidence was that on the day of the accident he was stationary on Mounts Bay Road with his foot on the brake pedal, waiting to turn right into King's Park Road, when his car was struck from behind by Mr Saddik's Commodore.
12 The collision forced his car forward approximately ten to 15 metres and damaged it beyond repair. He had purchased it for $25,000 a couple of years before the accident.
13 He had seen Mr Saddik's vehicle coming from behind and he stretched to his left to protect his wife from glass that came from the back windows, which had been shattered by the force of the collision.
14 Mr Arslanoski was uncertain as to whether he had struck his head in the accident. His evidence in cross-examination was that he probably had struck his head on the pillar between the windows on the side of the car.
15 He has told some medical practitioners, such as Mr Philip Fisher, an ear nose and throat surgeon and Professor Francis Mastaglia, a consultant neurologist, that he struck his head in the accident. He appears not to have said that he struck his head to other medical practitioners, such as the doctor he saw at Sir Charles Gairdner Hospital on the day of the accident and his general medical practitioner Dr Judelman. He told Mr John Ker, a consultant physician in rehabilitation medicine, that he could not recall striking his head.
Mr Arslanoski's condition immediately after the accident
16 Mr Arslanoski's evidence was that he did not have any symptoms immediately after the accident. He attributed this to shock and to his concern for his wife. Mrs Arlanoski was taken to hospital by ambulance. Mr Arslanoski's daughter took him to Sir Charles Gairdner Hospital. His evidence was that a person who was working at the hospital noticed liquid and a bit of blood coming from his right ear. Mr Arslanoski had bad headaches. The staff at the hospital gave him pain killers and told him to see his doctor the next day.
17 In a report dated 8 July 2004 Mr Aled Williams, a Staff Specialist in the Emergency Department at Sir Charles Gairdner Hospital, wrote that
(Page 5)
- Mr Arslanoski attended the Emergency Department at 6.30 pm on 19 May. Mr Arslanoski reported that he had no initial problems following the accident but a couple of hours later he had developed some pain in his right outer thigh and a discharge from his right ear. Examination revealed that he had a right otitis externa which was unrelated to the accident and there was no abnormality detected in his outer thigh. Otitis externa is inflammation or infection of the external auditory canal or ear. Mr Williams had not seen Mr Arslanoski since 19 May. Mr Williams anticipated that there would be no long term problems from the accident.
Mr Arslanoski's evidence as to his condition following the accident
18 Mr Arslanoski's evidence was that he saw his general practitioner on the day after the accident. That evidence appears not to be correct. Dr Harold Judelman, a general medical practitioner, was not called as a witness, but his reports were tendered in evidence by consent. Mr Arslanoski's evidence was that Dr Judelman was his general practitioner before and after the motor vehicle accident.
19 In his report dated 5 August 2004 Dr Judelman listed dates on which he had seen Mr Arslanoski following the accident. The first occasion listed was 23 May 2004, four days after the accident.
20 Mr Arslanoski's evidence was that following the accident he experienced headaches and he started to get a lot of pain in his low back, sharp pains in his right leg shooting down to his heel, pain in the thoracic spine and pain in his arms and hands.
21 His evidence was that following the accident he took a week off work. He returned to work and continued working for a while but he was unable to continue due to pain and sleepless nights. The pain was mainly in his back, head and arms.
22 He gradually reduced the hours that he was working and he reduced the amount of physical work that he performed while at work, but eventually he had to cease working in approximately January 2005.
23 Dr Judelman referred Mr Arslanoski for physiotherapy. Mr Arslanoski's evidence was that with physiotherapy and exercises his condition improved and that on 18 December 2005 he was able to return to part-time sub-contract cleaning work, initially working approximately three hours a day. He has gradually built up his hours of work so that he is working approximately 25 to 30 hours a week, taking a lot of breaks while he is working and consuming analgesic medication.
(Page 6)
24 His evidence was that bending, sweeping, mopping and standing cause him back pain. He is unable to use heavy industrial cleaning equipment.
25 Mr Arslanoski's evidence was that at the time of the trial his condition was a lot worse than it was before the motor vehicle accident.
Medical treatment and opinions
26 In his report dated 5 August 2004 Dr Judelman reported that Mr Arslanoski complained of headaches, pain in the neck, bilateral shoulder pain, pain, discomfort and pins and needles in his right leg and that at Sir Charles Gardiner Hospital he had noticed that he had a "leaking" right ear that was not there before. Dr Judelman also reported that Mr Arslanoski was having ongoing difficulty with pain and discomfort.
27 On 27 January 2005 Dr Judelman wrote that from June 2004 Mr Arslanoski had only been able to work 4 – 6 hours a day 3 – 4 days a week, whereas before the accident he had been working 10 – 12 hours a day 6 – 7 days a week. Dr Judelman appears in that report to have been passing on information that had been provided to him by Mr Arslanoski, but Dr Judelman did not indicate that he disagreed with Mr Arslanoski's statement as to his work capacity.
28 In his report dated 8 July 2005 Dr Judelman wrote that Mr Arslanoski continued to have pain and discomfort and that he had to give up work. Dr Judelman was unsure about Mr Arslanoski's future work capacity.
