Laurendi v Boral Contracting Pty Limited
[2002] WADC 35
•27 FEBRUARY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LAURENDI -v- BORAL CONTRACTING PTY LIMITED [2002] WADC 35
CORAM: VIOL DCJ
HEARD: 22-26 OCTOBER 2001
DELIVERED : 27 FEBRUARY 2002
FILE NO/S: CIV 3361 of 1998
BETWEEN: JOSEPH LAURENDI
Plaintiff
AND
BORAL CONTRACTING PTY LIMITED
First Defendant
Catchwords:
Negligence - Plaintiff jumping from rolling truck - Negligence admitted - Assessment of damages - Issues as to injuries and their sequelae - Whether plaintiff suffered loss of earnings and earning capacity - Turns on own facts
Legislation:
Nil
Result:
Plaintiff awarded general damages $40,000, loss of earnings $97,591, gratuitous services $2,500, future dental expenses $22,500, special damages $24,031.50. Total $186,622.50.
Representation:
Counsel:
Plaintiff: Mr B G Bradley
First Defendant : Mr G R Hancy
Solicitors:
Plaintiff: Bradford & Co
First Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bowen v Tutte [1990] A Tort Rep 81-043
Thomas v O'Shea [1989] A Tort Rep 80-251
Van Gervan v Fenton (1992) 175 CLR 327
Wade v Allsopp (1976) 10 ALR 353
VIOL DCJ: The plaintiff was born on 6 February 1960 and is therefore now 42 years of age. On 8 January 1998 when the plaintiff was 31, he was involved in an accident ("the accident") at work at Naval Base. On that occasion, the plaintiff was a truck driver involved in the dumping of sand at a tipping location under the control of the defendant. The truck rolled over in the course of a tipping operation and the plaintiff jumped from the truck in an attempt to avoid injury.
The plaintiff alleges that the accident was due to the negligence of the defendant and, although in the defence filed on behalf of the defendant such negligence was denied, shortly before the trial of this matter the defendant admitted its negligence.
The plaintiff alleges that he suffered a number of injuries as a result of jumping from the truck, some of these injuries being serious. The plaintiff also alleges that he suffered a number of permanent and continuing disabilities as a result of the accident and that he has suffered a loss of earning capacity, both in the past and future. Various other claims were made by the plaintiff.
The defendant in its defence denied that the plaintiff had suffered any injury as alleged and pleaded that if any such injuries, symptoms, loss or damage were caused to the plaintiff, they were caused by or contributed to by injuries sustained by the plaintiff in a motor vehicle accident in September 1998 (ie. eight months after the accident), or by underlying degenerative disease of the cervical and associated spine and associated structures, and/or a combination of those two matters. It was also denied that the plaintiff suffered any limitation on his ability to work but that if he had, he was "in any event fit to work in a wide variety of occupations" and would, therefore, not sustain any economic loss or damage as a result of the defendant's negligence.
The matter is, therefore, one for assessment of damages only.
The injuries alleged by the plaintiff to have suffered by him in the accident are as pleaded in par 9 of the statement of claim ie. 9.1 disc prolapse at C5/6, 9.2 disc prolapse at C5/6, 9.3 disc prolapse at C5/6, 9.4 disc prolapse at C5/6, 9.5 disc prolapse at C5/6 and 9.6 disc prolapse at C5/6.
The plaintiff set out in par 13 the particulars of his permanent and continuing disabilities:
"(a)Constant neck pain;
(b)Limited use of right hand;
(c)Limited use of left hand;
(d)Constant tingling and painful sensation in right hand;
(e)Constant tingling and painful sensation in left hand;
(f)Limitation of movement of the spine;
(g)Difficulty walking for prolonged periods;
(h)Difficulty standing for prolonged periods;
(i)Difficulty sitting for prolonged periods;
(j)Reduced capacity to participate in and enjoy sport and recreational activities;
(k)Inability to drive a car;
(l)Inability to drive a truck;
(m)Inability to carry out household duties including gardening, lawn mowing and general maintenance;
(n)Insomnia
(o)Unable to concentrate due to pain;
(p)Depression;
(q)Unable to interact with children;
(r)Loss of enjoyment of life generally."
The plaintiff has claimed, in particular, that he suffered a loss of earnings from the date of the accident until the trial on the basis that he was totally incapacitated for all forms of work and, as to the future, alleges that because of the accident, he will be unable to perform any form of manual or other form of employment in the future and claims a loss of earning capacity at the rate of $1,200 net per week until the age of 65. Particulars of past medical expenses, future medical expenses, travelling expenses, past gratuitous services and future services were set out in the further and better particulars of statement of claim filed on behalf of the plaintiff on 18 October 2001.
All these claims are in issue.
The evidence
The plaintiff was the second of six children born to his Italian parents who migrated to Australia in the 1950s. The plaintiff left school at the age of 13 to go to work and was apprenticed to a furnishing company. He felt that he was unable to earn insufficient money in that occupation and left to work in a fruit supply business. In that business, he did a variety of work and thereafter, worked for his parents in delicatessens for a number of years. His evidence was that he worked very long hours and "loved working". He was married in 1986 and there are three children of that marriage. This marriage ended in 1993. The plaintiff had several further jobs and then bought a newsagency which was sold after about nine months because of a capital profit available. He was then involved in a coffee shop. He then obtained a business as a loader operator and having sold this, became involved in another delicatessen. He was employed in that business and worked long hours.
