Kiriakakis v Voelker No. DCCIV-99-1707

KIRIAKAKIS v. VOELKER
[2000] SADC 121

Judge Vanstone

The plaintiff has brought this action for damages in respect of personal injuries sustained by him when a Mazda panel van, in which he was a passenger, was hit from behind by a Nissan Utility driven by the defendant on the 25th November, 1994 on the Willunga Hill. The plaintiff was aged 42 years at the time of trial being born on the 10th June, 1958.
The collision occurred at about 8.30 in the morning when the plaintiff and two workmates were ascending the hill at a slow rate of speed in the left-hand of two lanes for south-east bound traffic. The defendant simply drove into the back of the car in which the plaintiff was travelling, notwithstanding that the right-hand lane was apparently free. No attempt to establish the defendant’s rate of speed was made at trial. The Mazda panel van was damaged but able to be driven after the collision. The defendant has not contested liability for the collision. The live issues are whether the plaintiff was injured in any significant way and, if so, the extent of those injuries and of his residual disability and the extent, if any, of the impact of his injuries upon his income, both past and future.
The action was brought on the 27th January, 1998 being approximately two months after the expiration of the time within which the plaintiff could, as of right, sue. It is convenient to deal with that point immediately.
Section 36 of the Limitations of Actions Act, 1936 provides that an action for damages which include damages in respect of personal injuries must be commenced within three years of the event giving rise to the cause of action. In his claim, the plaintiff sought an extension of time pursuant to section 48 of that Act, and asserted that facts material to his case had been ascertained by him within the twelve month periods on either side of the date when time ran. Specifically, he relied upon information gleaned from his orthopaedic surgeon, Mr Albert Russell, in consultations in September and October, 1997 and in a written report received by him in about mid November, 1997. Further, he relied upon matters disclosed to him in a written report of his psychologist, Mr John Maroulis, which he received in January, 1998. The defendant did not dispute that these events met the requirements of section 48(3)(b) of the Act. The question of whether to grant the extension, then, devolves to a consideration of whether, in all the circumstances, it would be just to do so.
There are a number of authorities which assist on that question including Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Nominal Defendant v Warren (1997) 193 LSJS 447 and Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83. However, in the end this case does not call for a fine analysis of the various factors which may point one way or another. Indeed, in this case they all point one way. Importantly, the defendant does not claim that any prejudice would accrue if the time within which to take action is extended by the requisite couple of months. He could hardly have done so since in his possession and tendered in evidence was film of the plaintiff taken at two different work sites in May and July, 1995, that is, within eight months of the collision.
The only other matter worthy of mention relates to the plaintiff’s legal representation. Originally, he instructed Messrs. Paul Kirk, Roberts & Co., but at some point relations soured. It was agreed between the parties that, in April, 1997, the plaintiff instructed Messrs. Carabelas & Co. Whilst there is evidence that once the new firm was retained there was activity on the file, it was agreed between the parties that the proceedings were not issued within the limitation period as a result of an oversight on the part of Mr George Carabelas. Mr Doherty, of counsel for the defendant, argued that an extension of time should not be granted. But he based that argument only upon his contention that the plaintiff’s case was fraudulent. For the reasons which I shall give, it is not necessary for me to determine whether such a finding would justify a refusal to extend time within which to issue proceedings. In my judgment, it is just to grant the necessary extension of time and I do so.
I return then to the events following the collision. The plaintiff gave evidence that upon impact he was thrown backwards and then forwards. Being seated in the middle of the bench seat he was wearing only a lap seat belt. He was immediately aware of pain to his right shoulder, neck and lower back, and he believed his head had hit something. He felt “hazed out” and dizzy and when he got out of the van he sat quietly for a time on the nearby guardrail.
Although he said there was a lot of damage to the rear of the van, it was decided to drive it back into Adelaide, and from there a relative of the workmates (who were brothers by the name of Michaels) drove the three of them to the Royal Adelaide Hospital. The plaintiff was unsure of exactly what occurred in the four hours he was there but thought X-rays were taken. He was released with the advice that he should see his own doctor if he needed to.
The plaintiff said that the following day he felt numb and stiff all over his body and particularly felt pain in his back, neck and shoulder. He did not ever return to the job at Mount Compass to which they had been driving. Nor did he attend his general practitioner in the weeks following the collision.
