Barns v Cirocco No. DCCIV-96-1113 Judgment No. D3745

[1998] SADC 3947

BARNS v CIROCCO

Civil
Judge Noblet

The Plaintiff’s Claim

The plaintiff claims damages for injuries sustained in a motor vehicle accident on 14 September 1993.  Liability was admitted and the matter came on before me for assessment of damages only. 
         The plaintiff was 26 years old at the time of the accident and 30 years old at the date of trial.
         The plaintiff admits that he suffered musculo-ligamentous injury to his lower back and lumbar spine as a result of a previous incident in the course of his then employment in a cooperage factory in October 1987.  He also admits that, before the accident, he was diagnosed as suffering from Scheuermann’s Osteochondrosis in the lumbar spine. 
History
         The plaintiff was born in July 1967.  He completed studies at a Technical High School until year eleven.  He then completed a six months course in horticulture.  In September 1985 he obtained employment painting tennis courts and mixing the painting materials  in a 44 gallon drum.  He was unemployed for some time after December 1986.  In July 1987 he obtained employment placing artificial grass on tennis courts.  At this stage he had no back problems or other injuries.  In September 1987 he began working for a cooperage firm making barrels.   The following month he developed acute low back pain and was taken to hospital.  The problem was diagnosed as a “musculo-skeletal system strain”.  He returned to work at the cooperage firm on light duties, but then he resigned in December 1987 because he felt unable to do the work.  In February 1988 he obtained employment with MBM Sports Surfacing Pty Ltd (“MBM”) mixing paint for tennis courts and sometimes applying the paint.  In February 1989, he undertook a truck driving course and this caused some further pain in his back.  In mid 1989 he and a partner started a business of gutter and tank cleaning.
         The plaintiff first saw Mr Teague in February 1989 following the severe pain he felt in his back on undertaking the truck driving course.  Mr Teague noted that “his build [the plaintiff is about 6’ 6” tall] predisposed him to back problems, as when he is performing tasks at low levels that require repeated bending and twisting, putting a lot of strain on his lower lumbar discs”.  X-rays taken on 1 March 1991 showed features of the disease known as Scheuermann’s Osteochondrosis.  There was also instability at the L4/5 intervertebral disc level, and degenerative changes with loss of disc height at all levels of the lumbar spine.  There was also a mild scoliosis concave to the right.  Mr Teague advised the plaintiff to “reduce his bending and lifting and to continue his home exercises to maximally build up the paraspinal musculature to give support to this early degenerate spine”.

The plaintiff  helped his father on his farm quite frequently - especially on weekends.  In April 1989 he suffered a further exacerbation of his back injury after lifting some hay at this farm.        

At the time of the accident the plaintiff was running his own business and working for MBM at the same time.  He was driving a one tonne truck which was hit from behind.  Immediately after the accident he was aware of  low back pain, some neck stiffness and some discomfort in the right upper chest.  His general practitioner prescribed tablets and physiotherapy.  He was  away from work only for a few days.  When his general practitioner saw him on 20 September 1993, six days after the accident, the plaintiff said that he had not been required to do any heavy work during the previous few days because of bad weather and his back and neck had almost returned to normal.  Examination showed that his neck and lumbar-sacral spine exhibited a full range of movement, but some discomfort was noted at the extremes of movement.