In 1996, the plaintiff, with the assistance of his brother Tony Laurendi, bought a Kenworth prime mover truck and began business as a sub‑contractor truck driver. His brother arranged for work for him to do with WA Limestone, he and other brothers were working for the same company. After a few weeks, the plaintiff began working for the defendant company, as did his brother Tony Laurendi. In the former business, they were paid at a rate per trip and the same applied with the work for the defendant. The plaintiff worked a 13 day fortnight from approximately 6.00 am to 3.30 pm to 4.00 pm - he said he was busy all day. The truck was a large rig with a load maximum of 23 to 24 tonnes and a total tonnage of 42‑1/2 tonnes when loaded. It involved a 28 foot trailer. He then went to the job at Naval Base with the defendant where an hourly rate of $54 to $60 per hour was paid with the defendant supplying the fuel.
It was in the course of doing that job that the plaintiff was injured. The injury occurred whilst the plaintiff was backing to tip a load of saturated sand. The tailgate of the truck was not opened (as a result, the plaintiff alleged, of the negligence of a servant of the defendant one "Dodds") and the sand shifted to the back of the truck causing it to tip over. The plaintiff jumped from the truck in order to avoid being in the truck when it tipped over and struck his face on the ground, with his hands out in front of him. The plaintiff was immediately in severe pain and said the whole of his body was throbbing. He was taken by ambulance to St John of God Hospital in Murdoch where his cervical and spine and both hands were x‑rayed. The plaintiff was treated by Mr M Halliday, orthopaedic surgeon. The plaintiff was given morphine injections and oral pain killers and discharged the same day. Because of the pain that he was suffering, he went again to the hospital on the evening of 8 January 1998 where he received a further morphine injection. The plaintiff by this point had been remarried - some two to three months before the accident to his present wife, Paula Laurendi. He had known her for several years before this marriage. The plaintiff was in severe pain in a number of areas of his body, particularly his hands, neck, legs, groin, back, arms, mouth and teeth. He said, as before, his whole body was throbbing and the symptoms continued in the months between January and June 1998. During this time, the plaintiff received physiotherapy from a hand specialist and continued to see his general practitioner, Dr John Acquilina for various medications, particularly for pain control reasons. He also had manipulative treatment from Sue Hutton. In April 1998, the plaintiff was referred to a neurologist, Dr Wally Knezevich, who performed an EMG study on the plaintiff. He was then given a cervical spine MRI at the request of Dr Halliday. Ultimately, the plaintiff was found to have a disc prolapse at Level C5/6 in his cervical spine - this had apparently not been diagnosed prior to this time. There was also compression of the nerve roots in the area of that level. On 21 June 1998, the plaintiff underwent operative treatment by Mr Halliday at the Mount Hospital where an anterior cervical fusion at C5/6 was performed and there was decompression of the nerve roots.
The plaintiff was three days in hospital and after the operation, found that he was not receiving any more "electric shocks" in his spine and body generally but that all the other symptoms he had previously suffered from remained, including the fact that although he could move all but the index fingers of his hands, his index fingers were numb and he was unable (as he still is) to bend any of the joints of the two index fingers, save for the joint attaching to the hand generally. As before, the plaintiff was unable to look after himself at all at home and his wife did everything for him of a personal and other nature. He was unable to do any of the work around the home which jobs he had previously performed. The same position continued during 1999 and 2000. The plaintiff said that on a number of occasions per week, he had experienced "excruciating" pains in the middle of his back, some to the extent that he wanted to vomit. He had a variety of areas of pain in the positions already mentioned.
At the present time, the plaintiff suffers from similar symptoms including constant pain from his neck and other areas of his body. His wife continues to do a lot for him, however, he can do more personal things at the moment than he did before.
He is involved in an exercise regime, stretching everyday and squeezing a ball and another small machine with his hands - this was given to him by the physiotherapist. He has spas and regular massages in an attempt to relieve the pain and discomfort in his back. The plaintiff is on a variety of medications including Panadeine Forte, Endone, Temazepam and Lovan. The plaintiff was most concerned about his personal and emotional condition, saying that he was "not the same man" as he was before the accident and that his wife, in fact, left him for a time but is now back with him. He tries to do certain things, including feeding the babies, cooking some dishes, sweeping outside, however, he is unable to do any gardening and other work around the house, all of which he did before the accident. Since the accident, he has tried to work in several areas, including going back onto his truck in the second half of 1998, however, he found he was unable to do this. He tried to work for a short time at Smith's Frozen Foods and in a deli owned by his mother, all of these jobs caused him to have his areas of pain exacerbated. The plaintiff said that he is now a moody person and his personal and sexual relationship with his wife has been affected. The plaintiff said that he was involved in a wide range of recreational pursuits before the accident, however, he is unable to undertake virtually any of these although he has been several times fishing since the accident and does some limited amount of walking and exercising. So far as the truck was concerned after it was repaired by the panel beaters, his brother Tony took over the truck and bought it from the plaintiff and Tony now makes the regular payments on the truck. In the course of his evidence, the plaintiff confirmed in almost every respect the permanent and continuing disabilities pleaded in par 13 of the statement of claim. It was the plaintiff's evidence that he felt that he was unable to return to work, although he was constantly trying to do so. In the course of his evidence, the plaintiff stood up on a number of occasions and was apparently uncomfortable sitting for any continuous length of time. The plaintiff was reasonably articulate and displayed a good command of the English language although he occasionally did not understand some of the questions being put to him. He was obviously upset by his condition and gave the impression that his inability to work and his relationship with his wife in particular were matters that upset him considerably.