29 The following year, in his report dated 13 July 2006, Dr Judelman reported that in the previous twelve months Mr Arslanoski had suffered ongoing severe pain and discomfort in his neck and lower back for which Dr Judelman had prescribed medication for pain, but no other treatment. He recorded that in early 2006 Mr Arslanoski returned to cleaning work to help his financial problems, but was only able to do some of his work and employed others to help him.
30 In his report dated 18 January 2007 Dr Judelman wrote that he had seen Mr Arslanoski on 9 September and 15 November 2006 and that Mr Arslanoski continued to suffer pain in his neck, shoulder blades and lower back. Mr Arslanoski had stated that he had to take two weeks off work due to pain.
(Page 7)
31 Dr Judelman's final report was dated 19 July 2007. He had seen Mr Arslanoski on 19 July 2007. His main complaints were essentially unchanged. Mr Arslanoski told him that he was working as a cleaning supervisor 25 – 28 hours a week. In Dr Judelman's opinion Mr Arslanoski was able to work as a supervisor but was unable to do heavy physical work and the number of hours he could work a week was uncertain. Dr Judelman considered Mr Arslanoski's condition to have stabilised sufficiently to enable his claim to be finalised.
32 Dr Judelman referred Mr Arslanoski to Mr Fisher. Mr Fisher saw Mr Arslanoski on 29 June 2004. Mr Arslanoski's symptoms were of hearing loss and discharge from the right ear. Mr Fisher examined Mr Arslanoski and observed a perforation of the right tympanic membrane with some mucoid discharge and a small area of granulation on the canal wall of the left ear. A report of a CT scan of Mr Arslanoski's head stated that the scan showed soft tissue in the external canal, the mastoid and around the spheroid.
33 In his report dated 2 July 2004 Mr Fisher expressed the opinion that there were two possible causes of the condition of Mr Arslanoski's ears:
1. acute traumatic perforation with a rupture of the tympanic membrane with secondary infection of the middle ear and the mastoid; and
2. chronic middle ear and mastoid disease with previous perforation with the trauma having caused some discharge and the secondary infection.
34 The first possibility was Mr Fisher's working diagnosis, which was consistent with the history that had been given to him, but he could not exclude the second possibility.
35 Mr Arslanoski was to continue using antibiotic drops and Mr Fisher planned to review him four weeks later, if there was an acute perforation it was likely to respond spontaneously. Mr Fisher also planned to arrange further scans of the mastoid and spheroid to see if the soft tissue had cleared. If it did so that would be consistent with the condition of Mr Arslanoski's ears being the result of an acute perforation related to the motor vehicle accident.
36 Mr Fisher wrote a report dated 13 September 2004, after seeing Mr Arslanoski on 17 August 2004. Mr Arslanoski's right ear had improved, but the perforation had not healed over. Mr Fisher considered the condition of Mr Arslanoski's ears to be essentially unchanged.
(Page 8)
37 Mr Fisher saw Mr Arslanoski on 14 February 2005 and he recommended surgery, however Mr Arslanoski did not have that surgery.
38 On 25 June 2007 Mr Fisher saw Mr Arslanoski again. The perforation in the right tympanic membrane had healed over. An audiogram performed on that day showed that Mr Arslanoski's hearing in the right ear was the same as in the left and, in Mr Fisher's opinion Mr Arslanoski had no residual ear disability.
39 Mr Fisher's oral evidence was that he asked Mr Arslanoski on a number of occasions whether he had any previous problems with his hear. Mr Arslanoski told him that he had not.
40 Mr Fisher thought that Mr Arslanoski did not have chronic middle ear and mastoid disease. Mr Fisher did not know the exact nature of the trauma that caused the perforation of the right tympanic membrane and was unsure why it took so long to heal. Nevertheless, in his opinion, the fact that the perforation finally healed over tended to confirm that the perforation had been caused by trauma of some sort.
41 He also considered that if Mr Arslanoski had suffered from the problems with his ear for which Mr Fisher was treating him for some time before the accident his general practitioner would have known about it.
42 Mr Fisher said that if he had a history that Mr Arslanoski had told a medical practitioner that he had holes in his eardrum which prevented him from swimming it would mean that chronic ear disease was more likely, although it would depend upon what had happened to the holes. If the holes had been ruptures then it may be that Mr Arslanoski is a person who is susceptible to ruptures of the eardrum.
43 In cross-examination Mr Arslanoski was asked if he recalled telling a psychiatrist following his accident in 1984 that he had holes in his eardrum which prevented him from swimming. Mr Arslanoski recalled that he did have a hole in his eardrum, but was uncertain what the problem was caused by and what he had told the psychiatrist.
44 The Insurance Commission arranged for Mr Pek Goh, an ear, nose and throat surgeon, to see Mr Arslanoski on 18 November 2004. Mr Goh's report dated 23 November 2004 was tendered into evidence by consent. Mr Arslanoski had profuse discharge from the right ear with an anterior perforation and associated hearing loss. Mr Arslanoski told Mr Goh that he had no previous ear problems of any consequence. Based upon that history it was Mr Goh's opinion that Mr Arslanoski's right ear
(Page 9)
- problems were consistent with the injury sustained in the motor vehicle accident.
