Del Pino v Broadhurst
[2003] WADC 268
•2 DECEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DEL PINO -v- BROADHURST [2003] WADC 268
CORAM: HH JACKSON DCJ
HEARD: 28-31 JULY 2003
DELIVERED : 2 DECEMBER 2003
FILE NO/S: CIV 1058 of 2001
BETWEEN: ANDRES JONATHON DEL PINO
Plaintiff
AND
ANDREW FREDERICK BROADHURST
Defendant
Catchwords:
Negligence - Motor vehicle collision - Liability admitted - Assessment of damages
Legislation:
Nil
Result:
Damages assessed in the sum of $130,150
Representation:
Counsel:
Plaintiff: Mr B G Bradley
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Vertannes Georgiou
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Hendrie v Rusli [2000] WASCA 249
Nyssen v Foy [2000] WADC 210
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
HH JACKSON DCJ: The plaintiff was born on 9 November 1960 in the Canary Islands. On 30 August 1998, he was involved in a head‑on motor vehicle collision at Gidgegannup.
In the collision, the plaintiff and his wife were trapped in the front seat of the vehicle for an hour or more until they could be freed. The vehicle caught fire and the plaintiff feared for himself, his wife and their children. He was taken to hospital by ambulance. His injuries were numerous. Photographs of the vehicle after their release are Exhibit 1.
The defendant admits liability. The matter came on before me for assessment of damages.
Plaintiff's pre‑accident background
The plaintiff came to Australia as a teenager with his family. After learning English and working as a cleaner, he was employed as a trades assistant by Transfield (as it is now named) in Osborne Park in 1981. It seems that over time, the firm has changed names, merged with other firms and been re‑organised internally. In addition, various witnesses used different names from those used by others for the same sections. Notwithstanding all that, the general position is fairly clear. He later married and had four children. His work as a trades assistant involved cleaning and spray painting heavy equipment. After two years, he moved to the manufacturing section as a coil shaper and was later promoted to a leading hand position and then as a supervisor in about 1987. He was no longer involved in heavy manual work, but more in technical and design areas.
In 1991, at the age of 30 or 31, he applied for and obtained a four‑year apprenticeship as an electrical fitter with Transfield. This involved two years working in the manufacturing section and two years in the winding and fitting sections. During the first three years he also studied at TAFE, becoming apprentice of the year.
Although he is a small man and some of the winding section work is heavy manual work, he coped without difficulty.
After the completion of his apprenticeship, he qualified as an electrical fitter with an "A" grade licence. He was placed in the traction and motor section, working on motors for railways, in early‑1995.
In 1996, the plaintiff purchased a property at Gidgegannup on which to live.
In 1997 and 1998, prior to the accident, he worked on jobs for Transfield in Sydney, Mount Isa and Dubai for periods totalling more than three months. Such works earned additional income.
Post‑accident injuries and events - the plaintiff's evidence
After their vehicle had been cut open, the plaintiff was removed and taken by ambulance to Royal Perth Hospital. He was given pain relief and x‑rays were taken. His hands and knuckles were swollen and painful, his ankles and neck were in pain and were x‑rayed. His left leg was placed in plaster. He discharged himself the following day to attend to family matters - his wife and daughter both being hospitalised. He was on crutches and stayed with relatives for a period, making several outpatient visits to Royal Perth Hospital. After six or seven weeks, the leg plaster was removed.
He consulted his general practitioner, Dr Kyi. He had pain and swelling in the left knee and an ulcer on the right foot which required daily dressing. He received acupuncture and then a soft collar for neck pain. The left little finger was stiff and in pain and the knuckle swollen. The right index finger and knuckle were swollen and painful. He had ongoing pain in both ankles.
He used a variety of pain killing medications over time and received physiotherapy at Royal Perth Hospital and privately.
He returned to work at Transfield on 12 January 1999. His sick leave had run out, but he still suffered ankle, knee and neck pain. Neck pain radiated from the back of the neck down between the shoulder blades and down the left arm into the hand and fingers with intermittent numbness. His little finger was stiff and painful and so was the right index finger knuckle. He suffered constant dull headache with severe headache three or four times weekly. He arranged to be placed on light duties in the coil manufacturing section.
In April 1999, Dr Kyi referred the plaintiff to Mr Edibam, who arranged an x‑ray of the neck. He was also receiving acupuncture and physiotherapy.
In October 1999, work in the coil section had lessened and the plaintiff asked for and was relocated to the traction and motor section. The work is very heavy and the plaintiff struggled to do it. He remained in the section for some eight months, but his ankles worsened and he was referred to Dr Sneddon whom he saw in February 2000. He arranged an MRI. Dr Sneddon then suggested surgery to remove a bone fragment found "floating" inside the left ankle. This was performed in June 2000. He was hospitalised overnight and was sent for intensive physiotherapy on the ankle. He returned to work on 27 July 2000. Because of the lifting involved, he also had neck problems.
Dr Kyi moved his practice to Northam and the plaintiff saw Dr Beinart instead.
He spoke to the manager at Transfield and was returned to the coil section where the work is much lighter and where he remains.
On 14 September 2000, he saw Dr Galton‑Fenzi.
He continued with pain killing medications. The surgery on his ankle produced no improvement.
At the time of trial, he said he suffers mild pain in the back of the neck, between the shoulder blades, left shoulder, arm and hand, which increases with certain activities and with numbness in fingers of the left hand, constant pain in the front of both ankles, and headaches mainly triggered by neck pain, probably three times per week, depending on his activity. He described himself as very irritable and short‑tempered. He had suffered one very frightening nightmare, re‑living the events and continued to have nightmares of feeling trapped and helpless. He becomes very anxious in traffic.
He was fitted with orthotics about 12 months before trial because of his ankle problem. They will require replacement each 18 months to two years. He now finds sleeping difficult and suffers severe teeth grinding.
He had been heavily involved in sport and recreation activities with a church youth group, but his injuries do not allow that.
The Gidgegannup property had a cow and a vegetable garden, but he has had to cease these activities because of his injuries. His wife has not been able to return to work.
Before the accident, he had been very positive, ambitious and happy. His marital relationship has been affected. He becomes irritable and frustrated and has reduced libido. For a period, he took anti‑depressants and to help with sleep, but they interfered with his driving the following morning. At present, he takes about six Prodeine, a pain killing medication, per week.
Since returning to work in the coil section, he has undertaken work for his employer in Singapore, China and Chile. The work in Chile lasted for four months. His Spanish language skills were useful. The work was done at 3,000 metres in altitude. However, none of these assignments involved him in heavy physical work.
At present, he works eight‑hour days five days per week, plus an occasional Saturday morning. He said he copes reasonably well but, on some days, it is difficult and he is very tired after each day, with sore ankles. He is not keen to undertake extra overtime, notwithstanding the family's financial difficulties, and believes he could not cope with a return to the traction section.
Cross‑examined, the plaintiff was asked concerning the history recorded in April 1999 by Mr Edibam that the plaintiff's neck pain, stiffness and headaches developed about five weeks after the accident and the left arm pain and paresthesia in the fingers then recently and the record made by Dr Rosenthal also in April 1999 that he was not then using medications. He said the latter was incorrect - he had used pain killing medication constantly. As to the first, he referred to earlier medical records.
He agreed that it suits his employer to have him working in the coil section, that he is on hourly rates and the highest paid fitter in the section, but thought he worked less overtime than others. Nor did he think he had passed a full medical examination before being approved to work in Chile or that he had told Dr Kruger his ankle problem was resolved. He was not sure whether he had mentioned his other medical problems. The medical tests had been for lung capacity, blood pressure and a cardiogram. He agreed the tests had related also to drug and alcohol, cholesterol and glucose issues. He had previously expressed his concerns to Mr Parker and, more recently, to Mr Lowcock. He had not made a major issue of the matter because of concern that it might affect his employment, although he had applied for positions of a higher nature recently as a purchasing officer. He agreed that he would also like a supervisor's position.