The cross‑examination of the plaintiff involved a number of questions put to him as to assistance received by the plaintiff from time to time from family members. For example, he received assistance in the obtaining of his front end loader, the truck and worked in various family businesses from time to time. In the course of the cross‑examination of these matters, the plaintiff was referred to his taxation returns in Exhibit A. It was suggested to the plaintiff that he was dependent upon his family in the past and, presumably, was unable to operate a business or obtain a reasonable occupation on his own behalf. Having seen and heard the plaintiff's evidence and perused the taxation returns, I am not able to find the inference which such cross‑examination sought to establish. It is clear from the plaintiff's evidence that there was a close relationship between the various family members and there was a degree of interdependence in the family in terms of lending of money and the making available of work. It is the case, however, that the plaintiff did embark upon his own low loader business and then trucking business and that this was successful until his accident. The income received by the plaintiff as evidence by his returns and other evidence will be considered in due course. The plaintiff was then cross‑examined as to his medical history and it was the case that he had been referred to a number of medical practitioners by his solicitors rather than by his treating general practitioner and other specialists. It was apparently the intention in such cross‑examination to suggest that these references were made in an attempt to strengthen the plaintiff's claim for damages. When the medical evidence is taken into account, there was some limited support for those suggestions. There were also suggestions put to the plaintiff that his injuries were either not as severe as alleged by him or, in fact, did not exist on the basis that the plaintiff had either exaggerated his symptoms when seen by various medical practitioners or that those practitioners had given the opinions to the effect that he was not as badly incapacitated as alleged by him. These aspects of the matter will be dealt with in due course. It was the plaintiff's position during the cross‑examination generally that he was injured as alleged by him and that he did in fact suffer from the various disabilities complained of by him. His answers to various questions were, prima facie, not evasive and were straight forward and, on occasions, vehement. When it was suggested that he was conducting this case in an attempt to obtain money to which he was otherwise not entitled, his attitude was that "no money could ever take away or buy what I feel at the moment". He confirmed that he was still trying to find work and did on occasions go out in motor vehicles with his brothers and, on occasions, attempted to find work as a sales representative - he was unable to continue to find such full‑time work and felt that he could not obtain full‑time work in a clerical capacity.
The plaintiff gave the impression of a person who was very concerned about the incapacities complained of by him and the effect that the serious injury which he had suffered had had upon him personally and upon his ability to work. It is beyond question that the plaintiff, before the accident, was hardworking and reliant upon his ability to perform manual labour and work in a variety of jobs which involved a lot of physical activity such as operating a delicatessen. Were it not for medical opinions, the evidence as to the state of the plaintiff's index fingers and his apparent increasing, rather than decreasing symptoms in the rest of his body, I would not be led to any conclusion that the plaintiff was being evasive or was attempting to exaggerate his condition.
During re‑examination, the plaintiff confirmed that as he fell on to the ground, he had bruising to his face and a number of teeth were broken, indicating that he had struck the ground face first. His mouth was full of dirt and he was numb around his nose area. He also obviously fell on his hands as evidenced by the injuries he received - he described them as being "like balloons" after the accident. He also confirmed that in the course of his work as a driver, he used his rear vision mirror in order to back. He had not been able to afford the necessary repairs to his teeth. As to the suggestion that his family were paying him in the delicatessens from time to time without him doing any work for such pay, he said that he only got paid when he worked and that the family would rather pay someone in the family rather than outsider if possible.
Evidence was then received from Giovanni Laurendi and Vincenzo Vitalli as to earnings they had received in the course of their work as a truck driver at times in the last few years. There was an issue as to the admissibility of such evidence, however, it was determined that the evidence was admissible to the extent that it gave an indication of the level of earnings available in the industry at the relevant time. There are obviously differences between the businesses of each of the owner drivers, these being highlighted in cross‑examination of Mr Giovanni Laurendi, however, there is clear indication that an income of reasonable proportions was available at the relevant time to the plaintiff.
Dr John Acquilina has been the plaintiff's general practitioner for many years. He seemed rather unprepared for the giving of evidence. His first report was issued on 6 February 1998, Exhibit D. It is clear from the evidence of Dr Acquilina that the plaintiff has seen him on many occasions since the accident and that Dr Acquilina, in the course of his work as a general practitioner, has seen fit to prescribe a variety of medications to the plaintiff and order other treatment. It was suggested in cross‑examination to Dr Acquilina that he was somehow remiss in not referring the plaintiff to various specialists from time to time and, in particular, Dr Marsden. I got the impression from Dr Acquilina that when he considered it necessary, he did refer the plaintiff to specialists and, having regard to the cross‑examination in relation to Dr Marsden, I was not concerned that there was any reason why he should have referred the plaintiff to him or an occupational expert. In fact, Dr Acquilina had referred the plaintiff to CRS Australia (Commonwealth Rehabilitation Services) at one point. There were several matters of significance in the evidence of Dr Acquilina. Firstly, it is clear that the plaintiff has made consistent complaints of pain to Dr Acquilina from the time of the accident to the present time and with those complaints appearing to be of an increasing severity. Secondly, the medications have been given, apparently when necessary, with Dr Acquilina keen to reduce them down when he has been able to. He gave evidence that he has stopped the plaintiff taking - and has allowed him, only in recent times, Panadeine Forte for severe pain.