45 Mr Arslanoski's solicitor arranged for Mr Joseph Levit, an ear, nose and throat surgeon, to see Mr Arslanoski on 5 October 2005 and 22 June 2007. Mr Levit's reports dated 12 October 2005 and 22 June 2007 were tendered into evidence by consent. Mr Levit did not express any opinion on Mr Arslonoski's ear because in the first report because Mr Arslanoski was due to have an operation performed on his ear by Mr Fisher and Mr Arslanoski had an unrelated gum problem for which he was to have urgent attention. In the second report Mr Levit said that he was able to be of very little assistance because Mr Fisher was to review Mr Arslanoski on 25 June 2007. Mr Arslanoski had wax epithelial debris in both outer ear canals, which Mr Levit did not interfere with. An audiogram on 22 June 2007 suggested a mixed deafness in the right ear, with normal hearing in the left ear. Mr Levit recommended that a definitive audiogram was best deferred until the debris in the ear canals had been cleared and surgical treatments completed.
46 On 8 May 2006 Mr Nicholas Anastas, an orthopaedic surgeon saw Mr Arslanoski at the request of the Insurance Commission. Mr Arslanoski told Mr Anastas that the motor vehicle accident had aggravated his pre-existing neck pain by about 30 per cent and since then there had been a further 40 per cent increase. His neck pain radiated to both shoulders, both elbows and into both hands. He suffered two to three headaches a week on average. He also told Mr Anastas that the motor vehicle accident had aggravated his pr-existing low back pain by some 40 per cent and since the accident there had been a further 35 per cent increase in his low back pain.
47 In his report dated 8 May 2006 Mr Anastas expressed the opinion that in the motor vehicle accident Mr Arslanoski aggravated his pre-existing symptomatic degenerative changes in his cervical spine by about 30 per cent and his low back symptoms by some 40 per cent. Mr Anastas attributed the increase in Mr Arslanoski's symptoms following the accident to the natural progression of pre-existing degenerative changes rather than the motor vehicle accident. Mr Anastas found that Mr Arslanoski demonstrated inconsistency when he tested straight leg raising and in Mr Anastas this can suggest symptom magnification and that Mr Arslanoski's incapacity may not be as great as he perceives.
(Page 10)
48 Mr Arslanoski told Mr Anastas that prior to the motor vehicle accident he was working as a self employed industrial cleaner 40 to 60 hours a week with the help of his wife. Following the accident he continued to work but has to stop in February 2005 because he had difficulty coping with pain. He had returned to part time work in December 2005 and had increased his hours of work to 30 a week, at times with help from his family. Mr Anastas considered that Mr Arslanoski's difficulty with work was due to the natural progression of his pre-existing degeneration rather than to the consequences of the motor vehicle accident.
49 In his report of 8 May 2006 Mr Anastas wrote that the body has a natural tendency to heal itself from injury and that the expected prognosis would be for Mr Arslanoski to improve and eventually to completely recover.
50 Dr Judelman referred Mr Arslanoski to Dr Hamid Hamzah, a consultant medical practitioner in anaesthesia and pain management, who saw Mr Arslanoski on 27 February 2007. Dr Hamzah also saw Mr Arslanoski on 26 June 2007, at the request of Mr Arslanoski's solicitors.
51 Mr Arslanoski told Mr Hamzah that he had a long history of back and neck problems, commencing in 1982 or 1983 when he had a severe injury, that he had received treatment following that injury and that he had been able to return to work as a contract cleaner, working up to 50 to 60 hours a week. He also told Mr Hamzah that he had suffered pain from the neck down to the low back following the motor vehicle accident. On 26 June 2007 he told Dr Hamzah that he suffered sore arms, headaches, pain in the upper back and neck and pain in his right hip and leg, with some pain occasionally going into his right heel and that recently he had decreased his work load to about 25 to 30 hours a week and had to take on an extra hand to help him out.
52 It is Dr Hamzah's opinion that Mr Arslanoski work capacity is approximately 25 to 30 hours a week as a contract cleaner, that he is unable to lift weights heavier than 10 kilograms and that his work capacity will probably not change.
53 Mr Ker saw Mr Arslanoski at the request of his solicitors on 7 November 2005 and 17 August 2007. Mr Ker also saw surveillance film of Mr Arslanoski taken in February and July 2005.
(Page 11)
54 Mr Arslanoski told Mr Ker that for the majority of his adult life had been employed as a cleaner, initially with the Education Department, but that following injury to his neck and back his cleaning work had primarily as a contract cleaner. He said that he was in satisfactory health before the motor vehicle accident.
55 When Mr Ker saw Mr Arslanoski on 7 November 2005 Mr Arslanoski was not working. He told Mr Ker that he was suffering neck discomfort, with pain at the extremes of movement, some painful limitation of spinal mobility and radiation of pain from the low back into the right leg. Mr Ker's clinical examination showed that Mr Arslanoski had a reasonably preserved range of movements and no evidence of neurological impairment. In his report dated 20 December 2005 Mr Ker expressed the opinion that Mr Arslanoski was clearly unable to compete for work in the open workforce. Mr Ker was hopeful that with continuing physical management Mr Arslanoski's pain symptoms would reduce sufficiently to allow him to return to some limited hours of cleaning work.