Mrs D E Del Pino
The plaintiff's wife gave evidence, essentially confirmatory of his. Prior to the accident, he had been strong, happy and positive and their relationship good. He has become more aggressive and moody. His sleep is disturbed and he has lost libido.
Mr G J Parker
The plaintiff called Mr Parker, who previously had been a workshop superintendent at Transfield at Osborne Park and had known the plaintiff there since the early‑1980's. He described the plaintiff as having been and being a capable electrical fitter. He recalled the time of the collision, after which the plaintiff was transferred on return to work on lighter work in the coils manufacturing section. At one stage, work was short in the section and the plaintiff was returned to the locomotive section rather than be put on leave. Electrical fitters employed by the company in 2001 to 2002 earned an average of $59,000 per annum, the range being from $43,000 to more than $100,000. The top six earned more than $80,000, all of them taking on site work outside the Osborne Park plant away from home. These figures are gross and include travelling allowances. In May 2003, the top hourly rate was $19 plus per hour gross which the plaintiff earned. Overtime and travelling allowances are additional and allocated so that all were given an opportunity.
Mr W D Lowcock
The defendant called Mr Lowcock, a health and safety co‑ordinator and quality manager at Transfield, to confirm the plaintiff's work history. He said the employer wanted the plaintiff to work in the wire and coils branch. That would have been so regardless of the accident. Offsite work is more likely to go to the other, generator, section. However, he did not think the plaintiff had lost opportunities to work offsite since the accident. The company would be happy for the plaintiff to work offsite given the recent medical report on his condition by Dr Kruger. There is also now more opportunity for overtime work. He produced a table of "3 year Earnings for Similarly Qualified Fitters", Exhibit 13. The comparison is between fitters of equal technical expertise, some from each of the two sections of the works, for the years 2000/01 to 2002/03. It shows the plaintiff as having earned a virtually average figure. He earns the top hourly rate, presently $19.70 per hour gross. Variables include hourly rates, offsite work and overtime. Superannuation is paid under the compulsory legislative scheme. The plaintiff has:
"... a strong future with the company and there's no reason for him to be concerned in that manner. With his background, he's got good qualifications and experience.
And how is he regarded by the hierarchy, if you like?---He has good standing with the company."
Mr D Baldwin
Mr Baldwin is the manager of Transfield's wire and coil department at Osborne Park. He became manager on 1 April 2000. He has worked there with Transfield since 1987. The plaintiff had been working in the motor and generator department:
"Do you recall Mr Del Pino going off fairly early on in your tenure for an operation, then coming back to work in wire and coils?---I was vaguely aware of that, yes. My recollection is we had a large job come into the wire and coil department. Jon was currently working in the motor and generator section. I spoke to the manager of that department and asked if Jon was available to come to the wire and coil department.
And as a result of that?---That was on 3 July and Jon started with us approximately on 24 July 2000.
Has he worked in that department since?---Yes, he has.
Would you wish to retain him in that department?---Yes.
Why is that?---Jon is a good worker. We are a very busy department. We are a growing department. Jon has had previous experience in that department so his knowledge is good to have so he's helping us grow the business.
I don't think it's in issue that he's a well‑regarded employee?‑‑‑Yes, yes, he's a very good employee."
He confirmed that the plaintiff had worked offsite, twice in Singapore and in China and Chile:
"How are people selected to do site work? It's something of a bonus financially, is it not?---It is, yes. Definitely the people getting paid larger salaries on a yearly basis, a gross salary, do a lot of site work so basically we look at what the job entails, the skill of the people involved, we look at the duration of the job, where the job is, is the person required in the workshop, and then we make a decision.
Is there any suggestion that in determining who goes on site work, Mr Del Pino's health has played any part in that consideration?---Again, commenting from 1 April 2000, no."
Nothing would prevent the plaintiff being offered further site work. However, most such work was done by fitters in the motor generator section.
Overtime is readily available, usually for two hours on workdays at time‑and‑a‑half and eight hours on Saturdays, the first two hours at time‑and‑a‑half and the last six hours at double‑time.
The plaintiff works some overtime, but not as much as others.
Medical evidence
A book of radiological reports was tendered by consent, Exhibit 5.
Medical evidence called by the plaintiff
Dr M A Beinart
Dr Beinart is a general practitioner specialising in occupational health and management of work related injuries. He first saw the plaintiff in March 2000. His reports are Exhibit 6.
In the accident, the immediate injuries sustained were a fractured left ankle, bruises to the left and right hands, burns to the left leg where it was trapped against the engine, as well as blisters to the right foot, which later became infected.
In September 2000, the plaintiff's ongoing complaints were bilateral ankle pain and stiffness, neck pain and stiffness extending into the suboccipital region, paresthesia involving fourth and fifth digits of the left hand, and intermittent dizziness and headaches.
The plaintiff had:
"... repeatedly and consistently complained of pain and stiffness in both his ankles, which is more pronounced on the left. His headaches and dizziness persist. He complains of pain in his neck and sub‑occipital area, accompanied by neck stiffness, which often radiates down his left arm into the Ulna two digits of his left hand.
He informs me that he is just coping with selected duties at work not performing the duties of an Electrical Fitter. He states he is able to do physical activity but pays for it afterwards. He does admit to be frustrated being unable to do what he used to, and that he has good and bad days.
MRI of the cervical spine requested ... indicates mild C6/7 foraminal narrowing (subsequent nerve conduction studies did not confirm nerve damage).
DIAGNOSIS
It is evident that Mr Del Pino in the ... collision, ... sustained a whiplash associated disorder to his cervical spine of grade 3 severity ie with neurological symptoms. This involves chronic inflammation and irritation of the left greater occipital neurovascular bundle, as well as facet joint dysfunction of his cervical spine. In addition he sustained a musculo‑ligamentous strains to his ankles, more pronounced on the left, as well as a fractured left ankle for which he remains asymptomatic, despite his recent surgery."
On 13 October 2000, Dr Beinart reported:
"Mr Del Pino explained to me the duties he undertook at work and the limitations he has physically. He states that he is fortunate to have a supportive employer who is cooperative and allows him to avoid the more physically demanding tasks involved in his occupation as an electrical fitter.
He remains symptomatic particularly with regards to his ankles, which limit him physically in that he is unable to stand for extended periods, work in an awkward positions or repetitively squat and kneel. In addition he continues to report neck pain, stiffness, headaches, dizziness and a tingling in his left hand.
My opinion is that Mr Del Pino as a result of injuries sustained in the motor vehicle collision on 30 August 1998, particularly the injury he sustained to his left ankle will not be capable of return to his preaccident occupation as an electrical fitter in a full time capacity unrestricted. Whilst it is my opinion his neck symptoms will improve, it is his ankles which will preclude him from returning to work in his pre‑accident occupation."
Two years later he reported:
"At last interview, Mr Del Pino informed me that he remains at work on a full time basis, performing modified duties. He reported persistent neck pain and stiffness, extending down into between his shoulder blades. On occasion the pain extends down the left arm, which occasionally wakes him. He describes no weakness in his upper limbs. He does report persistent headaches. In his ankles he describes constant pain which is increased by being on his feet for any length of time, particularly at work. This is worse on the left than the right.
He also describes having emotional difficulties, particularly frustrated and concerned regarding his vocational future. He feels that his ankles are deteriorating to such an extent that he would not be able to cope for much longer in the job. Presently he does not undertake the full duties required of him as a fitter and feels he has a limited career as a fitter. He also related how activities at work aggravate his neck condition, particularly hammering. He continues to report left upper limb pain and tingling in his left hand.
Mr Del Pino reported that he has ongoing jaw pain and that his wife tells him he grinds his teeth at night.
Of further distress to him is his reported sexual dysfunction and lack of libido. This has been present for some time, but he reports is worse of late.