The plaintiff's wife, Mrs Paula Leanne Laurendi, was a valuable witness in the sense that she was able to give a clear history as to the plaintiff's condition and attitude both before and after the accident. It was the evidence of Mrs Laurendi that before the accident, she and he had a good life and he was enjoying his work. He was extremely active outside and within the home environment and their marriage was a happy one. This changed after the accident to the extent that Mrs Laurendi left the plaintiff for some 12 months during the last few years. She has returned to the plaintiff because she loves him but he is a different person, she says, from the man she married. She described the plaintiff as being in constant pain from the time of the accident to the present time with this being evidenced by various comments made by him from time to time, his constant movements to place himself in a comfortable position, his inability to sleep properly and his mood swings, which apparently coincide with increasing bouts of pain. Mrs Laurendi was rather unsure as to the exact number of hours she performed for the plaintiff over and above those which would normally be given by a wife to a husband, however, it is clear from her evidence that for something in the region of up to three months after the accident, she did everything for the plaintiff of a personal and other nature with this tailing off until the plaintiff's operation on 21 June 1998 when, once again, for a period of some weeks, she did everything again for him. She said that since then, the plaintiff has been able to rely less upon her, but she still does things for him out of the ordinary. I got the impression from Mrs Laurendi that she was a straightforward and honest witness who was doing her best to describe the plaintiff's condition and her relationship with him even though, obviously, that was difficult because, to some degree, it was necessary for her to deprecate the plaintiff occasionally. Prima facie, her evidence tended to confirm the complaints of the plaintiff as referred to previously as to the effects of the accident upon him.
Mr Barry Slinger, orthopaedic surgeon, gave evidence for the plaintiff. He first saw the plaintiff on 22 December 1998. Ultimately, Mr Slinger prepared four medical reports:
20 January 1999 E1
30 November 1999 E2
19 September 2001 E3
When Mr Slinger saw the plaintiff on 22 December 1998, he was complaining of pain in around the neck, shoulders, arms and upper limbs and said he had difficulty driving with his arms maintained in an outstretched position. He also had pain in the mid‑back and numbness in the left foot. He had numbness and stiffness in the index finger of the right hand. When he examined the plaintiff, he moved without any obvious problems, however, there was a 15 degree restriction of movement in the cervical spine. Significantly, there was no wasting, tenderness or lack of movement in the shoulder or the right hand. He reported as to symptoms as to the index finger on both hands. This is significant because, ultimately, the plaintiff only complained of persisting symptoms in his right index finger. Mr Slinger, at that stage, felt that the plaintiff had a soft tissue injury to the cervical and thoracic spine, as well as both hands and some sympathetic dystrophy in both index fingers. He was unfit, he thought, to return to work as a truck driver or in other heavy manual work on a permanent basis. He did not feel that the cervical fusion would restrict the plaintiff's physical capacity in any significant way. He felt that the dystrophy in the plaintiff's index fingers could be associated with trauma, although the causation of such conditions was not well known. There was some pallor in the area of the index fingers and some wasting of the soft tissues around them. These were the only two things he could find which he felt would be consistent with a diagnosis of sympathetic dystrophy in those fingers. Mr Slinger saw the plaintiff about a year later on 25 November 1999 leading to his report of 30 November 1999 (Exhibit E2). The complaints by the plaintiff were more or less the same. Mr Slinger found the plaintiff to have "excellent generalised muscle tone" and that the plaintiff "moved without obvious problem". The cervical spine movements were more limited than before and there was some restriction in the right shoulder movements. Both index fingers were held in an extended position and again, there was atrophy, wasting and pallor, although tenderness was absent. Mr Slinger was of the view that there was a discrepancy between the plaintiff's stated inactivity and his excellent generalised muscle tone. He felt the index fingers and the symptoms related to those could indicate a regional pain syndrome or sympathetic dystrophy and the associated symptoms of depressed mood. He felt the plaintiff was unfit to return to his employment as a truck driver and that that would be permanent. He confirmed in evidence that any symptoms which arose as a result of the operation on the plaintiff's cervical spine should diminish with time as the operation healed. He confirmed that there was some hair loss in the index fingers which he had not seen before. Significantly, he found that the group strength in the plaintiff's hand was "excellent".
In cross‑examination, Mr Slinger confirmed that a number of his findings when he first saw the plaintiff were inconsistent with the plaintiff's alleged level of inactivity. He also said that the condition of the plaintiff's index finger was rare. He confirmed that several of the indices of sympathetic dystrophy in the index fingers were absent in his examination of the plaintiff. He agreed that it was possible that the condition of the index fingers could be either a psychological or deliberate presentation. He also agreed that the symptoms which were seen could be a result of disuse rather than injury itself. When he saw the plaintiff in 1999, he said that the condition of the plaintiff's hands would not have prevented him from truck driving. Significantly also, Mr Slinger confirmed that even though when he saw the plaintiff on the second occasion, there was reduced passive movement in his index fingers, there were still excellent generalised muscle tone - consistent with the plaintiff having been involved in some physical activity ie. that the plaintiff was "more active than perhaps he was admitting". It appeared from his evidence that although he felt the plaintiff's hand problems would not have stopped him truck driving on a full‑time basis, his other difficulties with his cervical and thoracic spines would have limited his ability to undertake truck driving and, in particular, on the occasional loading and unloading and changing heavy truck tyres. Mr Slinger saw the plaintiff on 12 September 2001, leading to his report of 19 September 2001. The plaintiff complained of continuing symptoms similar to those on previous occasions and his general findings were basically the same. Mr Slinger was of the view that the plaintiff's symptoms were consistent with the accident. The injuries generally sustained in the accident, Mr Slinger felt, restricted the plaintiff's inability to perform heavy activities to lift, bend, stand or sit for long periods and made him unfit to return to work as a truck driver or to other forms of manual work. He did not think the plaintiff's injuries to his hands restricted his ability to drive but would have affected his ability to perform heavy manual activities but not affect his ability to perform other activities including gripping, holding or grasping. He agreed in cross‑examination that he thought the plaintiff could do some light work in a variety of occupations, although he said that the plaintiff appeared to be far more disabled than he had been on prior occasions when he had seen him. As to the various occupations mentioned by Mr Slinger such as working in a delicatessen, it was Mr Slinger's view that the plaintiff would only be able to do that work part‑time on the basis that he would have difficulty standing and sitting for long periods.