56 On 8 March 2007 Mr Arslanoski's solicitors sent to Mr Ker surveillance film of Mr Arslanoski taken in February and July 2005. Mr Ker expressed his view on those films in a report dated 15 March 2007. Mr Ker described the film taken in February as showing Mr Arslanoski getting into and out of a car, walking, moving his neck and lifting, carrying and transferring shopping bags from a trolley to the rear of his car without restriction. He considered the film taken in July as to be so limited as not to be of assistance in assessing Mr Arslanoski's condition. In his report dated 15 March 2007 Mr Ker wrote:
"In my view, whilst this video would confirm that your client has capacity, I believe, for light working, in the longer term I do not believe that the difficulties he describes will restrict him returning to work."
57 Mr Ker saw Mr Arslanoski on 17 August 2007 and wrote a report dated 20 August 2007. Mr Arslanoski told him that from approximately December 2005 he had gradually returned to work as a contract cleaner and that he had built up his hours of work to approximately 25 to 30 hours a week.
58 Mr Arslanoski said that he experienced neck pain and pain in his shoulder girdle, neck stiffness associated with his neck pain, paraesthesia in his hands and back pain radiating into his right leg.
(Page 12)
59 Mr Ker assessed Mr Arslanoski's capacity for work as being the 25 to 30 hours a week he was working. Mr Ker was uncertain of the extent to which Mr Arslanoski would be able to work as an employee cleaner. It was his opinion that Mr Arslanoski's capacity would remain at the level at which he was working and that he should avoid general labouring tasks involving repeated bending, lifting or carrying heavy weights and sustained resistive tasks with his arms at or above shoulder level.
60 Mr Ker did not carry out any tests on Mr Arslanoski. He accepted that Mr Arslanoski was suffering the symptoms that he reported to Mr Ker.
61 Professor Francis Mastaglia, a consultant neurologist, saw Mr Arslanoski at the request of his solicitors on 22 December 2005 and 9 August 2007. He also saw surveillance film of Mr Arslanoski taken in February 2005, July 2005, May 2006 and January 2007.
62 Following his examination of Mr Arslanoski on 22 December 2005 Professor Mastaglia wrote a report dated 5 January 2006. When Professor Mastaglia examined Mr Arslanoski he found him to be quite cooperative and Professor Mastaglia formed the view that Mr Arslanoski did not attempt to exaggerate his symptoms or level of disability.
63 Mr Arslanoski had some difficulty getting on and off the examination couch due to back pain. He had a full range of movement but experienced discomfort and tightness at the extremes of movement and there was moderate tenderness to deep pressure over the mid and lower cervical spinous processes, the upper cervical facet joints and the greater occipital nerves on both sides.
64 Movement of the thoracolumbar spine was mildly restricted and Mr Arslanoski was only able to reach the level of the lower third of the lower legs with his fingertips when bending forward. There was diffuse tenderness over the thoracic and lumbar areas of the spine on palpation, which was most marked in the lower lumbar area. Straight leg raising was reduced to approximately 60 degrees on both sides.
65 Professor Mastaglia's examination of Mr Arslanoski's limbs failed to disclose any motor, sensory or reflex abnormalities. There was some tenderness to pressure over both ulnar nerves.
66 Examination of the cranial nerves showed that Mr Arslanoski had a quite marked right sided hearing loss.
(Page 13)
67 Professor Mastaglia diagnosed Mr Arslanoski as having suffered a significant soft tissue injury to the cervical, thoracic and lumbar areas of his spine and that he had persisting symptoms in those areas. He also diagnosed severe right sided hearing loss related to a traumatic perforation of the ear drum, which Professor Mastaglia presumed occurred when Mr Arslanoski struck the right side of his head against the inside of the car door in the motor vehicle accident, with a probable secondary middle ear infection. Professor Mastaglia also considered that Mr Arslanoski had features of mild bilateral ulnar neuritis at the elbows.
68 Professor Mastaglia considered Mr Arslanoski to be substantially restricted in his ability to compete in the open workforce, that it was unlikely that he would be able to cope with any physically demanding full time work for the foreseeable future but that he may be able to cope with lighter duties at least on a part time basis.
69 In March 2007 Professor Mastaglia saw film of Mr Arslanoski taken on 14, 15 and 17 February 2005 and on 5 July 2005. In a letter dated 12 March 2007 Professor Mastaglia described the film as showing Mr Arslanoski walking, sitting in his motor vehicle, getting into and out of his motor vehicle, reversing and driving his motor vehicle, bending forward, pushing a shopping trolley, placing bags of shopping into the trolley, walking carrying a shopping bag and carrying a newspaper. In that letter Professor Mastaglia wrote that in his opinion the activities shown in the film were not incompatible with Mr Arslanoski's complaints on 22 December 2005 or with Professor Mastaglia's examination of Mr Arslanoski on that day. The film did not alter Professor Mastaglia's opinions concerning Mr Arslanoski.