MEDICAL PROGRESS
In my opinion, Mr Del Pino's condition remains static and he will not make significant gains with regards to his health issues in the foreseeable future. For his neck condition, it is important that he avoid all aggravating activities, particularly extended periods with his neck in extension and/or placing his neck under strain. For his ankles, it is important that he limits the time he spends on his feet. In my opinion Mr Del Pino's emotional distress is appropriate, considering his uncertain vocational future and the strain it places on himself and his family.
REFERRALS
For his neck, Mr Del Pino has attended occupational physician Dr Brian Galton‑Fenzi, who has recommended conservative management.
It must be noted a bone scan performed in October 2001 confirmed active soft tissue inflammation and synovitis in the left ankle as well as degenerative arthropathy in the posterior subtalar joint on the right.
For further opinion regarding his ankles, he has been referred to orthopaedic surgeon Mr Jack O'Connor, who likewise has recommended conservative management and referred him for orthotics for his shoes, in order to minimize the strain placed on his ankle joints.
WORK CAPACITY
In my opinion, Mr Del Pino remains unfit to undertake the full duties required of an electrical fitter. He is unable to work with his upper limbs held above shoulder height for extended periods or to place his neck under strain. In addition, he is unable to remain on his feet for extended periods, and requires a job where he is able to sit and stand as required.
Mr Del Pino has a work capacity and has demonstrated so. However, he is physically limited as a result of his injuries.
Mr Del Pino has reported Bruxism and joint pain. This is due to his soft tissue neck injury and the resultant recurrent muscle spasm, particularly to the muscles of mastication and has resulted in chipped teeth.
Whilst I agree that Mr Del Pino is experiencing emotional difficulties as a result of his injuries and the consequent physical limitations it has placed upon him, I feel that his emotional response is appropriate at this time, and do not feel that he warrants psychotropic medication. I do agree though, that he would benefit from supportive counselling with a suitably qualified counsellor."
On 24 July 2003 he reported:
"Current Symptoms
At repeated consultations, Mr Del Pino continues to report significant emotional and physical symptoms and difficulties relating to the motor vehicle accident he was involved in, in 1998. This he states has affected all aspects of his life and that of his family. He is of strong moral and religious conviction, which has given him great emotional support over the past years.
His physical symptoms he states continue unabated. He continues to experience neck pain, stiffness, headaches, bilateral jaw pain and grinding his teeth. He continues to report pain and parasthesiae extending down the outer aspect of the left arm into the ulna two fingers. He describes no weakness in his left upper limb. He also reports bilateral ankle pain, more pronounced on the left than the right, which is aggravated by prolonged standing and placing the ankle joints under strain, such as repeated lifting. This fluctuates depending on his level of activity and particularly is worse on cold mornings, and is easier on the weekend when he is not on his feet.
He also has residual deformities of the left little finger and the right index finger, which do not bother him.
Diagnosis
•Soft tissue neck injury (whiplash and associated disorder, grade 3). This involves recurrent inflammation of the zygo‑apophyseal joints and musculo‑ligamentous structures of the neck. This results in recurrent muscle spasm to the neck muscles resulting in local areas of myotendonitis, particularly in the trapezius muscle on the left, irritation of the exiting suboccipital neurovascular bundle resulting in his complaint of headaches and jaw grinding. There is radiological evidence of cervical intervertebral disc disease as well as osteophytic encroachment of the exiting left nerve root at the C6/7 level, which may be a factor in his reported left upper limb symptoms.
•Bilateral ankle injuries, with persisting reported pain. In addition to the bony injuries, he has likely suffered chondral damage and musculo‑ligamentous injury.
•Minor deformity to the left little finger and right index finger with normal function.
Prognosis
It is now approaching 5 years after the initial accident and Mr Del Pino continues to report significant persisting symptoms in his neck and left arm and ankles as a result of the injuries sustained in the traffic accident of 1998. Mr Del Pino reports that he is physically limited, with persisting fluctuating symptoms.
In my opinion, Mr Del Pino is left with a permanent residual disability in his neck, as well as his left and right ankles.
Future treatment requirements
Mr Del Pino remains reliant on Prodine as an analgesic which he takes on a regular basis. This is primarily for his headaches. Taking into consideration his ankles complaint, a physical exercise program is difficult for him. He has been advised to remain as active as possible, to have appropriate rest.
With regards to his neck condition which is difficult to prognosticate as to the significance of the radiological findings in his cervical spine. The concern is that if pressure on the exiting cervical nerve root becomes permanent, he may require decompressive surgery.
Current work capacity
Mr Del Pino has and has demonstrated, that he has a work capacity. In my opinion, he has been stoic and displayed a good working ethic to remain at work with support of his employer.
Mr Del Pino reports that he has difficulty in
•Maintaining any static position for a period of time, either looking upwards or downwards.
•Working in awkward spaces and above shoulder height.
•Remaining on his feet for any length of time, results in an increase in his bilateral ankle pain.
Mr Del Pino has repeatedly reported that the hammering results in severe neck pain with pain often extending down the left arm. In discussing his required activities at work, he describes an activity called 'wedging', where in winding the coils to repair them, some hammering is required. He denies having to do this activity in his present job description, nor is he required to work above shoulder height. Also in his present job description, he is allowed to have rest breaks and able to sit to take the load off his feet as required.
In my opinion, Mr Del Pino is not fit to work in any job that requires him to be
•On his feet for any length of time,
•Work above shoulder height, particularly in awkward positions,
•Be required to do repetitive upper limb movements such as hammering,
•Required to undertake repetitive lifting.
In my opinion, he is not fit to return to the full duties required of an electrical fitter. This will remain so for the foreseeable future.
Clarification of ankle injuries
At repeated consultations, Mr Del Pino has repeatedly reported bilateral ankle pain, stiffness and disability, more pronounced on the left. The radiological evidence supports that he sustained injuries to both his ankles in the traffic accident in 1998. A dynamic localized bone scan performed in October 2001 shows synovitis in the left ankle joint and degenerative arthropathy in the posterior subtalar joint on the right. For management of his bilateral ankle condition, he was referred to orthopaedic surgeon, Mr Jack O'Connor who has an interest in foot problems. Mr O'Connor recommended conservative treatment and referred him to an orthotist, Mr Gordon Smith for orthotics."
Mr D G Sneddon
Mr Sneddon is an orthopaedic surgeon who saw the plaintiff first in February 2000 concerning his ankle injuries. His reports are Exhibit 8. Mr Sneddon removed a bone fragment from the left ankle in June 2000. Unfortunately, the symptoms then worsened (although the fracture has healed) and can now be regarded as permanent. The issue is presently whether certain activity such as returning to his previous work causes increased pain symptoms in the ankle. It will not cause damage. There is no measurable disability in the right ankle, but loss of movement in the left.
Mr Sneddon also reported on other aspects of the plaintiff's condition. In November 2001, he reported:
"At time of review on the 5 November 2001 he complained of pain in his neck, with headaches, the headaches occurring several times per week, varying in severity, with no particular aggravating factors apart from lifting heavy objects. He said the neck pain was experienced on both sides of the neck, radiating into the region of his left shoulder blade, and down the whole length of his left upper limb. He said he occasionally had a feeling of pins and needles in his left upper limb, indicating the site of the pins and needles to be in the left little and ring fingers. He said the pain in his neck was present almost every day, but again no particular aggravating factors apart from hammering perhaps at work.
In relation to his right ankle, he said that he experienced intermittent right ankle pain, to some extent present every day. Twisting on his right foot appeared to aggravate it, as did heavy lifting. He said that the pain in his right ankle was on the outer side.
In relation to his left ankle, he said that he had constant pain in his left ankle, and described in the pain in his left ankle as being on the inner side and front. He said twisting movements also aggravated his left ankle pain.
On physical examination, there was no tenderness over his cervical spine or associated musculature. There was a full range of movement of his cervical spine in forward flexion, extension, and rotation to both left and right sides, with no evidence of pain being experienced with cervical spine movement.
He complained of decreased sensation to light touch involving the left little finger, the ulnar border of the finger only, not on the radial side, and not on the ulnar side of the ring finger. There was slight loss of full extension of the left little finger at the PIP joint and right index finger. There was full finger flexion of all fingers at the hand.
