Berry v Johansen - [2000] WADC 329

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BERRY -v- JOHANSEN [2000] WADC 329

CORAM: CHARTERS DCJ

HEARD: 22-24 NOVEMBER 2000

DELIVERED : 14 DECEMBER 2000

FILE NO/S: CIV 2114 of 1999

BETWEEN: DEON BEVON BERRY
Plaintiff
AND
STEPHEN JOHANSEN
Defendant

Catchwords:

Damages - Assessment - Turns on its own facts

Legislation:

Nil

Result:

Judgment for $7,168

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Evangel Taylor
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Brown v Rodrigues, unreported; SCt of WA; Library No 970334; 3 July 1997
Dunn v Unwin [1963] ALR 280
Ford v Omlor, unreported; DCt of WA; Library No D970080; 14 March 1997
Hendrie v Rusli [2000] WASCA 249
Nyssen v Foy [2000] WADC 210
The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Van Velzen v Wagener (1975) 10 SASR 549
Wright v Shire of Albany (1993) A Tort Rep 81-239
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 70359; 23 July 1997
Yammine v Kalwy (1979) 2 NSWLR 151

CHARTERS DCJ: The plaintiff is a 23 year old wood machinist who seeks damages on account of injuries suffered in a motor vehicle accident on 15 April 1997.
Liability is admitted by the defendant and damages are in issue.
The plaintiff claims he suffered injury to his head, laceration to the left eyebrow, undisplaced fracture of the tip of the nasal bone, abrasions to the left shoulder and right forearm, haematoma and bruising of the left hip and chest wall, laceration to the lower lip, cervical thoracic and lower back injury and glass fragments embedded in forehead. He seeks general damages, loss of past and future income as a consequence of his being unable to work as a wood machinist and the cost of gratuitous services.