70 Professor Mastaglia saw Mr Arslanoski on 9 August 2007 and wrote a report dated 14 August 2007 following that examination. He found that there had been no significant improvement in Mr Arslanoski's neck and back soft tissue injuries. There did appear to have been some improvement in his hearing. Mr Arslanoski still had features of mild bilateral ulnar neuritis at the elbows.
71 Mr Arslanoski told Professor Mastaglia that over the previous few months he had noticed increasing right leg pain as well as numbness and burning over the front and side of the right thigh and hip area. It was Professor Mastaglia's opinion that this was most likely due to a compressive lesion of a nerve which appeared to have developed since 22 December 2005. Professor Mastaglia was uncertain about the relationship between this condition and the motor vehicle accident.
(Page 14)
72 In a letter dated 14 August 2007 Professor Mastaglia commented upon further film he had seen of Mr Arslanoski. This film was taken on 3 and 16 May 2007 and 3 and 4 January 2007. Professor Mastaglia described the film as showing Mr Arslanoski sweeping, cleaning a footpath using a suction device, placing the device in the back of a four wheel drive vehicle, getting into and out of a car, driving, standing, walking and sitting.
73 In Professor Mastaglia's opinion the activities shown in the film were not incompatible with Mr Arslanoski's complaints on 22 December 2005 or 14 August 2007 or with Professor Mastaglia's examination of Mr Arslanoski on those days. The film did not alter Professor Mastaglia's opinions concerning Mr Arslanoski.
74 In cross-examination Professor Mastaglia's evidence was that his conclusions on Mr Arslanoski's spinal injuries and capacity to work were strongly influenced by the history that Mr Arslanoski gave to him and were also to some extent were based upon Professor Mastaglia's findings on examination.
75 Mr Arslanoski's solicitors arranged for Mr Andrew Harper, an occupational physician, to see Mr Arslanoski on 8 November 2006. Mr Arslanoski told Mr Harper that he had pain in his low back, right leg, upper back, neck and arms, headaches and was deaf in his right ear. He was working between 21 to 25 hours a week cleaning offices and a pub. Mr Harper found that Mr Arslanoski's back, neck and shoulder movements were within normal limits.
76 In his report dated 8 November 2006 Mr Harper expressed the opinion that Mr Arslanoski had sustained strain injuries to the cervical and thoracolumbar spines which had aggravated pre-existing pain in those locations. He had also sustained a traumatic rupture to the right eardrum. In Mr Harper's opinion Mr Arslanoski's work capacity was permanently reduced as a result of the motor vehicle accident.
77 In a letter dated 14 March 2007 Mr Harper commented on surveillance film he had seen of Mr Arslanoski. Mr Harper described the film as showing normal walking, standing and bending of the lumbar spine and normal neck movement. Mr Harper considered that the film shows activities consistent with his clinical assessment and did not alter his opinion on Mr Arslanoski's condition.
78 Mr Harper saw Mr Arslanoski on 12 June 2007 and wrote a report dated 13 June 2007. Mr Arslanoski told Mr Harper that he continued to
(Page 15)
- suffer pain in his low back, right leg, upper back, neck and arms and headaches. Mr Harper considered Mr Arslanoski's work capacity to have been reduced but that he was capable of working his current hours of 21 to 25 hours a week. He considered Mr Arslanoski's condition to have stabilised and that his work capacity was permanently reduced. Mr Harper wrote in that report that he found Mr Arslanoski to be well motivated and determined to remain in the work force and to pursue his exercise regime conscientiously.
79 In a letter dated 2 August 2007 Mr Harper commented upon film he had seen of Mr Arslanoski taken from 11 April 2006 to 16 May 2006 and 2 December 2006 to 4 January 2007. He described the film as showing Mr Arslanoski doing relatively light cleaning, some bending, some walking and some driving. Mr Arslanoski's movements were unrestricted. Mr Harper considered the film to be consistent with his findings on examination and did not alter his opinion on Mr Arslanoski's condition.
Mr Arslanoski's condition before the motor vehicle accident
80 As I have noted in September 1984, while working for the Education Department, he suffered a lower back injury and neck injury.
81 By an action in this court he claimed from the Minister for Education for damages for personal injuries suffered in an accident on 18 September 1984. The Minister for Education denied liability and the action went to trial on both liability and damages in September 1994. The trial was heard by her Honour Judge Kennedy, as her Honour was then.
82 Her Honour found that Mr Arslanoski was not a truthful witness and that his denial that a bank account in the name of R. Arnott was his was not true. Her Honour also found that he had been working when he had said he had not been working. These findings resulted in her Honour being unwilling to accept Mr Arslanoski's evidence unless it was supported by independent evidence.
83 Her Honour found that did suffer injuries in the accident on 18 September 1984 and that these injuries were caused by the negligence of the Minister for Education. Her Honour concluded that Mr Arslanoski had suffered a moderate injury to his arm, neck, and thoracic spine of a soft tissue nature, that he had suffered past economic loss and a loss of amenities, but that he had no ongoing loss of earning capacity. Her Honour awarded damages of $88,960.74 of which $40,000 was for loss of amenities and the balance was for past economic loss, income tax on workers' compensation benefits and special damages.