Examination of his right ankle revealed tenderness laterally, with a full range of movement, which appeared to be pain free. On the left side tenderness of his ankle was noted anteriorly and medially, with slight loss of approximately five degrees of both dorsiflexion and plantarflexion movements. There was a full range of subtalar joint movements bilaterally.
Mr Del Pino had recently had a Bone Scan done on the 23 October 2001, which was reported on as showing synovitis, especially on the medial aspect of his left ankle, with perhaps a degree of degenerative change in the right posterior facet of the subtalar joint.
...
The diagnosis in relation to his neck, has been a soft tissue injury to the cervical spine, with evidence of underlying degenerative change involving the disc at the C4/5 level, and mild left C6/7 foraminal narrowing.
He also sustained injuries to his ankles, on the left side there being a fracture, which has since healed.
...
I believe he has been left with a permanent residual disability in relation to his left ankle, which I have ... assessed as being 10% disability below the level of the knee.
...
I believe he has a continuing capacity for work and reaching normal retirement age. I would not impose any restrictions on him, but Mr Del Pino is aware of what activities increase his symptomatology, and he will need to work within those limitations.
I do not believe it is likely that his condition, in relation to his neck and lower limb injuries, is likely to deteriorate further."
He elaborated in December 2001:
"Some aspects of Mr Del Pino's work do seem to aggravate his symptoms. However he has different symptoms in different parts of his body, and they need to be looked at individually. As far as his neck is concerned he said that the neck pain was present everyday irrespective of what activities he was engaged in, apart from perhaps hammering whilst he was at work. Likewise his bilateral ankle symptoms were aggravated with twisting movements. Therefore those activities that involve twisting on either of his ankles or hammering will exacerbate Mr Del Pino's accident related symptoms."
In June 2003, he reported that Mr Del Pino had said there had basically been no change. He complained of the following symptoms:
"1.Pain in his neck radiating down both sides of his neck present almost every day for the duration of the whole day and aggravated with activities such as hammering or looking down for long periods, such as when reading. His specified a long period as being anything more than about an hour.
He said that his neck pain seemed to be worse in cold weather and he told me that he did not have any treatment for his neck problems since I had previously seen him and for relief of his neck symptoms he was taking Prodene 15 which is a combination of codeine and panadol.
He stated that the neck pain radiated down into both shoulder regions, mostly on the left side, and radiated halfway down his thoracic region.
2.He complained of left upper limb pain associated with numbness in his left arm as well. His left arm symptoms seemed to be in the distribution of the left ulnar nerve, occurring two or three times a week, and can last for four to six hours at a time.
3.He complains of symptoms in his right ankle consisting of pain experienced antero‑laterally constantly present although varying in intensity. He said the right ankle pain was aggravated by standing on his feet all day, and he felt that his ankle on the right side became swollen somewhat towards the end of the day.
4.He complains of pain in his left ankle antero‑medially located, also constantly present and although he says it is not a severe pain, it is aggravated by being on his feet all day and with cold weather, and again, on this side he says it becomes swollen as well after being on his feet all day.
He told me that currently he is on his feet all day, five days a week and occasionally on Saturday as well. He said that his present job was mostly standing although apparently some of the duties can be done sitting down.
...
The diagnosis in relation to his neck is that of degenerative arthritis of the cervical spine which was present but presumably asymptomatic before the motor vehicle accident in question, and subsequently as a result of a soft tissue injury to the same region, has become symptomatic. I cannot explain his left upper limb symptoms.
In relation to the right ankle, he had a sprained ankle and in relation to the left ankle, he also had a sprain injury associated with an avulsion of a small piece of bone from the lower end of the left fibula.
I believe that the prognosis in relation to his ankles is good, and in the absence of any demonstrable pathology affecting the nerves of his left upper limb, I believe the prognosis in relation to his left arm symptoms is also good.
The prognosis in relation to his cervical spine symptoms is that of the prognosis of osteoarthritis or degenerative arthritis of the spine in general, with the expectation that there will be some symptomatic deterioration with the passage of time.
...
I believe he will be left with a permanent residual disability in relation to his left ankle as being ten per cent below the level of the knee.
I believe that he remains fit to work as he has done now for several years since the motor vehicle accident in question, in the manufacturing section of his employer's business.
I would not impose any restrictions on him in relation to his capacity to work.
It is possible that his neck symptoms may deteriorate further, not so much as a result of the motor vehicle accident, but due to the presence of pre‑existing and demonstrated, underlying degenerative changes. I do not believe that he is likely to produce such deterioration in neck function that he will be further reduced in relation to his work capacity.
Mr Del Pino has sustained a sprained right ankle but as there are no demonstrable signs of ankle instability I do not believe that restrictions will be imposed on his ability to stand for any length of time in the future in the workplace.
My comments in relation to his left ankle are identical to the right."
He explained in a later report:
"My comment in relation to not imposing any restrictions on him in relation to his work is in relation to the fact that his work will not cause him any physical harm or damage and therefore I would not place any restrictions upon him. However, if he were to find, for instance, that certain types of work caused him increased pain, then Mr Del Pino himself might self‑impose restrictions in relation to his capacity to work but I, as a treating Orthopaedic Surgeon, have not imposed any restrictions on him."
Mr A C Harper
Mr Harper is an occupational physician who first saw the plaintiff in August 2001. His reports are Exhibit 9. The plaintiff was, in August 2001, currently working on light duties full‑time:
"He is coping satisfactorily although he does experience fatigue at the end of the week. He is not losing time but he has needed however to transfer from electrical fitting due to symptoms.
...
Current symptoms include:
1.Neck pain and crunching.
2.Upper back pain and left arm pain.
3.Headaches.
4.Bilateral ankle pain.
5.Deformity of left 5th finger.
6.Injury to the right index finger.
He experiences neck pain almost every day. This is a dull pain with superimposed sharp episodes. Pain extends down the full length of his neck into the interscapular region. It radiates to the right suprascapula area, across to the left shoulder and down the left arm to the 5th finger. On average neck pain is 4/10 in severity. Left arm pain can wake him at night with pins and needles in his 5th and 4th fingers. There is no neck stiffness. He experiences headaches. He says he has a dull headache on most days but severe headache only occurs approximately fortnightly. There are no associated symptoms. He experiences bilateral ankle pain with slight stiffness in the left ankle. Ankle pain occurs intermittently during the day depending upon activity. Pain may last 2 or 3 hours. There is no giving way. He says there is some swelling in the left ankle towards the end of the day on occasions. He is unable to fully extend the left 5th finger. He says there is slight deformity of the right index finger. There has been no loss of grip strength or dexterity or functional feeling in the hands.
Neck pain is aggravated by heavy lifting and driving and is relieved by moving his neck, sitting upright and clicking his neck. Headaches occur in association with neck pain. Ankle symptoms are aggravated by twisting, heavy lifting and prolonged standing. He gets relief from rest and some exercise to the ankles.
He feels ankle symptoms are getting worse. Neck symptoms have been stable for the last year.
An MRI of the cervical spine (15/03/2000) reports a slight posterior central focal disc protrusion at C4/5 with mild indentation on the anterior aspect of the spinal cord. The remaining cervical discs appeared normal. There was a mild left sided C6/7 foraminal narrowing due to an osteophyte which may have been compromising the left C7 nerve root. MRI's of both ankles (14/03/2000) reports a bone fragment in the left ankle at the anterior aspect at the lower end of the fibula. On the right the anterior talofibular ligament was thickened with a small nodule.
...
Due to his injuries he has discontinued soccer. He has reduced participation in physical activities as a group worker at his church. He has also reduced manual work at home. Sleep is restless. Dressing, showering, sitting and walking are not affected. Prolonged standing is reduced due to upper back, neck symptoms and ankle symptoms. He finds running uncomfortable. He does most of the housework but his neck is uncomfortable when vacuuming. Sexual activity has been affected. Driving is uncomfortable at times. He finds heavy hammering aggravating.