The plaintiff ceased  working for MBM in early 1994, about 4 months after the accident.  He gave in evidence the reason as being because “I just could not cope with the work any more due to the pain”.  He then concentrated on his own business of cleaning gutters and rain water tanks.  He said in evidence that this work became more and more difficult and there were occasions when he had what he called a “seizure”,  which was like someone sticking a knife into his back causing him to “freeze up”.  He said he continued to carry on his business until about November 1994 but that “everything sort of had fallen apart on me because I was unable to keep it together”.  He has not worked since that time.  He continues to have physiotherapy once or twice a week and also massages once or twice a week when necessary. 
Medical Evidence
         The plaintiff tendered medical reports from Dr Walters (a general practitioner), Ms Ducker (a physiotherapist), Mr Girgis (an orthopaedic surgeon), Mr Teague (an orthopaedic surgeon), Ms Molloy (a neurosurgeon), Dr Bowman (a psychiatrist) and Dr Cherry (who became his general practitioner in August 1995).  The defendant tendered  reports from Mr Reilly (a neurosurgeon),  Mr O’Hehir (a psychologist), Mr Jose (an orthopaedic surgeon),  Dr Scanlon (a psychiatrist), Mr Johnson (a surgeon) and Mr Sweeney (an orthopaedic surgeon).  Of these, only Mr Teague and Mr Jose were called to give evidence; the parties were content to rely upon the reports prepared by the other medical practitioners. 
         The main areas of disagreement were the extent to which the accident aggravated the symptoms of the plaintiff’s previous injury, and the relationship between the plaintiff’s Scheuermann’s disease and his present disability.  In a report prepared in August 1995, Mr Teague said this:

“As established by the history, this man has had a longstanding problem with his lumbar spine first noted in October 1987.  However his lumbar spine function and symptomatic complaint has increased markedly since that time, and most markedly between my reviews of March 1991 and February 1995.  The nature of the rear end collision accident is consistent with causing extra strain across this man’s spine.  However I note that he was able to go back to work even though he worked with pain, and one would therefore consider that he did not sustain a fracture or major disc disruption.  He could have suffered a tear of the annulus fibrosus which then would cause over the next twelve to eighteen months degenerate change in the disc.  The suggestion of some degenerative change in the disc was noted as far back as March 1991.

....I do not think that he will ever be pain free.  This pain, like his function, is due to both the degenerative deterioration as well as the post injury deterioration.”

In a further report dated 27 June 1996, Mr Teague said this:

“By September 1994 a year after the accident he was having periodic episodes of muscle spasm, and found it difficult to walk.  He had extremely severe low back pain that radiated down in to his buttocks.  Now this situation is much more indicative of disc degenerative change.  Classically one sees marked degeneration occurring in the intervertebral disc following an injury to the annulus fibrosus, and research using the sheep intervertebral disc model, done by Professor Robert Fraser and Mr. Orso Osti, has shown that following an injury to the annulus fibrosus, pathological changes occur in the disc producing disruption of its structure over the next twelve to eighteen months.  It would therefore seem quite reasonable that this patient with the above history has injured a susceptible disc at the time of his motor vehicle accident, and over the next twelve months has developed changes within that disc, or discs, to the point that he has a heightening of his symptoms and increasing difficulty performing his heavy work activities.  This difficulty increased to the point that he stopped work in November 1994.”

I have two difficulties with this opinion.  The first is that there is no radiological or other evidence that the plaintiff suffered a tear or injury to the annulus fibrosus.  Secondly, with due respect to Mr Teague, he seems to be arguing from a conclusion, or using an invalid syllogism.  The logic of his approach seems to me to amount to saying that one often sees pathological changes occurring within twelve to eighteen months of an injury to the annulus fibrosus; the plaintiff has exhibited those pathological changes; therefore he must have had an injury to the annulus fibrosus. 
         Where there is inconsistency between the views of Mr Teague and Mr Jose, I prefer the latter.  In a report dated 8 May 1996, Mr Jose said this about the plaintiff:

“This man has extensive lumbar Scheuermann’s disease which appears unusually painful.  This condition generally becomes painful with strenuous physical activity but will in my experience usually become relatively asymptomatic within a few weeks or months after the restriction of that activity and I am surprised that since he has stopped work that he has not made more improvement.  Generally it is better if such patients can keep their back mobile but Mr Barns had tended to keep his back immobile in recent times. 

The effect of the accident of 14.9.93 in my view was to produce a temporary aggravation of this situation in his back which in fact historically was giving him trouble as is recorded by Dr Teague between 1987 and 1992 as I read the reports.  The problem that we are confronted with now is due to the Scheuermann’s disease which is a developmental condition. 