Dr Stephen Proud is a consultant psychiatrist and saw the plaintiff on 19 September 2001. He reported to the plaintiff's solicitors in a report of 22 September 2001 (Exhibit G). Dr Proud's diagnosis was that the plaintiff had major depression in partial remission which he thought was directly related to the accident, the ongoing pain and disability from the accident, as well as the financial consequences of it. There was some reduction in his concentration, short term memory and mental processing speed. He felt that the psychiatric disability would be permanent for the foreseeable future. He agreed in cross‑examination that he had not given the plaintiff any neuropsychological or clinical tests and that his opinions were based on subjective reporting based on what the plaintiff had told him and his own observation. He felt that two years between psychiatric reviews was a long period and that regular monitoring of a patient's condition and reaction to different medications was important.
Mr Michael Lee is a neurosurgeon. He saw the plaintiff at the request of the plaintiff's solicitors on 13 and 21 September 2000. His report of 21 September 2000 was Exhibit H. As to the plaintiff's extended index fingers, Mr Lee did not have any explanation for that condition which he thought was unusual and not neurologically based. He had "never seen a median nerve pathology presented in such a way". He did not believe it to be an affectation which he confirmed in his evidence to mean that its appearance as presented shortly after the accident and has continued since that time. He thought that there was a possibility that the condition arose as a result of injury to the plaintiff's hands. He said that there was pallor in the plaintiff's fingers and atrophic changes which he thought were not entirely unexpected if the fingers had been held extended for the past 2‑1/2 years. He felt that the plaintiff's symptoms in his neck and vertebra, generally, were a reflection of a severe jarring injury. Mr Lee did not think that the plaintiff would be able to return to work as a truck driver, nor to undertake delicatessen work. He agreed, in his evidence, that it was possible that the plaintiff had a sympathetic dystrophy as described by Mr Slinger.
Mr Michael Halliday is an orthopaedic surgeon. He first saw the plaintiff on 21 January 1998 and last saw him on 13 September 2001. He produced four reports:
21 January 1998 Exhibit J1
21 January 1998 Exhibit J2
11 February 1998 Exhibit J3
13 September 2001 Exhibit J4
When Mr Halliday saw the plaintiff on 21 January 1998, he complained mainly of neck pain in the cervical region and pain and numbness in both hands. Mr Halliday felt that the plaintiff had a neuropraxia of both median nerves, probably resulting from the fall and bruising the median nerves in the region of the wrist.
Mr Halliday saw the plaintiff again on 29 January 1998 and reported that the plaintiff's symptoms in both hands was improving and that he had increased movements in all his fingers. His neck was also improving.
The same position was found to be the case when he saw the plaintiff on 11 February 1998 ie. up till that time, there had been a steady improvement in the plaintiff's symptoms in both hands and his neck. The hands generally improved, although when Mr Halliday saw the plaintiff on 24 April 1998, the plaintiff was unable to flex his index fingers. An MRI having been performed, the plaintiff was referred to Mr Paul Bannan for management of that.
When the plaintiff was reviewed by Mr Halliday on 13 September 2001, he examined his right and left hands and forearms and there was no significant wasting of the forearm musculature. The index fingers were held fully extended and there was significant wasting of the middle and distal phalanges on both sides. He felt that the residual problems in the plaintiff's right and left index fingers were related to the bilateral C6 radiculopathy secondary to the C5/C6 disc prolapse. He thought that this was related to the motor vehicle accident. He thought that the condition of the plaintiff's right and left index fingers would in fact cause the plaintiff difficulty working as a truck driver.
Mr Halliday felt that if the right and left index fingers became a major functional impairment to the use of his right and left hands, then amputation of the digits could be considered at the cost of $710 for the operation. He felt that the plaintiff could possibly be left with non‑functioning right and left index fingers.
As to the plaintiff's extended index fingers, Mr Halliday told me he had not seen a case like this before.
In his final report, Mr Halliday felt that the plaintiff may be able to perform certain light duties which did not involve heavy lifting or repetitive use of the right and left hands.
He confirmed in evidence that the plaintiff's fingers involved originally swelling and dysaesthesia ie. a burning type of pain which may lead to people not using their hands to avoid the pain symptoms.
In cross‑examination, Mr Halliday confirmed that nerve conduction studies showed that there was no damage to the plaintiff's median nerves in his wrist. He also confirmed that if there was no muscle wasting, that implied that it was being used - I confirm that the lack of muscle wasting had also been commented on by previous medical witnesses.
His opinion that the plaintiff's finger problems might be secondary to the C5/6 disc prolapse was based on a combination of the EMG study showing pressure on the C6 nerve and the plaintiff's complaints to him. He felt that if the plaintiff had the amputations foreshadowed by him, he would be able to return to clerical work and shop keeping work on a full‑time basis. He would also not have too many problems with driving. In re‑examination, Mr Halliday confirmed that the plaintiff had obvious signs of bruising to the median nerve, although there was improvement in that area. He confirmed also that disuse in itself would create problems in a joint with time, including the freezing of the joint.