PHYSICAL EXAMINATION
On examination Mr Del Pino is a man of stated age who is of slight build and short stature. He was in no distress. He sat through the interview without apparent discomfort. His gait and posture were normal. Range of movement was normal in the thoracolumbar spine, shoulders and neck. There was tenderness over the superior angle of the right scapula and there was tenderness over the spinous process of T6. I did not elicit neck tenderness but he informs me neck tenderness is variable. There was a slight extension lag in the proximal interphalangeal joint in the left 5th finger. Power and sensation was normal in the left hand. On examination of the right hand there was normal strength and no tenderness. Range of movements was within normal limits. There was a surgical scar over the lateral malleolus of the left ankle. There was slight reduction in plantar flexion but otherwise range of movement of the ankle was within normal limits. There was mild tenderness in the region of the lateral malleolus and anteriorly over the ankle joint. There was no deformity of restriction of movement in the right ankle. There was slight tenderness medial to the medial malleolus and there was tenderness across the anterior joint margin.
The diagnosis is healed fracture to left fibula and healed injury to the right anterior talofibular ligament. He has sustained an injury to the cervical spine with a slight disc protrusion at C4/5 and foraminal narrowing on the left at C6/7 due to an osteophyte. There were mild injuries to the left 5th finger and to the right index finger.
The prognosis is for continuation in susceptibility to neck pain and ankle pain particularly on the left. There may be deterioration in neck symptoms in the long term.
He is left with a permanent mild residual disability of the cervical spine and left ankle. He has a slight residual disability of the right ankle. It is now approaching 3 years since the accident and no further improvement is occurring.
Treatment received is described above.
I have no specific recommendations with regard to any particular medical treatment. The basis of management from here on will be avoidance of aggravating circumstances and symptomatic relief of any aggravation in symptoms. I see no indication for any invasive measures.
He is capable of full time work with restrictions. Specific work restrictions are to avoid prolonged standing on a concrete floor, working in awkward positions for prolonged periods and heavy lifting. He is capable of his present work in the manufacturing section but I feel it is improbable that he will be capable of returning to heavy electrical fitting work. At present I would advise against heavy electrical fitting as I would for the future. His employability as an Electrical Fitter has been reduced by his injuries and the range of occupations within the domain of electrical fitting has also been diminished. I do not anticipate his injury precluding him working until retirement age but I do not expect him to be capable of heavy manual work.
...
There is the possibility of deterioration in his neck symptoms and in symptoms in the left ankle. He is already reporting deterioration in ankle symptoms. Any further deterioration in symptoms will add to his current incapacity for heavy manual work but I would not expect him being precluded from full time work in a light manual capacity."
In July 2003, he reported:
"He continues full time on light work in the manufacturing section of Transfield General Electric. He is not losing time from work but he says that neck and ankle symptoms are aggravated by his work. In the interim since I have seen him he has had a dental splint fitted.
Current treatment includes Prodeine 3 times a week. He sees a family doctor monthly to 2nd monthly. He has had orthotics fitted which have been of benefit.
Current symptoms include:
1.Neck pain and crunching.
2.Upper back and left arm pain.
3.Headaches.
4.Bilateral ankle pain.
5.Minor deformity of left 5th finger.
6.Injury to right index finger.
All symptoms continue without significant alteration as described in my earlier report.
Neck symptoms continue to be aggravated by lifting, driving, repetitive physical work and the head down position. Ankle symptoms are continuing to be aggravated by prolonged standing and twisting and turning.
Regarding activities of daily living he has now discontinued work in the youth group at his Church. Sexual activity is being affected more than previously. Otherwise there are no changes in activities of daily living from the description in my initial report. Recently he was asked to do some hammering by his employer with which he complied but this resulted in left arm numbness which persisted throughout the following day.
His work interest is to move into a supervisory or managerial position as he does not want to continue with the current aggravation in the long term given that he is only 42 years of age.
Two further investigations have been conducted since I originally saw him. An x‑ray of both ankles (30/07/02) reports the talar dome of each ankle to be intact with normal ankle joint alignment. There are separate ossicles adjacent to the tip of the left medial malleolus. No focal bony lesions were evident. A bone scan (23/10/01) reports active soft tissue inflammation and synovitis at the medial aspect of the left ankle joint. There was low grade activity at the distal tibio‑fibular joint on the left. Appearances suggest degenerative arthropathy in the posterior subtalar joint on the right. I have now received a copy of the original x‑ray following his accident which I have not seen previously. This x‑ray was taken on the 30/08/98. The cervical spine appeared normal. In the left ankle there was a fracture of the distal fibula with very mild lateral displacement of the distal fracture fragment. In addition there was a tiny bone fragment projected just lateral to the tip of the medial malleolus. This was consistent with a small avulsed fracture fragment. In the right ankle there was a joint fusion and there was soft tissue swelling seen adjacent to the lateral malleolus. A tiny fragment of bone was seen just medial to the lateral malleolus consistent with an avulsed fragment. In addition tiny bone fragments were seen projected laterally to the lateral malleolus suggesting a non‑displaced fracture of the distal fibular.
PHYSICAL EXAMINATION
On examination Mr Del Pino was in no distress. His weight was 53kgs. Posture, agility and gait were normal. Range of movement of the lower back, shoulders and neck were all normal. There was some tenderness in the paravertebral musculature of the neck extending into the suprascapular area and to the region of the superior angle of both scapulae. There was some tenderness over spinous processes from C5 - T2. On examination of the ankles there was no deformity. The well healed surgical scar was evident over the lateral malleolus of the left ankle. There was no ankle swelling. Range of movement on dorsi flexion in the left ankle was slight reduced but movement otherwise in both ankles was within normal limits. There was mild tenderness medially and laterally in the left ankle and laterally in the right ankle.
...
The prognosis is for continuation in susceptibility to neck pain and ankle pain particularly on the left. There is a possibility of deterioration of neck symptoms in the long term but I feel this is not particularly likely.
He has a mild residual disability of the cervical spine and of both ankles.
... I do not see an indication for any additional treatment in the future.
... I would advise against endeavouring to work as an electrical fitter. I would advise against a physically demanding job and specifically I would recommend adhering to the following restrictions. Restrictions are to avoid heavy lifting, prolonged standing, repetitive physical work, the prolonged head down position, repetitive vibration such as hammering and repetitive pivoting on the ankles.
You make reference to Mr Del Pino currently working in the manufacturing section doing lighter work than he was previously doing as an electrical fitter. I feel this has been an appropriate change. However symptoms continue to be aggravated through his physical work and prolonged standing. As he is only 42 and is interested in working until the age of 65, I feel it would be advisable for him to pursue work as a supervisor or manager if the opportunity arises.
Future work capacity will continue to be compromised. While he is capable of continuing in his present position in the manufacturing section he is only capable of doing this with aggravation of symptoms. ... I do not anticipate his injuries causing early retirement.
I feel deterioration in symptoms is unlikely. I feel it is improbable that his work capacity will deteriorate. However at this stage I do not expect improvement in his work tolerance.
I do not feel that physical work will cause further injury but working as an electrical fitter would probably produce regular aggravation of symptoms which could subsequently force him to pursue alternative employment.
I have seen the x‑ray reports of the left and right ankle taken on the day of his accident. I confirm that there were fractures both medially and laterally in the left ankle. The injuries in the right ankle included an avulsion fracture to the lateral malleolus. These injuries are consistent with his ongoing symptoms.
SUMMARY
Mr Del Pino has mild residual disability of his neck and both ankles. I feel it is advisable for him to pursue a supervisory or managerial job in order to avoid the physical activity that his current work entails and which produces aggravation of symptoms. His condition is stable and I see no contraindication to finalizing his claim."
Giving oral evidence, Mr Harper agreed with Mr Sneddon that the left ankle problem is one of symptomatology rather than of further damage to the ankle. There were indications of persisting inflammation in the left ankle, but no ligament or cartilage injury on MRI. The neck problem was soft tissue injury, there also being some mild degenerative injury evident.