(Page 16)
84 Mr Arslanoski's evidence was that by the time of the motor vehicle accident he was still experiencing symptoms from his 1984 accident, his biggest problem was constant tenderness in his low back. Despite these symptoms he was able to do strenuous cleaning work for between 60 to 70 hours a week.
Mr Arslanoski's earnings
85 When Mr Arslanoski commenced his cleaning business in 2000 his customer was Fast Eddy's restaurant. In 2004 Fast Eddy's went into receivership and he lost that work. He also suffered a loss of income because he was not paid for cleaning work he had done for Fast Eddy's.
86 Mr Arslanoski's evidence was that following the loss of the Fast Eddy's work his business then obtained work in 2004 cleaning Homeswest houses in the Midland area and that he was working for between 50 to 60 hours per week. He was working as a subcontractor to Mrs Mops, which had a contract with Homeswest.
87 Mr Arslanoski tendered into evidence a book of financial documents, Exhibit 1. The book contained copies of income tax assessments, income tax returns and invoices for cleaning work done by his business in the year ended 30 June 2007. Those documents contained the following information.
Mr Arlanoski's Notices of Income Tax Assessment
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Mr Arslanoski's Income Tax Returns
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Evidence from firms for which Mr Arslanoski worked
89 Mr Saddik's lawyer called evidence from Mr Alexander Eaton, who is the principal of Mopit Pty Ltd. From 2003 to 2005 Mopit carried on a general cleaning services business under the business name Mrs Mop. Its main business was cleaning vacant rental properties and it cleaned properties for Homeswest in the Midland area. It used subcontractors to carry out the cleaning work.
90 Its practice when it received a work order to clean a property from Homeswest was that it would send a copy of the work order to the appropriate subcontractor or subcontractors. Mopit required its subcontractors to complete the job within ten business days and to return to it the work order with a notation that the work had been done.
91 Mr Eaton's evidence was that for approximately six weeks in 2004 Mr Arslanoski was a subcontractor to Mopit. Mr Arslanoski ceased being a subcontractor to Mopit because Mopit was unsuccessful in its tender to continue carrying out cleaning work for Homeswest.
92 Approximately once every three weeks Mr Eaton inspected work done by its subcontractors to ensure that quality standards were
(Page 18)
- maintained. When carrying out inspections Mr Eaton saw Mr Arslanoski with a woman who Mr Eaton assumed was Mr Arslanoski's wife.
93 Mr Eaton's evidence was that at the time of the trial Mopit had misplaced the originals of its business records of its dealings with Mr Arslanoski. Prior to the records being misplaced Mr Eaton had given photocopies of them to an investigator for the Insurance Commission.
94 Mr Eaton produced those photocopies. According to those records Mr Arlsanoski carried out work for Mopit from 8 to 26 May 2004.
95 Mr Eaton did not recall Mr Arslanoski telling him that he had been involved in a motor vehicle accident, although, he said, Mr Arslanoski may have told his staff.
96 In 2005 Mr Arslanoski, through his solicitors, made an application to the Insurance Commission for an advance on his claim for damages. In support of his application he provided to the Insurance Commission documents to support his claim for lost earnings. Included with those documents were copies of two invoices from Mr Arslanoski's business, Clean Acres, to Mrs Mops, both dated 11 January 2005. Those copy invoices were for jobs said to have been done in April 2004. Mr Eaton's evidence was that he had never received those invoices and that amounts charged in those invoices were incorrect.
97 Mr Saddik's lawyer also called Mr Martin Hughes, the principal of Reekie Property Services, a cleaning contracting firm. Reekie Property Services was the successful tenderer for work cleaning properties in the Midland area for Homeswest from 1 July 2004.
98 On 24 June 2004 Mr Arslanoski provided to Reekie Property Services a completed form of application for employment. Exhibit 2 is a very poor copy of that document. Mr Arslanoski appears to say in it that he had no previous workers’ compensation claims, did not suffer from a disability and had no convictions.
99 Mr Arslanoski's evidence was that when he applied to Reekie Property Services to do cleaning work he told Mr Hughes on a form that he had been involved in a car accident and that he completed some another form in addition to the original of Exhibit 2.
100 Mr Hughes interviews applicants for work with Reekie Property Services. He could not recall interviewing Mr Arslanoski and could not recall any discussion with him.
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101 Mr Hughes was unable to locate a better copy of Exhibit 2, although his firm had been searching for one.
102 Reekie Property Services engaged Mr Arslanoski to do cleaning work. Exhibit 22 is a copy of Reekie Property Services's records of payments to Mr Arslanoski for work done. Reekie Property Services paid to Mr Arslanoski a total of $21,735.49 for work from 26 July 2004 to 30 January 2005.
103 Mr Hughes' evidence was that Mr Arslanoski was allocated work every week in that period and that Mr Arslanoski did not ever refuse work that he was offered.