Dr Shawn O'Connell is a psychiatrist who treated the patient from December 1998 to November 1999, seeing him on approximately 13 occasions. His report was dated 19 September 2001 (Exhibit L). He originally diagnosed the plaintiff with a major depressive disorder following upon the accident. By November 1999, the plaintiff was reporting to be feeling mentally a lot better. He did not see him after 9 November 1999, having discontinued the plaintiff's treatment, but the plaintiff agreed to remain on an anti‑depressant. He felt that although the plaintiff's condition varied, the last time he saw him, he felt the plaintiff would be able to work, from a psychiatric point of view. He confirmed in cross‑examination that he could not recall being advised by the plaintiff that during the time that he was treating him, his wife and he had separated. He confirmed that the treatment he gave to the plaintiff was, to a degree, successful. On the basis of the evidence of Dr O'Connell, it would appear to be the case that by the time he stopped seeing him, both he and the plaintiff were in agreement that the plaintiff no longer required any psychiatric treatment.
Dr Andrew Marsden, occupational physician, was called by the defendant. He reported to the defendant's solicitors in a report of 27 May 1999 (1A), 10 July 2000 (1B), 31 August 2001 (1C) and 24 September 2001 (1D). In his first report (Exhibit 1A), Dr Marsden, as with other medical practitioners, found the plaintiff to be muscular. Dr Marsden said that his examination of the plaintiff suggested some inconsistencies as to the plaintiff's range of movements in his neck and his lower back. Similarly, there was no evidence of small muscle wasting near his hands and there was normal forearm muscle development. He said that notwithstanding that the plaintiff held his index fingers rigid, there was some inconsistency in that during the examination. Dr Marsden felt that the inconsistency, his observations and the circumstances generally suggested that there was a "compensation driven background" to the plaintiff's presentation. He felt that in the long run, there was no reason why the plaintiff should not be able to return to truck operating or managing a delicatessen or some similar business. Dr Marsden saw the plaintiff again on 6 July 2000 and, in his report, Exhibit 1B, makes a number of comments as to the examination and the attitude of the plaintiff which led him to believe that the plaintiff was exaggerating his symptoms and had developed "a bizarre behavioural trait holding his index finger stiff". He felt that there was no traumatic damage which prevented the plaintiff from using his index fingers normally in a grip. He felt that the plaintiff was not as disabled as he was presenting and was of the view that the plaintiff should be able to return to managing a delicatessen or newsagency but felt that he would not be happy releasing him to work as a truck driver at that point. He felt that the plaintiff was fit to operate a car. As to Dr Marsden's consultation with the plaintiff on 31 August 2001, in his report Exhibit 1C, sets out his findings. His neck, he noticed, was almost unable to be moved in all planes, whereas before, the restriction was approximately half that amount. He had a good grip apart from using the index fingers. Dr Marsden's conclusions were the same as on previous occasions, and in particular, he did not think the plaintiff was significantly depressed. He felt that the plaintiff was not as incapacitated as he suggested and was sure that in the long term, with resolution of his claim, he would be able to return to all manner of working activity.
In cross‑examination, Dr Marsden confirmed his long experience in occupational medicine and the rehabilitation of injured people back to work. When it was put to Dr Marsden that he "went back deliberately" when preparing his report and deliberately put an adverse complexion on the history the plaintiff gave, Dr Marsden replied that he came to the view he did on the basis of the "style and way" the plaintiff presented. He agreed that the plaintiff had injured his wrist but could not see any reason why the plaintiff should have his index fingers stiff in the manner presented by him. He saw no symptoms such as pallor and otherwise which would confirm any signs of sympathetic dystrophy. He agreed that following a C5/6 disc injury, there would be surrounding and resulting symptoms. He made a number of other concessions as to the plaintiff's symptoms, including headaches.
At this point, having considered the evidence of Dr Marsden and his cross‑examination and demeanour in court, I am not prepared to find that there was any deliberate attempt by him to colour his medical reports on the plaintiff. He examined the plaintiff on a number of occasions and his examination technique and his findings were more or less consistent. He has given an opinion based on his examination, his experience and the history of the matter, which opinion, in my view, should be taken into account along with other opinions as to the plaintiff's true medical condition. There is no basis upon which his opinions should be discounted out of hand as the plaintiff's counsel was, effectively, suggesting.
Mr Paul Bannan, a neurosurgeon, gave evidence for the defendant. When he saw the patient in May 1998, he felt that the plaintiff had a C5/6 disc protrusion and also had numbness in his index fingers and a diastatic sensation in both hands. He recommended, ultimately, surgery upon the plaintiff's cervical spine. This took place and both C6 nerve roots were decompressed, the plaintiff noting no improvement in the numbness and swelling sensation in the right index finger. This was found to continue in September 1998. Mr Bannan was of the view then that the plaintiff had had a soft tissue whiplash to his neck and felt that the plaintiff was fit to go back to work. In September 1998, he was able to move his neck freely without any symptoms. At that time, it was the position that Mr Bannan felt that the plaintiff's hands would improve and that any difficulties would eventually disappear.