Mr J E Crockett
The plaintiff called Mr Crockett, a consultant orthopaedic surgeon, who first saw the plaintiff in January 2002. His reports are Exhibit 4. In his first report, he noted:
"His current symptoms include discomfort in his neck and upper back, and left arm, with some discomfort in the right arm. He is also getting headaches. He has bilateral discomfort in both ankles and he has deformities, but no discomfort in the left little finger and his right index finger.
He is still getting neck discomfort. This is not constant and his neck can be quite good, but it is very easily irritated. For example, driving for a period, sleeping (possibly with head and neck in the wrong position) or repeated heavy lifting, (he can manage one lift satisfactorily), and working with his neck in a constrained position. The discomfort is really a tightness in both trapezius areas but when he has irritated it, this spreads up to the neck down the left arm, and into the hand, where it is associated with some paraesthesia, mainly on the ulnar side of the hand, distal forearm and the ulnar fingers. There is similar discomfort on the right side, but this is mainly in the trapezius, as far as the right shoulder. The soreness also spreads down the upper dorsal spine to about D4.
He also has headaches which are related to the neck pain and are occipito‑frontal. He is probably only getting one attack a week now, but he has learnt to be careful and not irritate his neck.
His neck is not necessarily stiff and sore in the morning, but if it is, is loosens up fairly easily with some crunching which then goes away.
Left little finger: He has a Boutonniere type deformity at the proximal interphalangeal joint. This is not painful. Both the ulnar fingers have altered, or reduced, sensation.
Right index finger also has a minor Boutonniere, with some tension felt at the second metacarpo‑phalangeal joint.
He has full movements and no problems with strength.
Left ankle: He has some discomfort antero‑laterally, which is associated with some minor swelling occasionally.
The left ankle is painful anteriorly and on the medial aspect. It is sore all the time. It has limited movements and limits him running, but does not limit him walking quickly. He has no problem over rough ground. He has a little difficulty from stiffness going up stairs, but he manages. He would avoid jumping and landing on that foot. He still has some thickening on the ankle, but the swelling does increase towards the end of the day.
There is no instability of the right ankle and he is fine on rough ground and up and down steps and stairs, or squatting, but swimming does aggravate it.
They both throb when he gets to bed in the evening and puts his feet up; the left worse than the right. The left ankle is not a problem at night, but it is stiff and uncomfortable first thing in the morning and he hobbles for the first few steps as he does after he has been sitting for any length of time, for example, in a car.
Housework: He helps his wife with the housework. He has problems, particularly with vacuuming, which irritates his back and upper back. He has no problems hanging clothes on the washing line.
...
Driving: His neck is very easily triggered by driving, and he is not sure what does it. Sometimes he can manage half an hour and then the discomfort starts. Sometimes he can manage an hour and then the discomfort starts. This progresses onto headache and the discomfort down his arms. He sometimes has discomfort in the left ankle using the clutch, but it is not a big problem to him.
...
Psychological: He has not really been overtly depressed, but he finds he is much more tense than he used to be and has had a problem from grinding his teeth and has been fitted with a dental splint for night time. He was put on Endep to help relax him, and to help with his sleeping, but he has stopped this now because he is not terribly keen on tablets of any sort.
He is not getting any flashbacks or other problems, just episodes of tenseness during the day.
He feels that his neck has more or less plateaued, but he still can't find out what irritates it and causes his episodes of increased soreness.
With regard to his left ankle, he thinks this is actually deteriorating.
...
Mr Del Pino is a electrical fitter. His work was fairly heavy. He was off work for some four months after the accident and then went into coil fitting for a period initially. He then tried back in electrical fitting, full job, but again this was too heavy and he is back coil manufacturing now. He is able to take on some overtime, although sometimes he doesn't feel up to it.
...
He used to, in his full job as a electrical fitter, travel quite a lot, but he found he could not cope with this. In his job as a coil manufacturer he is not involved in travelling at all. This has also helped to reduce his income significantly.
MRI of both ankles dated 14th March, 2000, show on the left side a 5 x 10 mm. bone fragment at the anterior aspect of the lower end of the fibula, which is probably related to the avulsion injury of the fibular end of the anterior talo‑fibular ligament. The right ankle, which is the one least giving him least trouble, the anterior fibular ligament is thickened. There is some suggestion of impingement.
Bone scan of both ankles of the 23rd October, 2001, show increased blood flow in the medial malleolus of the left ankle and in the sub‑talar joint of the right ankle, although this latter is not very marked at all. There is a suggestion in the report of degenerative arthropathy in the posterior sub‑talar joint on the right. Interestingly enough, the avulsed fragment from the tip of the left fibular only shows low grade activity.
X‑rays of the right ankle of the 18th February, 2000 show no abnormality. The sub‑talar joint as far as can be seen is OK.
X‑rays of the left ankle show an extra ossicle, which I think is actually avulsed from the anterior part of the tibia at the inferior tibio‑fibular joint but it could be calcification in the ligament, but I think it is probably a separate ossicle, probably a fracture that has healed by fibrous union. The actual ankle joint itself looks good. There is a small ossicle medially, just below the medial malleolus.
X‑ray of right index finger, dated 9th December, 1998, shows no bony abnormality.
X‑rays of the left little finger of the same date, shows no bony abnormality.
X‑rays of cervical spine, carried out on the 29th April, 1999, show C6 vertebra which is of slightly odd shape, probably a congenital variation, with some degenerative changes at C5‑6, C6‑7 disc spaces and posteriorly at C5‑6.
MRI of the cervical spine, dated 15th March, 2000, show a focal disc protrusion of C4‑5. There is mild C6‑7 foraminal narrowing, which may be compromising the C7 root.
I have reviewed Mr Del Pino's previous medical reports. I note a report from Dr Lee of the 25th November, 1998, which indicates that Mr Del Pino had some bruising of his right big toe, a painful neck, a fractured left lower fibula, a healing ulcer on the lateral aspect of his mid right foot, a sprained and somewhat stiff proximal interphalangeal joint of his left little finger, stiffness of the knuckles of his right index finger and some swelling of the medial aspect of the right ankle.
A report from Dr Kyi, of the 6th April, 1999, indicated that Mr Del Pino was still having problems with his neck with some sensory change in the left 4th and 5th fingers. Mr Del Pino was still having physiotherapy to the left ankle and apparently to the left little finger proximal interphalangeal joint.
A report from Dr Rosenthal of the 28th April, 1999, confirmed these problems.
A report of the 29th April, 1999, from Mr Edibaum, ... indicated that further neck x‑rays were normal, ...
Dr Sneddon, ... excised a fragment of bone from the left ankle late in June, 2000. Mr Del Pino was referred for physiotherapy thereafter. Meanwhile nerve conduction studies carried out by Dr Ross Goodheart, neurologist, showed no abnormality in the left arm.
A report from Dr Galton‑Fenzi, occupational physician, dated 14th September, 2000, more or less confirmed Mr Del Pino's complaints as at present.
A further report from Dr Rosenthal, dated 1st January 2001, indicated that he felt there was psycho‑social issues which had a bearing on Mr Del Pino's pain level.
OPINION PROGNOSIS AND ASSESSMENT
Mr Del Pino, as a direct result of this accident of the 30th August, 1998, has sustained:
1.A sprain of the C4‑5‑6‑7 posterior facetal joints, which has initiated discomfort in pre‑existing minor degenerative change in these joints, particularly the lower ones, which is giving him some radiating symptoms into his C7 distribution in his arm.
He had no pre‑existing problems in the area of his neck, but the degenerative change would have increased his liability to such and injury and will slow and render less than complete, his recovery.
I believe the continuing problem is due to the accident and is consistent with his explanation of events.
2.He has sustained what would appear to be sprains of the right index finger and left little finger proximal interphalangal joints. These have left him with some very minor thickening, and perhaps a minimal loss of extension at those joints, but he will be left with no measurable loss of efficient use of either finger as a result of this, though the cosmetic appearance will not ever return to normality.