At the time of the accident the plaintiff was working as a self-employed builder. He had reached that position by means of working within the building trade over a period of about ten years and mastering as he went various aspects of that trade. For example, he had, in that time, handled heavy machinery, learned to fix steel reinforcements, and to lay out pegs ready for foundations to be poured. During that period he had obtained his builder’s licence and employed a person who had a supervisor’s licence. Later he obtained a building supervisor’s licence after a part-time course. Then he worked with a qualified carpenter himself learning the carpentry trade. By about 1990 or 1991 he felt able enough to undertake the building of a house, sub-contracting the specialist work. From there he started to win his own building work, in competition with other builders, and to both work on those jobs and sub-contract as well, particularly the brick work and electrical and plumbing work. When he was not occupied by his own building work, he would hire out his labour to others within the industry, including the Michaels brothers. The job to which they were travelling on that occasion was indeed one where he was to be paid an hourly rate. His evidence was that, at that particular time, he did not have any of his own work on foot.
As I mentioned he did not return to that job at Mount Compass. He treated December, 1994 as a recuperative period - and perhaps that was convenient in view of the lack of work available to him.
He attempted to return to some work in January of the following year, again with one of the Michaels brothers, but he said that he could not function adequately finding that the work aggravated his symptoms, and he earned very little money. The same month he consulted his general practitioner, Dr Kerry. From there he was referred to Mr Albert Russell, and to other practitioners, as I shall outline.
When describing his symptomology during the period since the collision and to the present time, the plaintiff often measured its intensity by describing its effect upon his ability to take up and perform work. To say that is not to criticise his evidence but it was apparent that his ability to work in his chosen field and to make progress towards the attainment of his goal of being a general builder was perhaps the principal driving force in his life. Consequently, he was inclined to measure the effects of his injuries in terms of his work output. Although he spoke of no longer being able to play social soccer, squash or ten pin bowling without significant pain, I gained the impression that those pursuits were not all that important to him. The main symptoms of which he complained were headaches - from which he claimed to still suffer - dizziness - which would occasionally beset him when he stretched his neck to the extreme left or right accompanied by a sharp movement of the eyes - back pain - particularly in the lumbar region - and weakening of his right arm strength associated with pain. A further symptom of ringing in his ears was explored and apparently resolved after treatment. The plaintiff said that these problems markedly affected his work output, particularly in the two years following the accident, and also set back the development of his business. There was marked improvement by some time in 1997, by which time he considered that his physical output was much improved, as was his ability to put in the long hours required for tendering for jobs. Whilst by 1997 the plaintiff said he could take on most of the physical work which he had previously performed, it would take him perhaps twice as long to complete it. The plaintiff said that there was further improvement since 1997, but his work output both physical and mental was still diminished. He said that he still suffered badly from headaches, stiffness in his back and neck and reduced strength. The plaintiff attributed some of the improvement in his work rate to techniques in pain management which he had developed with the assistance of his psychologist, Mr J Maroulis, whom he consulted regularly between August, 1995 and the time of trial. The plaintiff seemed, at some points, to incline to the view that the intensity of his symptoms had not changed so much since 1997; rather it was his ability to withstand and deal with them which had shifted.
It was not easy to discern exactly what the plaintiff’s difficulties were from his evidence. Sometimes he had trouble understanding or directly answering questions. His imperfect English could have contributed to that. And also I acknowledge that describing pain and its extent can be difficult. But, in respect of some aspects of his ailments, I found it hard to grasp what exactly were the plaintiff’s problems and what was their progress over the years since the accident. In addition, I found him to be rather an unusual witness. I formed the view that there were possibly other issues in his life which were concerning him at the time of the accident, including the building recession which occurred in Adelaide in about 1994 and which lasted for several years. It seemed to me that perhaps in an unconscious way the plaintiff might have laid all his troubles at the feet of the accident. In all those circumstances his contemporaneous complaints to medical practitioners and their assessment of them assumed more than the usual importance.
I turn then to a consideration of the plaintiff’s medical evidence.
While the plaintiff saw other specialists in an effort to explore his dizziness and episodes of tachycardia, the witnesses presented at trial were only those whom I have already named. Accordingly the plaintiff’s case relied heavily on Mr Albert Russell. Mr Russell provided five medical reports over the period February, 1995 to October, 1999 (which were tendered) and gave quite extensive evidence.