Mr Bannan last saw the plaintiff on 28 August 2001 and reported on the same date (Exhibit 2G). On that occasion, the plaintiff complained of widespread pain in the neck, thoracic and lumbar areas - no such complaints were made when he saw the plaintiff on the occasion prior to that. The complaints of the plaintiff did not fit in with any nerve root distribution or spinal distribution. The plaintiff's complaints, he said, appear to have worsened, but without any obvious cause. As to the plaintiff's index fingers, Mr Bannan had never seen the phenomena before and said that he had always been puzzled by this symptom. He said that, in his view, the appearance of the plaintiff's fingers was brought about by disuse of them rather than being accident caused. He was unable to say with any reliability the cause of the plaintiff's complaints. He assessed the loss of permanent use of the cervical spine in 15 per cent, however, he did not know whether the thoracic and lumbar spine problems as complained of by the plaintiff were directly attributable to the accident. He gave an opinion in his report that the plaintiff was "not fit for work from the time of the accident". He explained this in his evidence on the basis that when he saw the plaintiff in September 1998, he was hopeful because he appeared to be improving both in his neck and in his fingers, that he would return to work. He then confirmed that the plaintiff had told him in August 2001 that his condition generally had worsened, thus Mr Bannan gave his opinion. His opinion was based on the way in which he presented to him rather than objective clinical evidence. As to the plaintiff's fingers, he confirmed in cross‑examination that he did not believe that the plaintiff had a sympathetic reflex dystrophy and that he had signs suggesting that the appearance of the fingers could arise from lack of use. He confirmed that a limb which has not been used for long periods of time such as the plaintiff's fingers could become pale and lose their function - rather than this being caused by some underlying physiological problem.
Factual findings as to injuries and their sequelae
The plaintiff, I accept, jumped from the cab of the truck and struck the ground face down. There was a considerable force involved with the plaintiff's hands (and, obviously, his arms), taking some of the impact, and his face and body generally, the remainder. The fracture of the plaintiff's teeth confirm such force or impact. This impact then caused a "whiplash" effect which led to the disc protrusion at C5/6 and soft tissue strain effects in the plaintiff's cervical and dorsal spine. Therefore, the injuries alleged in par 9.1, par 9.4, par 9.5 and par 9.6 are found to have occurred. There was immediate injury to the plaintiff's left and right hands and I accept that the injuries as pleaded in par 9.2 and par 9.3 were received by the plaintiff in the accident.
As to the plaintiff's cervical spine, such an injury, I accept, caused the plaintiff considerable pain and associated symptoms including the "electrical" shock complained of by the plaintiff, until the operation performed by Mr Bannan. As a result of the operation, the latter symptoms were relieved by the operation, however, the various symptoms noted by the various medical practitioners continued thereafter. Mr Bannan, the treating neurosurgeon, was of the view that, so far as the neck injury was concerned, the plaintiff was fit to resume work by September 1998. Despite this, when Dr Bannan saw the plaintiff in August 2001, for the first time, the plaintiff complained to him of a variety of neck and back symptoms. Mr Bannan was unable to explain the change in the plaintiff's symptoms on any clinical and/or medical basis. This opinion of Mr Bannan must be given, in my view, considerable weight, in the light of his experience and the fact that he was the treating neurosurgeon in this matter and operated on the plaintiff's cervical spine. The same complaints were made to Mr Slinger in December 1998, however, there was some inconsistency in the plaintiff's clinical signs, as found by Mr Slinger. The same situation existed vis‑a‑vis Mr Slinger in November 1999. The "excellent" muscle tone enjoyed by the plaintiff from 1998 to 2000 and commented on by Mr Slinger and other medical practitioners is of some significance, in my view. Dr Marsden took the matter further in his opinion, and, in my view, there was some basis for the conclusions of Dr Marsden as to the plaintiff's physical condition in the light of the muscle tone enjoyed by the plaintiff.
Most of the medical practitioners felt that the plaintiff's complained of symptoms affected his ability to work in jobs requiring heavy lifting and truck driving if such latter involved work of a heavy nature.
The plaintiff, and his wife, spoke of continuing symptoms in the plaintiff's back and neck. Such evidence has already been noted. The determination as to the true extent of the plaintiff's symptoms and his neck and back is bound up with and depends on my overall conclusions as to the plaintiff's reliability and credibility. Without medical opinions, there would be no basis to doubt the veracity of the plaintiff's complaints regarding his neck and back. The true overall position, however, which in my view arises from the totality of the evidence, is that once the plaintiff's neck was operated on and with the passage of time, the plaintiff's neck and back have not been as disabling as the plaintiff has attempted to make out. As with other symptoms, in my view, the plaintiff has dwelt on his accident and its sequelae, some perceived rather than real, with the result that there has been, whether conscious or not, a considerable degree of exaggeration of the symptoms, both to the doctors and to myself in evidence. At the risk of it being suggested that I am placing too much emphasis on this matter, the regular and relatively consistent finding by the medical practitioners of good muscle tone in the plaintiff's body and limited effect on his general mobility suggests that the plaintiff is using his body, especially his neck and back, far more than he has been prepared to admit. In the light of the evidence, I find that up to the end of 1998, the plaintiff had considerable symptoms in his neck and back and that those continued to a lessening degree to the end of 1999. During 2000 and 2001, I accept that there were lessening but continuing symptoms in the plaintiff's neck and back but that these were increasingly intermittent. By the end of 2001, I am unable to find that such symptoms would have prevented the plaintiff from returning to his work as a truck driver, and, of course, in a delicatessen.
It follows that I find that although some of the disabilities alleged in par 13 continued to the end of 1999, these have begun to disappear in the past few years.
If the plaintiff feels that he has some difficulties as to his mobility and otherwise, it is, in my view, a matter of motivation. I feel that the finalisation of the plaintiff's case may well be the catalyst required to convince the plaintiff that the disabilities arising from the neck and back injuries have largely been overcome.
As to these disabilities, I accept that from the time of the motor vehicle accident to the end of 2001, there were lessening and more intermittent difficulties in those areas - I consider that a will to overcome the plaintiff's disabilities more quickly would have accelerated his recovery even more quickly. Looking at the disabilities alleged as "permanent and continuing" in par 13, I cannot accept that this description has been made out.