104 Reekie Property Services ceased using Mr Arslanoski as a subcontractor from 30 January 2005. Mr Hughes' evidence was that the reason for doing so was unsatisfactory work performance and that his invoices were incorrect from time to time. Reekie Property Services employed Mr Darren Appleby as a supervisor. Mr Appleby had more contact with Mr Arslanoski than Mr Hughes did. Mr Hughes' evidence was that the decision that Mr Arslanoski's work was unsatisfactory was made by Homeswest, Mr Appleby and Mr Hughes. Mr Appleby was not called as a witness.
Film of Mr Arslanoski's activities
105 Exhibit 23 is video film taken of Mr Arslanoski. It was taken on 14 February 2005, 15 February 2005, 17 February 2005, 5 July 2005, 3 May 2006, 16 May 2006, 3 January 2007 and 4 January 2007. The film taken in February 2005 shows Mr Arslanoski walking, getting into a four wheel drive motor vehicle, reversing and driving the vehicle, getting into a vehicle, getting out of the vehicle, looking under the bonnet, walking, standing, talking, walking in a supermarket, pushing a trolley, standing and smoking outside shops, pushing a trolley to a vehicle, loading shopping into the vehicle and walking carrying a bag of shopping.
106 The film taken on 5 July 2005 shows him at the boot of a vehicle getting a mop and bucket. The film taken on 3 May 2006 does not appear to show any activity by Mr Arslanoski. The film taken on 16 May 2006 shows him standing, walking, doing cleaning work, getting out of a car, walking at shops and getting into a vehicle.
107 The film taken in January 2007 shows Mr Arslanoski sweeping, taking breaks, standing, smoking, leaning on a broom, using a brush and
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- pan, walking, getting into a vehicle, reversing and driving, getting out of a vehicle, mopping, sitting, talking and reading.
Mr Arslanoski's credibility
108 In the trial of his action against the Minister for Education Mr Arslanoski was found to be a witness whose evidence was not reliable. While it does not necessarily follow that he has been untruthful in this action, the finding does cause me to examine his evidence carefully.
109 It is significant, in my view, that Mr Arslanoski has told medical practitioners he has seen following the motor vehicle accident that he had an earlier work related back injury. He does not appear to have tried to hide that earlier injury.
110 It is also relevant that Mr Arslanoski did not cease working immediately after the motor vehicle accident. He continued working until January 2005 when Reekie Property Services ceased providing work to him due to his unsatisfactory work and inaccurate invoices. While there was little evidence from Reekie Property Services as to that unsatisfactory work, because Mr Hughes did not see a lot of the work done by Mr Arslanoski and Mr Appleby, who did, was not called as a witness, the fact that the work was unsatisfactory is consistent with the effects of the motor vehicle accident restricting his work.
111 Mr Arslanoski's application for work to Reekie Property Services suggests that he did not tell that firm of his motor vehicle accident. Mr Arslanoski's evidence was that he did tell Mr Hughes of the accident in a document. Exhibit 2 is of poor quality and Mr Hughes could not find a better copy, despite searching, so there is a possibility of another document being in existence. In those circumstances I am unable to draw a conclusion about whether Mr Arslanoski told Reekie Property Services of his motor vehicle accident.
112 It is also significant that while his claim was unresolved Mr Arslanoski returned to work and has built up his earnings.
113 The film taken of Mr Arslanoski does not lead me to doubt Mr Arslanoski's credibility. It does not show him doing activities he has said he is incapable of performing. When he is working he appears to take significant breaks. The medical practitioners who saw it did not consider his activities inconsistent with his presentation to them.
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114 I have referred to Mr Eaton's evidence that copies of invoices provided to the Insurance Commission to support Mr Arslanoski's request for an advance were not copies of invoices that he received. Mr Arslanoski's evidence was that his wife was having difficulty with the computer accounting software. Exhibit 9 is a copy of Mr Arslanoski's letter to his solicitor dated 27 February 2005 in which he told his solicitor of problems with the use of that software. It appears that Mr Arslanoski's business records are poor, but I do not conclude that he has been dishonest in his application to the Insurance Commission for an advance on his claim.
115 Mr Arslanoski's tax returns for the years ended 30 June 2002, 2003 and 2004 were not prepared until June 2005, around the time of his application for an advance from the Insurance Commission. That is consistent with his business records not being kept as they should be, but does not lead me to reject his returns as being accurate, or lead me not to accept his evidence.
116 My assessment of Mr Arslanoski is that in this trial he has endeavoured to be truthful and that he was an honest witness.
Damages
117 I accept Mr Arslanoski's evidence that he was involved in the motor vehicle accident. I am not satisfied that he has any precise recollection of what parts of his body received physical blows, but I am satisfied that he was involved in a collision of some force.
118 There is very little disagreement between the medical practitioners as to Mr Arslanoski's neck and back injuries.
119 I have quoted earlier in these reasons a passage in Mr Ker's report of 15 March 2007. In view of the whole of Mr Ker's evidence, particularly his report of 20 August 2007, I understand Mr Ker's opinion to be that Mr Arslanoski's future work capacity will be the limited capacity that Mr Ker described in his report of 20 August 2007.