3.He sustained an avulsion fracture of his left ankle. Despite some surgery on this ankle, his symptoms have not cleared entirely. A bone scan shows some increased blood flow in the medial side of the ankle. It is impossible to know whether this is actual degenerative change and if it was due to the accident or not. I would not be surprised if some pre‑existing degenerative change was present in that joint. It would tend to slow, and render less than complete, his recovery.
I believe his continuing problems are due to the accident, and are consistent with his explanation of events.
4.Right ankle: He sustained a sprain of this ankle. This has resulted in some thickening of the anterior talo‑fibular ligament, as seen on MRI. Bone scan did show some increased flow in the sub‑talar joint, which may again be due to some pre‑existing symptomless degenerative change, most likely related to age, but again an indication that this would slow and render less than complete, his recovery.
The degenerative changes in the areas of his neck and ankles are consistent with his age. They are not 'normal', i.e. they are not seen in the x‑rays of a twenty year old. They are a pathology related to age which lower the threshold for injury and slow and render less than complete, any recovery. They would not be symptomatic until injured.
Mr Del Pino's symptoms and signs correlated well and I could not detect any significant psychological overlay. Both he and his family suffered a horrific experience and it seemed to me that he had taken a pragmatic view and done his best to get back to work.
Future treatment: I think with regard to his neck he should learn or revise static and dynamic neck exercises, deep neck stabilisation muscle exercises and general neck care.
With regard to his ankles he would probably benefit from some exercises on a wobble board, particularly with regard to his left ankle.
His neck and both ankles have been left at risk of further irritation of his discomfort, but any increasing degenerative change in all three areas will be due to the passage of time and not this accident.
I think he can expect further improvement, but not a hundred per cent in any of the areas and therefore his fitness for his work will be limited. He will continue to have some difficulty with repeated heavy lifting, and working with his neck in constrained positions, and should avoid these. He will also have some difficulty, particularly from the point of view of his left ankle, moving over rough ground, up and down steps, stairs and ladders, jumping on and off objects and lifting or running.
His chances of a job on the open market have therefore been reduced by the accident, but overall in a suitable job his working life has not been shortened.
His hobbies will continue to be a little limited in that he will have to avoid physical activity such as contact sports and his independence will continue to be reduced by the fact he will need help for heavier work around the house and property, and work requiring a lot of heavy lifting and constrained positions of his head and neck.
I think his driving could be improved by learning to improve his posture and also by his neck exercises. He will however, need to break journeys into aliquots of sixty or ninety minutes to allow him to get out and walk around and stretch his neck.
I believe he is left with a permanent loss of efficient function of his cervical spine of fifteen per cent; of his left leg below the knee of fifteen per cent due to his problems with his left ankle; and of his right leg below the knee of five per cent due to the problems with his right ankle."
In his later report, he wrote:
"Background
Little has changed for Mr Del Pino. He continues to work full‑time as an electrical fitter but in a modification of his duties as per what I detailed in my original report. He has yet to receive any psychiatric care and the only medications he takes are Prodeine on an as required basis for headache. He has had no extra treatment for his neck pain. He still continues to complain of chronic constant left neck pain radiating down his left arm and associated with intermittent paraesthesias in that arm. He still complains of frequent headaches.
Psychiatrically the symptoms remain as per what I detailed in the original report. In particular he has had no nightmares of the accident in the last three months although he has had flashbacks (approximately one per week) when exposed to triggers of the accident. Please note that this was not reported in my first report. These triggers include seeing real or virtual motor accidents, hearing the sounds of accidents, or at times when he is driving (it is worse when he is a passenger), when there are trucks coming towards him. Fires or smoke, apparently are not triggers for Mr Del Pino. Overall he does not like to talk or think about the accident. He likes to distract himself and when not distracting himself his mind tends to go back to the car accident.
He has a feeling of being detached from significant people in his life and he has a diminished interest in the activities of his life and has still not returned to the Church youth group he was very involved in. He has a feeling that his life expectancy has been reduced and that he will die young. He admits that he has trouble falling off to sleep and staying asleep and that he has outburst of anger and this is confirmed by his wife who said that he has been very irritable. His wife also says that he has been more teary and that his concentration and short‑term memory and sex drive and overall level of happiness seems lower than it was prior to the motor vehicle accident. She also notes that her husband becomes very tense when driving a car or as a passenger in a car.
Mr Del Pino also says that he becomes startled with loud noises and this causes him to become frightened. When driving and he sees trucks on the road he becomes very alert and vigilant but in other situations he is not hypervigilant. Functionally there has been no change and things are as detailed in the initial report.
Mental status examination was identical ... Clinical testing revealed a mild impairment in his concentration, but a normal short‑term memory although he had to exert effort to recall the three items after two minutes.
Summary
1.Mr Del Pino complains of chronic neck pain with radiation down his left arm as well as chronic pain in his left ankle, but he says that his right ankle is also painful.
2.Mr Del Pino complains of symptoms consistent with a diagnosis of Post Traumatic Stress Disorder, chronic, mild, in partial remission. He also complains of symptoms consistent with a diagnosis of an Adjustment Disorder with depressed mood.
3.Mr Del Pino's Post Traumatic Stress Disorder and Adjustment Disorder with depressed mood are directly related to the motor vehicle accident as well as a contribution from the ongoing pain and disability from that accident.
4.Mr Del Pino has not received psychiatric treatment. He is reluctant to seek treatment although in my opinion he could benefit from antidepressant medication.
5.Mr Del Pino is working full‑time although he has modified his duties to take into account his physical disability. His psychiatric problems confer upon him a mild, partial incapacity for work but most of his functional impairment is occurring outside of the workforce.
6.Mr Del Pino will be left with a mild permanent psychiatric problem. In particular he will be left with mild residual symptoms of Post Traumatic Stress Disorder (anxiety in the car and in certain situations) as well as perhaps some hyperarousal when exposed to loud noises or other nonspecific reminders of the accident. In my opinion he will be left with mild residual depressive symptoms should there be no improvement in his neck pain and headaches which appears likely given that it is almost five years since the motor vehicle accident.
Other Comments
I note the opinion of my colleague, Dr Mustac, where in his opinion Mr Del Pino suffers from no psychiatric problems as a result of the accident. I disagree with my esteemed colleague. Concerned about the difference in opinion between myself and Dr Mustac, I interrogated Mr Del Pino's wife. She was not that psychologically minded but she did confirm my impression that Mr Del Pino does have depressive symptoms, and in particular she emphasised his irritability. She also made the important point that Mr Del Pino was a strong husband who did not like to show his distress because he wanted to protect her and the children and remain strong. I also obtained a clear history of symptoms of Post Traumatic Stress Disorder although at this point in time, almost five years since the accident, these symptoms are mild but overall Mr Del Pino still has sufficient symptoms to qualify for a diagnosis of Post Traumatic Stress Disorder in partial remission, chronic and I have highlighted those symptoms which fulfil the DSMIV TR criteria for that diagnosis."
His view was that the position would remain for the foreseeable future, but did not call for intervention. Anti‑depressant medications would assist. Pain can produce depressive symptoms for considerable periods.
Dr Zelko Mustac
Dr Zelko Mustac, a consultant psychiatrist, was called by the defendant. He saw the plaintiff in December 2002. His report is Exhibit 11A. His conclusions in December 2002 were:
"I do not find any evidence for an Axis I Mental Disorder. You will note that there is none of the intrusive or avoidance phenomena usually associated with Post Traumatic Stress Disorder.
Similarly, I do not find any evidence for a Major Depression. In particular, although he described himself as being more irritable and lacking sexual interest:
1.His sleep pattern is reasonable;
2.He is working normally;
3.He has a good relationship with his wife and children;
4.He is coping with his chronic complaints of pain;
5.There was no objective evidence of depression today. He joked with me on occasions.
From a psychiatric perspective, I would regard him as basically normal."