..... With regard to permanent disability which may affect his capacity to work .... I did not agree that the accident had any effect on his current inability to work.  Such disablement in my view was going to occur in any event on the history I have been provided with.  Again I was surprised at the significant deterioration in his symptoms since he has given up work which would have been expected to do the reverse and there may well be some non-organic features in his presentation.  I agree that he has a significant restriction of his lumbar spine function which would amount to at least 50 percent of his lumbar spine function but this is due to the condition of a lumbar Scheuermann’s disease not to any relatively minor rear end collision.”

In a later report, Mr Jose also makes the point that if the plaintiff had been seriously injured in a rear end collision, he would have expected aggravation in the neck area more than in the lower back.  Mr Jose also expressed concern about the extent of the plaintiff’s physiotherapy treatment.  He suggested that, in the absence of any lasting benefit, three to four months of physiotherapy would have been more than adequate.  Mr Jose also expressed agreement with the conclusions reached by Mr Reilly. 
         Mr Reilly noted a marked inconsistency between the severity of the accident and the consequent disability.  He went on to say:

“It is quite reasonable to assume that the motor vehicle accident of 13.9.93 [sic] caused additional strain to his back and that he was susceptible to strain because of the pre-existing degenerative state.  It is also clear that the injury was not particularly severe in that he was able to return to work within a week and to continue working at a reduced rate for a further year. 

.... I would regard the motor vehicle accident as causing a temporary exacerbation of a pre-existing condition based on the following features -

1...... That the widespread degenerative changes noted on the MRI scan are likely to have preceded the accident.  In other words the accident is not such as to have caused such multiple level change.

2...... That he was able to return to work within one week.

3...... There has been a progressive deterioration since then which implies that factors other than the motor vehicle accident were operative.”

I do not think it is necessary for me to go into details of the contents of the other medical reports as far as the plaintiff’s physical injuries are concerned.  I accept the reports by Mr Jose  and Mr Reilly where they are inconsistent with the reports of other medical practitioners. 
The Credibility of the Plaintiff
I am unable to accept a great deal of the plaintiff’s evidence.  His evidence involved a great deal of prevarication and exaggeration in order to try to build up his case.  This was mainly in two areas. First, he tried to build up his pre-accident income in an attempt to enhance his claim for loss of earning capacity.   Secondly, he attempted to play down the extent to which his back injury troubled him before the accident and to build up the effects of the back injury after the accident. 
         In the year ended 30 June 1993, the plaintiff declared in his income tax return that his gutter and tank cleaning business had made a loss for that year of $1,277.  He said in evidence that the business had in fact made a profit of some $20,000 but that he had not put a lot of the income through his books and had not declared it because he was concerned about the amount of provisional tax he would have to pay.  In that year his income from MBM was $6,668.  In the following year, his income from MBM was $6,350 and he declared a profit of $20,568 from his own business.   The plaintiff had no means of accurately calculating the amount of his business earnings in the year ended 30 June 1993; he simply assumed that they would have been about the same as in the following year.  I believe that the plaintiff did significantly understate in his tax return his income for the year ended 30 June 1993.  However, I cannot accept his bald assertion that he would have earned as much as $20,000 in his business.  One thing is clear, the plaintiff either lied to the Australian Taxation Office to minimise his taxation, or he lied to me (about having lied to the Australian Taxation Office) in order to boost his pre-accident income - or perhaps both.
         The plaintiff was cross-examined about his pre-accident back condition as follows:

“Q.... From 1987, when you suffered the injury.... To about ’91....you had some pain in your low back, particularly when you were doing or at the end of a heavy day’s work?

A.Yes

Q...... But after 1991, up to the date of the motor vehicle accident, you really had no problems at all?

A.That is correct.

Q...... So in 1991, 1992, and 1993, up to September, no problems at all with the back?

A.No.

Q...... That’s correct, is it?