In his first report, dated the 27th February, 1995, Mr Russell diagnosed “an injury to [the plaintiff’s] degenerative neck where he has minor disc bulges at C3-4 and C4-5 levels with narrowing of the right foraemn (sic) causing pain at C5 to the top of the right shoulder”, and an injury to the plaintiff’s lumbar spine “where he has a left paracentral disc bulge at L5-S1 and at L1 nerve root effacement of fat”. By the time of his last report dated the 7th September, 1999, Mr Russell had added to those “an injury to his thoracic spine where he has a small bulge at T10-11 disc.....”, and reference to the painful arc of movements of the right shoulder from 90 to 160 degrees on abduction. (I note that in his report of the 23rd November, 1995 Mr Russell recorded that torsion of the thorax was normal but after review on the 14th February, 1996 he reported that “thoracic torsion hurt the lower thoracic spine”. By October, 1997 torsion was said to “hurt the mid and lower thoracic spine”. The absence of complaints or findings in relation to the thoracic spine is notable in the reports of Dr Kerry of the 11th May, 1995 and the 11th March, 1996 to which I shall come.)
Mr Russell considered that the plaintiff’s injuries had stabilised after the elapse of a year from the accident day. He expressed the level of residual disability in terms of percentage loss of function. In his report of the 23rd November, 1995 the percentages he allocated were 30 per cent of the neck, 30 per cent of the lumbar spine and 10 per cent of the thoracic spine. By the time of his final report the percentages were 30 per cent cervical spine, 15 per cent thoracic spine, 30 per cent lumbar spine, 10 per cent whole right lower limb (where he had recorded complaints of numbness and pain) and 20 per cent loss of function of the right shoulder.
A central plank of the defendant’s case was presentation of film of the plaintiff working on two building sites in 1995. Mr Russell and the other expert witnesses were shown the film just prior to the time when they gave evidence.
The first footage was taken over two days in May of that year. The plaintiff was shown working on the erection of a large shed, being assisted by one of the Michaels brothers. He is shown using a number of tools both at ground level and from a ladder and lifting and positioning rafters and sheets of iron. Whilst it did not seem to me that the work proceeded with any rapidity, I agree with the description later given by Mr Cornish, the orthopaedic surgeon called by the defendant, to the effect that the plaintiff impressed as being very workmanlike in his activities and was seen using his physical capacities in a broad spectrum and apparently effectively. There was some attempt by the plaintiff’s counsel and a couple of his witnesses (including Mr Russell) to point to one or perhaps two parts of the footage where the plaintiff appeared to stretch or “ease his back”, but in my mind this is nothing less than one would expect from a person performing reasonably heavy work including bending and stretching over a number of hours. Apart from that suggested indicator of discomfort and the plaintiff’s contention that he was working at a slower than normal rate, there was no sign of any impediment to or restriction of movement nor any visual expression of pain. There was no indication that the plaintiff was avoiding any of the tasks at hand either. Indeed the plaintiff looked to me to be enjoying the work: he had a spring in his step and was animated in the instructions he was giving to his offsider.
The second film, taken in July, 1995, was of a building site - presumably a house - of more than one level. The plaintiff was shown working at above ground level, balancing on an uneven surface and using tools. As with the earlier footage there was nothing about the plaintiff’s movements which suggested to me any physical restriction or ongoing pain.
When asked of his response to the May, 1995 film Mr Russell said it did not change his views which he said were well considered. He observed that the plaintiff had not denied the ability to work and the film showed him performing what Mr Russell called “light work”. He saw no necessary contradiction in the plaintiff’s claim of bouts of dizziness as against his preparedness to stand and work on the top rung of a large step-ladder. In respect of the July, 1995 footage, he again said it caused no change in his views. Observing that the plaintiff had at times raised his right arm well above 90 degrees he said that the complaint had been not inability to make that movement but rather pain upon doing so.
Mr Cornish on the other hand said the following of his own response to the May film:
“I saw him four months after this film was taken. I was informed of a much greater - well a significant level of physical incapacity and that certainly wasn’t apparent in the film.”
“......there was no indication he was working around any disability.”

Mr Cornish said that if there had been restriction, pain or discomfort he would have expected it to have become apparent, particularly during the first day’s filming, which covered about five hours of the day. His response to the July footage was similar.