Facts found

The plaintiff left school at the age of 15 without completing Year 11. He was then employed as furniture removalist and entered into an apprenticeship with Focus Shopfitters in 1995 to qualify as a tradesman in wood machining.
The plaintiff was an unsatisfactory worker and was considered to be lazy and disobedient. Nevertheless he continued with his apprenticeship. His attitude to work has a bearing only to explain his leaving Focus Shopfitters and to illustrate a lack of real interest in continuing with that kind of work. He prefers gardening.
On 15 April 1997 he was a front seat passenger in a vehicle when it was involved in a severe collision with a truck. Whilst the plaintiff says in evidence he lost consciousness I conclude it was momentary for although he suffered a deep laceration to the left eye the report by the Joondalup Health Campus was that he had a minor head injury. He pleads there was no definite loss of consciousness.
The wound to the left eye was cleaned and explored, fragments of glass were taken from the plaintiff's face, he suffered injury to the left forearm which was x‑rayed and found not to be fractured and he was discharged home.
He saw Dr Xanthis, a general practitioner, on 18 April 1997 who recorded that the plaintiff suffered a minor head injury with no definite loss of consciousness, laceration around his left eyebrow extending down nasally with the left peri‑orbital haematoma, minor lacerations and abrasions of the left arm and forearm, haematoma and bruising of the left hip and lateral chest wall and lacerations of the lower lip. He complained to Dr Xanthis of generalised soreness and pain, with cervical, thoracic and upper lumbar pain and blurriness of the left field of vision. Dr Xanthis prescribed analgesia and antibiotic medication to prevent infection of the facial wound. He certified the plaintiff unfit for work until 14 May 1997.
Dr Lui, a general practitioner, saw the plaintiff on 19 April. He reported that the plaintiff had suturing to his forehead, shoulder and forearm. He had a cut on the inside of his lower lip. The plaintiff complained of right chest pains, headaches and a swollen nose - there was found to be a small fracture to the nose. X‑rays were ordered of the plaintiff's neck, back and ribs but apart from old fractures to the ribs no fracture was found.
Dr Lui prescribed pain killers and the plaintiff was put off work.
He attended for a head scan and chest x‑rays on 23 April 1997 and had the remaining stitches removed.
The plaintiff returned to work on 15 May 1997.
He next saw Dr Lui on 9 July 1997 and complained of a headache and was given some time to rest.
Dr Xanthis considered that the plaintiff, whilst still symptomatic on 14 May 1997, had recovered sufficiently for a trial of his work and accordingly the plaintiff returned to work on 15 May 1997.
Having returned to work on 15 May 1997 the plaintiff continued to work at his normal duties and completed his apprenticeship in December of 1997. On 9 February 1998 he returned to Dr Xanthis and complained of ongoing low back pain with associated stiffness ever since the accident of 15 April. Dr Xanthis recorded:
"The pain was limited to his lower spinal area and he complained of no radiation. On examination, he had a full range of lumbar spine movements but flexion and extension were painful. His straight leg raising was normal, excluding nerve root problems."
It is now accepted that the low back symptoms have recovered and do not disable the plaintiff.
The plaintiff saw Mr Andrew Crocker, a plastic reconstructive surgeon, for treatment to the facial injuries. The plaintiff underwent surgery under a minor local anaesthetic. There is now a slightly raised scar running vertically to the bridge of the plaintiff's nose on the lefthand side about 2cm long. The scar has no colour and is not particularly noticeable.
The plaintiff has had no medical treatment for his thoracic and cervical symptoms of which he now complains since 14 May 1997 but he has attended upon Mr Woodland, an orthopaedic surgeon, Dr Warner, an occupational physician, and Mr Brash, an orthopaedic surgeon, for reports upon his condition. The plaintiff has not sought, since May 1997, medication, physiotherapy or any other relief for his alleged symptoms arising from the accident.
On 16 October 1997 he suffered back strain while stacking sheets and was unfit for work until 4 November 1997, when he was certified fit, but requiring treatment.
The plaintiff completed his apprenticeship in December 1997 and upon leaving the employment of Focus Shopfitters on 12 June 1998 was examined by Dr Lui and was found to have recovered wholly from the work related disability.
Mr Woodland saw the plaintiff on 10 December 1999 and recorded that the main symptom was that of mid upper thoracic pain with referral of pain to the region of both scapulae. To a much lesser extent he had lumbar back ache and stiffness but those symptoms, Mr Woodland said, were not significant. He had no low neurological symptoms at all.
Radiological examination has shown no obvious abnormality apart from rib fractures which are not related to the accident. Cervical and thoracic spine x‑rays showed no evidence of fracture or dislocation. The plaintiff had a full range of cervical spine and thoraco lumbar movement and there was no evidence of serious underlying injuries such as fracture, dislocation, disc protrusion, spinal cord or nerve injury.
On the basis of the plaintiff's complaint of symptoms Mr Woodland diagnosed a soft tissue injury, and so far as the cervical spine was concerned, assessed the plaintiff as having a 14 per cent loss of full and efficient use of the neck, so far as the thoracic spine was concerned he found a 7 per cent loss of full and efficient use of the back including lumbar and thoracic spine - a total whole body disability of 13 per cent.
Mr Woodland agreed, however, that if the plaintiff were free of neck or upper back symptoms by February 1998 then any symptoms he presented upon examination by Mr Woodland would not be related to the accident. I accept that opinion. I find the plaintiff was free of neck, upper back and shoulder symptoms from May 1997.
Dr Warner saw the plaintiff on 17 May 2000 and recorded on examination that all movements in the cervical spine were painful and limited, he had tenderness in the thoracic spine and tenderness over the left scapula. His diagnosis was an obvious soft tissue injury to the cervical spine and thoracic spine "which in turn affects the lumbar spine". He regarded the plaintiff as suffering from permanent residual disability which he placed at 15 per cent loss of use of the cervical spine and 10 per cent loss of use of the lumbo thoracic spine. He would recommend future employment to avoid lifting weights over 10kg or bending and twisting repetitively.
Mr Brash saw the plaintiff on two occasions - on 30 May and 14 November 2000.
Mr Brash, upon examination, found the plaintiff showed a full range of active motion in the cervical spine and in both shoulders. There was no localised tenderness and no sensory change. There was no abnormality found on clinical examination. There was no objective evidence of pathology and indeed Mr Brash commented upon a complete lack of pathology. He believed there was no anatomical site of tissue injury to account for the plaintiff's ongoing symptoms and was of the firm opinion from a physical point of view that the plaintiff was fit for full activities of daily living without restriction, including full‑time work as a cabinet maker/wood machinist. He could go back to his previous activities of playing cricket and engaging in martial arts.
I do not accept Dr Warner's opinions as these were based upon erroneous assumptions of symptoms presented by the plaintiff. The latter did not truly have the painful and limited movements and tenderness in the spine.
I accept the evidence of Mr Brown and Mr Najar that upon the plaintiff's return to work with his employer in May 1997 to complete his apprenticeship he did the same kind of work that he had been doing prior to his accident. Some of the work is quite heavy but the plaintiff was able to manage this and did so. He left Focus Shopfitters of his own accord and his leaving had nothing to do with any physical disability.
The plaintiff now works, or seeks to work, as a gardener and finds that this is work he can manage.
I find that the plaintiff had recovered from the disabilities from the motor vehicle accident within a month or so after the accident. He suffered no significant upper back, mid back or low back symptoms and was not incapacitated for work as a wood machinist. The plaintiff, having qualified as a wood machinist in December 1997, continued with Focus Shopfitters for a further six months and is quite capable of undertaking work in the future and in that trade.
I turn then to the heads of damage.

General damages

The plaintiff suffered significant lacerations to his face and has a vertical scar of about 2cm. It is not particularly noticeable and has no colour.
He also suffered the injuries noted in the Joondalup Health Campus notes and later felt some slight low back and shoulder ache. These resolved by 15 May 1997.
I reject the plaintiff's evidence that he has continued to suffer mid to upper back or shoulder symptoms since the accident.
He is not disabled from engaging in his pre‑accident activities.
I regard the plaintiff's injuries, including the scarring which is slight, and the unpleasant shock of a serious collision as being no higher than 7.5 per cent of the most extreme case.
Under this head I award the plaintiff $16,875. After subtraction of $11,000 (Amount B) the plaintiff is entitled to $5,875.

Past loss of income

I award the plaintiff the agreed lost income of $1,113 with interest of $200.

Future loss of income

The plaintiff has not been incapacitated for work since May 1997 and I make no award under this head.

Past and future travelling expenses

I award the plaintiff the agreed sum of $180 for past travelling expenses. I make no award for future travelling expenses.

Gratuitous services

I am not satisfied the plaintiff required any such services and I make no award under this head.

Summary of awards

General damages $5,875.00

Past loss of earnings $1,113.00

Past travelling expenses $ 180.00

$1,793.00

I award judgment to the plaintiff in the sum of $7,168.