A.Yes.”   (Transcript pages 60 - 61)

However, in the sworn particulars that he provided on 25 March 1991 in relation to a claim arising out of the 1987 back injury, the plaintiff said that since about two weeks after the 1987 injury “I have been partially incapacitated ..... due to continuing severe lower back pain which tends to be re-aggravated when I am engaging in manual employment such as resurfacing tennis courts or engaging in my own business of pressure cleaning and tank cleaning”.  Furthermore, on 28 February 1991 the plaintiff complained to Mr Teague of “back pain felt over the entire lumbar spine from L1 to the sacrum.  Coughing aggravated low lumbar pain which had been more severe in the previous three weeks”.
         The plaintiff was asked in cross-examination about the extent of his neck pain and stiffness at the time of trial.  He said that he gets extremely sore muscles in this area and that he had back pain “every day since the motor vehicle accident”.  However, according to Mr Teague’s report dated 6 August 1995, the plaintiff told him that the neck injury was “only of transient consequence” and that the plaintiff no longer had problems with his neck.  Mr Girgis reported on 19 April 1995 that “the neck is not a problem at this stage and the physiotherapist does not work at all on his neck”.  When the plaintiff saw Dr Molloy on 20 September 1995, he made no complaint about neck pain. 
         Mr Beasley was the plaintiff’s employer at MBM.  He was called to give evidence by the defendant.  I found him to be a witness of truth and I prefer his evidence to that of the plaintiff where there are inconsistencies.  The plaintiff said that when he worked with Mr Beasley after the accident he was “in a hell of a lot more bloody pain” and that he worked more slowly and there were some jobs he could not do.  Mr Beasley said that when he first engaged the plaintiff, he was aware of  his lower back problem and he left it to the plaintiff to set his own limitations.  For example, the paint to be applied to the tennis court was usually carried onto the court in a 20 litre bucket.  The plaintiff used to fill it only to the half way mark so that it would not be too heavy.  Mr Beasley said that the same limitations applied during the whole of the plaintiff’s employment, both before and after the accident.  In fact, Mr Beasley said that the plaintiff’s work was exactly the same after the accident as it was before.  There was no change in the type of work that he was able to undertake, nor in the speed at which he was able to do it.  He said that in early 1994 the plaintiff’s availability to work for MBM became rather sporadic because he was spending more and more time on his own business.  Eventually they just drifted apart.  He said that the plaintiff had been such a good worker that he had to employ two inexperienced people for some time to take his place. 
         I find that the plaintiff did not tell the truth about his employment restrictions after the subject accident.  Apart from the first week or so, he was able to perform the same work after the accident as he was before it.
The Effect of the Accident on the Plaintiff’s Back Injury
         I accept the opinion of Mr Jose that the subject accident simply produced a temporary aggravation of the plaintiff’s pre-existing back condition.  His back was already vulnerable because of the 1987 injury and the Scheuermann’s Osteochondrosis.  The expected recovery period for the symptoms about which he complained following the accident was about 6 - 12 weeks.  I find that the aggravation of his back problem had resolved itself by about the end of 1993.  In early 1994,  the plaintiff concentrated on his gutter and tank cleaning business.  This was a most unwise thing for him to do.  He had admitted in his affidavit of particulars in the previous legal action that the work involved in his business aggravated his severe lower back pain.  Mr Teague had noted in his report dated  4 October 1990:  “Most tall people who are involved in heavy lifting and continued stooping and bending suffer similar difficulties in their spine”.  In his report dated 12 April 1991 Mr Teague said:  “It would be better for him not to be associated with repetitive bending and heavy weight lifting tasks”.  As early as November 1990, Dr Walters expressed this view:  “Because of this man’s height (6’ 7”) and mild to moderate degree of spondylitis particularly of the L5 - S1 disc spaces noted by Mr Teague in his notes to me on 14 February 1989, I believe he is susceptible to ongoing low back symptoms with acute exacerbations  from time to time particularly if he continues to do manual work”.  This was even before the presence of Scheuermanns disease was discovered. 
         I find that the plaintiff aggravated his pre-existing back condition by continuing the work involved in his gutter and tank cleaning business until, eventually, the effects of this work and the Scheuermanns disease caught up with him and his back broke down.  The pain and discomfort he has suffered since early 1994 has stemmed from his pre-existing back condition, not from the injuries sustained in the accident. 
Non-Organic Factors
         The plaintiff was referred to a psychiatrist by his general practitioner, Dr Cherry, and first saw Dr Bowman on 29 August 1995.  Dr Bowman diagnosed “adjustment disorder with depressed mood, the adjustment being to his loss of job, difficulties in his family, financial constraints and, importantly, the ongoing quite severe disability and pain in his back.  His deterioration has quite clearly occurred since the subject accident and it is quite clearly the result of the disabilities from which he is suffering.  Had he not had the accident his condition would not have occurred”.  I have found that, after about the end of 1993,  the plaintiff’s disability and pain was not the result of the subject accident, I cannot accept that any psychiatric problems experienced by the plaintiff are the result of the subject accident.  On this basis I consider that the position was very aptly put by Dr Scanlon who, in an extremely comprehensive report dated 8 March 1996, commented on the report by Dr Bowman as follows:

“I certainly am quite happy to accept my colleague’s diagnosis of an adjustment disorder, only on the basis that what he is adjusting to is related to the many factors in his private and personal life, his relationship with his partner, his new found responsibilities of a father, and his having to accept and adapt to having a back problem, not one that is due to the accident however, but due to chance factors over which neither he nor anyone else has control.”

Non-Economic Loss
         This is a claim to which section 35a of the Wrongs Act applies.  I must therefore assign a numerical value between 0 and 60 to the plaintiff’s non-economic loss (section 35a(1)(b)).  The worst possible non-economic loss that anyone could suffer will attract number 60.  Anything else attracts a number in the same proportion to 60 as the particular non-economic loss bears to the worst possible case.  I must then use the selected number to determine the damages to be awarded for non-economic loss by multiplying it by the “prescribed amount” which, at the relevant time, was $1390.  The amount determined by this process includes both past and future loss and does not bear interest.
         I assess the plaintiff’s non-economic loss on the basis that there was some pain and suffering for about three months following the accident, despite the fact that he was able to work after about one week in the same way as he had before the accident.  I assign the number 5 to the plaintiff’s total non-economic loss, which produces an award of $6,950.
Medical Expenses
         Having regard to the findings I have already made, the plaintiff is entitled to recover medical expenses only to the extent that they were incurred during the period of about three months following the accident.  In the schedule of special damages provided to me, and agreed as to quantum only, the only items that come within that category are the first twenty two or so physiotherapy sessions, which have already been paid for by the defendant’s insurer.  I therefore make no award in respect of medical and related expenses already incurred.  There is no basis upon which I can make any award for future medical expenses. 
Loss of Earning Capacity
         Again, the plaintiff is entitled to be compensated in respect of loss of earning capacity before trial only in respect of the period of three months or so following the accident.  It is difficult to work out the plaintiff’s loss during this period, as his income both from MBM and his own business varied from week to week.  Moreover, there is the problem that I do not know, for comparison purposes, how much the plaintiff really earned in the year ended 30 June 1993.  If I were to take the average receipts for the period September to December inclusive in each of the years ended 30 June 1991, 1992 and 1993, but multiply the 1993 figure by 4, the average receipts for that period each year would be $6,998.  I have no reliable method of apportioning the business expenses to those periods.     The earnings for the same period in the year ended 30 June 1995 were $3,230, a difference of $3,768.  However, I am not satisfied that this necessarily comprises the extent of the plaintiff’s past loss of earning capacity, because of the uncertainty regarding his 1993 income.  In all the circumstances,  I  award to the plaintiff the amount of $3,000.  
         In view of my findings, there can be no award for future loss of earning capacity. 
Gratuitous Assistance
         Both parties agree that the plaintiff’s defacto spouse did not become a “putative spouse”,  within the meaning of section 35a of the Wrongs Act, until their child was born in June 1995.  There can therefore be no award made for gratuitous assistance as any assistance provided after that date was not in relation to injuries attributable to the accident.

There will be judgment for the plaintiff against the defendant for $9,950, comprising $6,950 for non-economic loss and $3,000 for past loss of earning capacity.  I will hear counsel on the question of interest and costs.

ADDENDUM
         After hearing submissions from counsel, His Honour awarded a lump sum of $50 in lieu of calculating interest.  His Honour awarded costs to the plaintiff on the Magistrates Court scale up to 2 weeks after service of the filed offer and ordered that the plaintiff pay the defendant’s costs after that time.