I much preferred Mr Cornish’s evidence on the significance of the film evidence. I found it hard to reconcile the activities of the plaintiff on film with the picture of him presented in Mr Russell’s five reports which, as I have observed, covered the period before and long after the films. There were other less important features of Mr Russell’s evidence which concerned me too. For example, he was prepared to attribute to the accident a 20 per cent loss of function of the right shoulder - which he said was permanent - when no pathology was demonstrated and in circumstances where, whilst there was complaint of pain in the right shoulder when he first saw the plaintiff, he recorded no limitation of movement. Then again I found Mr Russell’s assertion that he had destroyed notes which had been dictated and transcribed concerning consultations by the plaintiff to be extraordinary. The absence of them became apparent because of exploration of an alleged inconsistency in the plaintiff’s account of a fall subsequent to the accident. Further I found Mr Russell to be at times evasive (the questioning as to the missing notes provides an example) and at other times unready to answer in a helpful way perfectly sensible questions. (For example, see T pp412-416, 417.) And he displayed a preparedness to argue the plaintiff’s case (for example T pp417-421).
Accordingly I was not prepared to accept Mr Russell’s evidence as to diagnosis or level of residual disability, although as a record of the plaintiff’s contemporaneous physical complaints over a long period, his medical reports remained of some use.
The plaintiff’s other medical witness was Dr Jack Kerry, a general practitioner of forty years experience. I mentioned in passing his reports of May, 1995 and March, 1996. He saw the plaintiff for the first time regarding the accident on the 20th January, 1995, and saw him regularly until March of that year by which time he had referred the plaintiff to Mr Russell. In his first report Dr Kerry expressed the view that the plaintiff had suffered a whiplash injury to his neck and a lumbar muscle strain. He expected the plaintiff’s working capacity to be affected for “a matter of a few months”. Having seen the plaintiff again on the 11th May, 1995 Dr Kerry advised that his opinion was that the injuries had stabilised and that the plaintiff was left with some residual disability of his neck (quantified at five to ten per cent) and back (given as five per cent).
When asked in evidence of his reaction to the two films, Dr Kerry frankly said that his opinion had changed a little. He said that he had thought that the plaintiff had a minor disability both in his cervical and lumbar spine, but he now thought that the disability might be even less than as previously estimated. When asked what influenced him to change his view he said:

“Well, with the freedom of movement, of bending over, balancing on ladders, the position of his shoulders in riveting panels into the roof, the twisting and turning of his body, bending over riveting panels of sheets without flexing the knees. There didn’t seem to be any limitation or obstruction in his movements, and one would have thought that if there was a disability there, of any note, he probably had more frequent rest periods, but would be restricted in some way or another, in the way he moved his body, which didn’t seem to come across in the film.”

I found Dr Kerry to be an honest and reliable witness. He seemed to me to show objectivity.
It is convenient to turn back to the evidence of the defendant’s witness, Mr Cornish. Reports of Mr Cornish based on consultations on the 14th September, 1995 and the 2nd April, 1998 were tendered. In the first of those, Mr Cornish found the injuries to be not yet stable. He referred to the plaintiff’s presentation of a “somewhat florid pain state”. In both reports he noted the lack of physical features able to support the complaints of a pain state.
In evidence he said he was not able to attribute the disc bulgings at the C3/4 and C4/5 levels nor at the L5/S1 level to the accident trauma. He said there was no obvious association. Under cross-examination Mr Cornish observed that such degenerative changes take about two years to appear. Mr Cornish accepted that where such degenerative changes existed but were asymptomatic, accident trauma could render them symptomatic without it being obvious in any imaging material. Further he accepted that the accident trauma could have worsened the degenerative changes. Mr Cornish agreed that to the extent that the plaintiff’s symptoms were genuine, the explanation lay in one or other of those scenarios.
I accept Mr Cornish’s evidence. As I observed previously his reaction to the film accorded with mine. To me he seemed an objective witness and his views of the plaintiff were consistent throughout his examinations and evidence. However, Mr Cornish’s evidence does not exclude some minor trauma to the plaintiff’s neck and back arising from the accident. I am not prepared to reject the plaintiff’s evidence of injury out of hand and I accept Dr Kerry’s 1995 assessment of minor soft tissue injury to the neck and back. I am not satisfied of any injury to the right arm, right leg or thoracic spine occasioned in the accident.
On the basis of the evidence of Dr Kerry and Mr Cornish and the films I find that the injuries - such as they were - had stabilised at least by the end of 1995. And on the basis of the film evidence, and rejecting the evidence of the plaintiff as to this matter, I find that after 1995 the injuries no longer were appreciably affecting his work capacity or rate.