He was later asked to review Dr Joffe's report, Exhibit 11B. He strongly disagreed with Dr Joffe's conclusions (and, for that matter, findings of fact and methodology). He was examined and cross‑examined extensively at trial, including his comments on Dr Proud's reports. There were certain differences both in the history each had taken and their assessment of certain matters. However, in their conclusions as I understand them, whilst Dr Proud regarded the plaintiff as qualifying for a diagnosis of mild post‑traumatic disorder and depression, Dr Mustac found him to fall short of those diagnoses but to be suffering depressed mood or effect. Neither regarded further intervention as necessary or likely.
Answering Mr Bradley, he commented:
"But what you have to do is look at the symptoms individually, you have to see how they relate to the whole - the actual severity, whether they're interfering with the person's social, occupational impairment. My view is that we have a man here who had a severe motor vehicle accident. His daughter was severely injured and still having a need for surgery, I gather, and who despite that has returned to work. His work is satisfactory. He has coped well. Has a good family life but there are certain symptoms which you pointed out to me such as diminished libido or irritability. It may well be as his Honour suggested that there's a degree of depression which wouldn't qualify as a mental illness but may be to a lesser degree."
On balance, and having the benefit of the plaintiff's own evidence, I prefer Dr Mustac's position.
Submissions
Mr Bradley argues that the plaintiff is an honest, credible and reasonable witness who suffered a minor fracture of the left ankle, soft tissue right ankle injuries, leg burns, finger injuries and psychological trauma in an horrific accident.
As to causation of neck pain, the plaintiff's evidence is that he noticed this in hospital and further that Dr Crockett said in evidence that even onset five weeks later is explicable, for reasons he gave. As to arm pain, Mr Bradley said that its onset was in about January 1999, coinciding with the plaintiff's return to work and that Dr Rosenthal explained it as probably related to stress on the back or neck. Psychological trauma from and after the accident had also produced consequences. Cessation of medico‑legal procedures and of trial would alleviate some problems over time.
Mr Brooksby noted that no evidence or report was called from Dr Kyi and that no medical evidence was put before me by the plaintiff in respect of the period between the accident and Dr Beinart's report of September 2000.
Chronologically, the first two reports are those from Mr Edibam and Dr Rosenthal, both of April 1999, which report quite mild left ankle aches, pain and stiffness. The left ankle fracture was a minor one. They date from a period by which the plaintiff had been back at work for four months. Mr Edibam also noted that neck and soreness and headaches only developed five weeks after the accident and that left arm symptoms and paraesthesia in the left ring and little fingers had only recently developed. Nor is there radiological evidence. Dr Crockett agreed that if there had been facet joint sprain, the pain would be immediate and if it came on weeks after the event, could not be accident caused.
The defendant argues that there is no evidence on which to find those matters accident related, even the evidence of Dr Crockett.
Even then, the symptoms are mild and create no functional disability. Mr Edibam regarded ongoing symptoms as unrelated. Mr Sneddon based disability on subjective pain complaints. Dr Rosenthal and Dr Kruger found no disability.
On 7 January 2002, the plaintiff saw Dr Crockett and reported a long list of symptoms, Dr Crockett noting that he no longer travels in his employment but, on the same day, also saw Dr Kruger in anticipation of an employment in Chile, not reporting significant problems.
Meanwhile, the plaintiff has been employed full‑time since 1999. To the extent that he claims to have lost the opportunity for offsite work and overtime, the defendant pointed out that in 1999 to 2000, the company's work was quiet, that the company wanted him to work in the wire and coil section and that his income has varied and been typical of that of others and he has enjoyed various offsite tasks and done some overtime to an equal extent as before the accident. The evidence of others employed by the company did not suggest any knowledge that the plaintiff was unable to work as before.
During his period off work after the accident, he received sick pay and, presumably, superannuation contributions thereon. There is, however, a lack of evidence concerning the employment position relating to loss of sick leave credits. He is also entitled to some loss of overtime in that period.
As to the future, the defendant says the plaintiff does not and will not suffer functional disability and his employment and opportunity to do overtime and work offsite is not in doubt.
General damages
The claim for general damages is subject to the provisions of s 3A to s 3ED of the Motor Vehicle (Third Party Insurance) Act 1943. By s 3C(2):
"The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
By s 3C(3), the maximum amount of damages that may be awarded for non‑pecuniary loss is now $249,000, but the maximum amount may be awarded only in a most extreme case.
It was made clear by the Full Court of the Supreme Court of Western Australia in Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 that a 35‑year‑old plaintiff who had suffered a very severe left leg injury and been left with permanent disabilities including extensive scarring, deformity and a limp, which badly affected his economic, domestic and social life fell within but toward the upper end of the lowest 25 per cent of a most extreme case.
In my view, the present plaintiff clearly falls lower in the range than the plaintiff in that case.
One might also refer to the decision of the Full Court in Hendrie v Rusli [2000] WASCA 249 and of Groves DCJ in Nyssen v Foy [2000] WADC 210.
The plaintiff is an honest and hardworking man whose ongoing problems are limited despite the horrific immediate consequences of the collision and his significant injuries therefrom. He has little ankle disability but, because of neck and associated pain, has lost capacity for heavy manual labour. I am satisfied these are genuine and accident caused. He is, however, genuinely concerned and, to a degree, depressed as to his future, perhaps unnecessarily. I did not, however, find him to be obviously distressed or depressed at trial.
Doing the best I can, I place the plaintiff's case at not more than 10 per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $249,000 equates to $24,900. The provisions of s 3C(5) of the Act requires an amount in this sum to be reduced by $12,500. I therefore award the plaintiff general damages in the sum of $12,400.
Economic loss - past
The plaintiff's tax returns for the years ending 30 June 1996 to 30 June 2002 are Exhibit 2. Whilst working away from Western Australia, he has also received a tax‑free living away allowance not reflected in these returns. At trial, he was earning $19.70 per hour gross.
In 1996 to 1997, his taxable income was $59,590.
The figures for past earnings can be tabulated thus:
Year ending Net income
30 June 1998 $47,255
30 June 1999 $34,592
30 June 2000 $31,079
30 June 2001 $31,576
30 June 2002 $45,022
30 June 2003 $36,619
producing a total loss, comparing subsequent years with 1998, of $61,691.
These figures, though, do not include offsite travelling allowances. Work was quiet in 1999 and 2000 also.
The plaintiff also claims $4,177 in respect of the period 30 June 1998 to 31 July 2003 for past loss of superannuation benefits.
The evidence is otherwise sparse, however, as to his post‑accident losses. It seems he used up his sick leave credits, but the end result of that is not clear. It is to be inferred, I think, that he probably received superannuation benefit payments during this period. His principal claim, though, is loss of overtime and offsite work. I accept that he has lost some overtime work.
I allow $55,000. I allow interest thereon for five years at 4 per cent, $11,000.
Economically, he has, Mr Bradley argues, lost capacity to work offsite except on specialist light work and to obtain offsite work and to work overtime. Of 18 hours per week in available overtime, he works only about four hours. That loss extends from 12 January 1999 to trial and thereafter for a reasonable period.
Future loss of earning capacity
Mr Bradley accepts, I think, that the plaintiff's original claims under this head must be modified to reflect the fact that the plaintiff has both maintained steady employment at his full hourly rate and has improved physically and mentally over time. I accept, though, that the plaintiff is entitled to damages for some loss of future overtime and offsite work and for a limitation of his capacity for heavy manual work. I allow $50,000.
Special damages
The plaintiff claims outstanding medical expenses of $227.30 together with travel of $1,500. There is no direct evidence as to the latter. I allow $750.
Future treatment expenses
I allow $1,000 for medications.
Conclusions
For the foregoing reasons, I assess damages as follows:
General damages $ 12,400
Past loss of earnings $ 55,000
Interest thereon $ 11,000
Future loss of earning capacity $ 50,000
Future treatment expenses $ 1,000
Special damages $ 750
TOTAL $130,150
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