120 In his report dated 8 May 2006 Mr Anastas wrote that an inconsistency in straight leg raising can demonstrate magnification of symptoms and that Mr Arslanoski's incapacity may not be as great as he perceives. I have found that Mr Arslanoski was an honest witness in this trial. I find that Mr Arslanoski has not said in evidence or to a medical practitioner that his symptoms are greater than they are.
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121 I find that in the motor vehicle accident Mr Arslanoski suffered soft tissue injuries to cervical, thoracic and lumbar areas of the spines which have caused pain and restrictions and will continue to do so. It is Dr Anastas' opinion that the symptoms which Mr Arslanoski reports are to a significant extent the result of the progression of degeneration. However I find that it is the motor vehicle which has precipitated these symptoms and I am not satisfied that they would have occurred if not for the motor vehicle accident.
122 There is some inconsistency between Mr Anastas' opinion that Mr Arlanoski's symptoms are the result of the progression of degeneration and his opinion that the body has a natural tendency to heal so that there should eventually be a complete recovery from the injuries sustained in the motor vehicle accident.
123 I prefer the evidence of the majority of medical practitioners who have seen Mr Arslanoski and conclude that his condition has stabilised.
124 I am not satisfied that the symptoms that Mr Arslanoski has in his right hip and leg were caused by the motor vehicle accident.
125 Mr Arslanoski acknowledged that he did have a hole in his eardrum prior to the motor vehicle accident. I am unable to determine what that problem was or what caused it. There is no evidence that Dr Judelman was aware of any ear problem before the motor vehicle accident. Mr Williams felt that the otitis externa he observed on the day of the accident was unrelated to the accident, but there is no evidence as to why he had that opinion. I conclude that Mr Arslanoski did not have significant problems with his ear prior to the motor vehicle accident. I am satisfied from the evidence of Mr Fisher and the fact that the perforation finally healed that the force of the motor vehicle collision somehow caused the perforation of Mr Arslanoski's right tympanic membrane, that the perforation was slow to heal but eventually did heal.
126 On the basis of Mr Fisher's report dated 25 June 2007 in which he wrote that the hearing in Mr Arslanoski's right ear was the same as in the left I conclude that Mr Arslanoski does not have ongoing deafness in his right ear. Mr Fisher had the ongoing management of Mr Arslanoski's ear condition and I consider that he is in the best position to assess any continuing loss of function.
127 I find that Mr Arslanoski has endeavoured to earn income since the accident but that his symptoms have restricted his capacity to do so and
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- that there will be an ongoing loss of earning capacity due to his symptoms.
128 The accident occurred on 19 May 2004, approximately a month and a half before 30 June 2004. The accident may have had some impact on his earnings in that financial year, but it is not possible precisely to calculate what it was. It is not likely to have been significant as he continued to work in that financial year.
129 However the income Mr Arslanoski earned in that year was less than it would have been in a normal year before the accident due to the insolvency of Fast Eddys. In that year Mr Arslanoski wrote off bad debts of $12,000. If not for the insolvency of Fast Eddys Mr Arslanoski's taxable income in that year would have been greater by that sum of $12,000.
130 Mr Arslanoski had commenced his own business in 2000, and it is likely that it would have taken time for him to build up the income from the business. Based upon his income tax assessments and returns from 30 June 2000 to 20 June 2004 I find that if not for the motor vehicle accident Mr Arslanoski would have exercised his earning capacity to earn a taxable income of approximately $38,000 a year and that his after tax income would have been approximately $30,000 a year, on average.
131 In the financial year ended 30 June 2007 Mr Arslanoski has earned some $81,000 before expenses. I accept that his earnings have increased due to his obtaining work cleaning commercial premises. The earnings for that year indicate that Mr Arslanoski's has been able to increase his capacity to earn and that his future annual loss will be less than it was in the first two years after the accident. I also conclude that if not for the physical restrictions caused by the motor vehicle accident Mr Arslanoski would earn more income from the more remunerative work cleaning commercial premises.
132 The evidence does not enable me to make precise calculations of past or future earning capacity. There are approximately 15 years until Mr Arslanoski turns 65.
133 I assess Mr Arslanoski's past loss of earnings at $40,000 inclusive of interest and his future loss of earnings at $100,000. From the past loss there is to be deducted an advance of $10,000.
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134 I find that the treatment that Mr Arslanoski has received since the accident has been reasonably required as a result of the accident and I allow special damages at $1,263.10.
135 Mr Arslanoski consults his general practitioner every four to six weeks and takes analgesic medication. While I accept that does require analgesics I find that ongoing medical treatment is of little further assistance to him. He will require to see his general practitioner from time to time for monitoring and for prescriptions, but it will be less often than every four to six weeks. I allow $2,500 for future treatment costs.
136 As a result of the accident Mr Arslanoski has suffered I assess Mr Arslanoski's non pecuniary loss as being 15 per cent of the worst case, and so allow damages for non pecuniary loss at $29,300.
137 The total damages I award, after deducting the advance of $10,000, is $163,063.10.
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