Insofar as Dr Kerry in his opinion given after seeing the films did not wholly deny that there was any permanent disability, nor do I. But in my view it is extremely limited, and will be in the future manifested by occasional pain rather than physical inability to perform tasks.
I turn to the various heads of damages.
In respect of non economic loss I am satisfied of the matters set out in section 35A(1)(a) Wrongs Act, 1936. I am required by section 35A(1)(b) to assign a numerical value between 1 and 60 as a measure of the severity of non economic loss. The figure I have determined upon is 4. In selecting that number I have noted that the plaintiff’s injuries did not require surgery or admission to hospital, but caused him pain and distress and the loss of the amenities of life for a period, but not the period claimed by him. Using a multiplier of $1,430, the compensation figure at which I have arrived is $5,720.
I turn to past economic loss. Being not satisfied that the plaintiff’s injuries had any impact on his work after 1995, I confine the period of the relevant loss to November, 1994 to December, 1995. The calculation of that loss is difficult. It is not clear to me from the taxation returns and financial statements presented covering the financial years ending June, 1991 to 1999, that any loss in the period I stipulated is demonstrated. The plaintiff’s income over the years fluctuated markedly. That is not surprising in light of the nature of his work. In each of the financial years ended June, 1994, 1995 and 1996 the plaintiff’s tax returns show his business as a loss making concern. No doubt the building downturn experienced in South Australia in those years was partly responsible. It is hard from the figures presented to discern any impact upon the plaintiff’s earnings made by the asserted impact on output of his injuries. However, accepting the evidence of the plaintiff that there was a marked impact on his work rate in the year or so after the accident, I am prepared to fix a lump sum as a measure of that loss. I recognise that the sum selected is necessarily arbitrary but that seems to me to be dictated by the very circumstance I have mentioned. The sum I have chosen is $5,000.
Interest is payable on that amount. Using a rate of five per cent I have arrived at an allowance of $1,300 for interest.
In relation to the question of residual disability and its likely effect on earning capacity I have observed already that I accept Dr Kerry’s assessment of a very minor degree of permanent disability to the lumbar spine and neck. I consider that for as long as the plaintiff continues in his current work circumstances it will have no appreciable effect on his earnings. Indeed at some point it seems likely that the pre-existing degenerative changes already referred to will eclipse any minor residual effects of the accident. But I consider it appropriate to allow some compensation for the possibility that the plaintiff’s circumstances might change and he might find himself competing for work with persons not having a history of injury, and that the history he has might cause one or more periods of unemployment. Accordingly the allowance I make under this head is $12,000.
In terms of special damages, the position is to a degree complicated. With one exception I am prepared to find that the expenses for medical treatment and physiotherapy were necessarily and reasonably incurred as a result of the accident. (The exception relates to ENT examination. I accept that referral to such a specialist to explore dizziness was warranted but it unearthed an unrelated problem for the treatment of which the defendant is not responsible. Consequently I allow only the first four consultations with Dr Williams, amounting to $224.20.) I do not make the same finding with respect to all the consultations with Mr Maroulis, the psychologist. I have not found it necessary to say thus far that I was unimpressed with his evidence. His diagnosis of the plaintiff’s psychological problems was unconvincing. I gained the impression that the plaintiff’s presentation puzzled him. Even he recognised that the regularity and frequency of the plaintiff’s consultations of him might not have been justifiable. He said that by January, 1998 he considered that the plaintiff should consult him only on a “needs” basis. In my view only a proportion of the expenses incurred with Mr Maroulis were referrable to the accident and were necessarily incurred and reasonable. In allowing 75 per cent of the total of Mr Maroulis’ accounts of $5,364 there is probably an element of generosity to the plaintiff, but I do so. Therefore of the claimed special damages I allow $4,622.40 and I note that an amount of $2,793 has already been paid by the defendant.
In my opinion it is not appropriate to allow anything against the possibility of future treatment.
A summary of my assessment of the quantum of damages is therefore as follows:
Non economic loss  $5,720.00
Interest   1,300.00
Economic loss
   Past   5,000.00
   Future  12,000.00
Special damages   4,622.40
  _________
$28,642.40
  _________
I extend the time for filing of the plaintiff’s claim to the 27th January, 1998.
Judgment is entered for the sum of $28,642.40.
I shall hear the parties as to costs.

[2000] SADC 121

28 September 2000