I turn now to the symptoms in the plaintiff's arms and hands.
Quite obviously, the plaintiff's arms and hands were injured in the accident - there may have been some connection between the symptoms in the hands and arms and neck injury. The operation by Mr Bannan, however, appears to have avoided the continuance of such connection.
The suggested inability of the plaintiff to bend (and use) his index fingers is a crucial matter, both as to the plaintiff's general allegations and his reliability and credibility. The majority of experienced medical practitioners considered that such complaints and appearance to be bizarre and without easily (or any) fully explained cause. Mr Slinger, I thought, was quite sympathetic to the plaintiff as to this matter, although even he had some reservations. Once again, the presence of excellent muscle tone in those areas would have a tendency to belie the plaintiff's complaints and appearance.
Having observed the plaintiff and considered the evidence, I conclude that there were injuries to the plaintiff's arms and hands, and some resultant trauma to his fingers and adjoining joints. For some reason from that time until now, the plaintiff has chosen to hold his index fingers in an extended position - the obvious effect of this is to give the fingers an appearance of pallor and some atrophic changes - non‑use of the index fingers must have such a result. I have a strong suspicion, although I am not able to find it as a fact, that the plaintiff initially held his fingers out and stiff to avoid using them because of pain and found it, at first, difficult to recommence using them, thereafter, he chose to keep the fingers in an extended position in order to convince people, especially his medical practitioners, that he had a genuine and significant disability. Having reviewed the evidence, and in the light of the medical evidence, I am not satisfied, therefore, that there is sufficient evidence to justify finding that the condition of the plaintiff's fingers is genuine in the sense of being a result of trauma caused by the motor vehicle accident. Once again, the finding that the plaintiff had good grip in his hands is significant.
The plaintiff has failed to satisfy me to the required degree of proof that the condition of his index fingers is accident‑caused, and thus, this alleged condition is not compensable by the defendant. It follows, therefore, that the various consequences alleged by the plaintiff to arise from the condition of his fingers are also not compensable by the defendant, including any limitation or diminution of the plaintiff's ability to work. Quite obviously, the pain and difficulties in the early stages after the accident with the plaintiff's arms and hands would have led to the creation of the disabilities alleged in the balance of par 13. However, it is my view that, so far as the plaintiff's hands are concerned, the immediate return to use of them, which I consider to be quite possible and consistent with the medical opinions, would not lead the plaintiff to now suffer the disabilities in the balance of par 13. Quite obviously, there will be occasional aches and pains to be suffered by the plaintiff in the use of his hands and arms, however, they, in my view, would not amount to any disability of a type that should lead to any compensation on the part of the defendant.
The allegation concerning "depression" (par 13(p)) is a good example of this. Notwithstanding the plaintiff's evidence to me, his treating psychiatrist Dr O'Connell originally diagnosed the plaintiff as suffering from a major depressive disorder after the accident but feels that by November 1999 the plaintiff was, from a psychological point of view, fit to return to work and discontinued his psychiatric treatment. The contrast, when Dr O'Connell saw the plaintiff on 19 September 2001, after hearing from the plaintiff and conducting neuropsychological or clinical tests, he thought the plaintiff still had major depression although in remission.
This history suggests to me that the various specialists seen by the plaintiff had to rely upon subjective reporting and were therefore very much dependant upon the reliability and accuracy of the plaintiff's reports as to his condition.
At the outset, I noted the plea of the defendant that the plaintiff's symptoms (if they existed) were affected by a motor vehicle accident in September 1998 - I am unable to find a sufficient basis in the evidence to support such plea. There may, however, have been some underlying degenerative disease in the plaintiff's spine, however, this did not, in my view, exist to such an extent as to limit or reduce any liability on the part of the defendant.
In the light of the above, and allowing for some intermittent periods over the next year or so for discomfort a proper award for pain and suffering and loss of amenities is $40,000.
As to the question of loss of earnings until now and loss of future earning capacity, although, as I have found, the plaintiff would have been able to return to his pre-accident employment by the end of 2001, some allowance should be made for the preparation by the plaintiff for his return to the workforce. The plaintiff has had experience in a variety of occupations and in my view will be able, given a reasonable period and with family support, to return to full time work within a period of approximately six months. I consider the plaintiff should be compensated for his inability to work and return to the workforce on a full time basis until 30 June 2002. Up to that time, and from the date of the accident the plaintiff should be considered to be unable to work on a full time or part time basis.
The question which arises is as to the rate at which such loss should be calculated.
As to the evidence relating to the plaintiff's earnings before the accident, Exhibit "A" (Plaintiff's Book of Financial Documents), a number of relevant documents including tax returns and pay shops. I concur with the submission on behalf of the plaintiff that a proper starting point is the sum of $27,400 which can be said to represent the taxable profit earned by the plaintiff in the six month period up to the accident. He was then, in effect, a novice and could reasonably have expected to increase such earnings considerably as that went on and as he became more experienced. Bearing in mind the evidence of the other truck drivers, especially Mr Lerede, the calculation of an estimated earning capacity of $58,400 gross per annum or $818 per week net is, in my view, correct; it is a proper basis for calculating the loss of earnings from, effectively, 1 July 1999.
Until that date, from the date of his accident, the figure of $715 per week net is the appropriate figure upon which to calculate the plaintiff's loss of earnings.
The figure of $818 per week net should thus be used to calculate the award under this head from 1 July 1999 to 30 June 2002.
The award from the accident until 30 June 1999 amounts to $55,055. For the period 1 July 1999 to 30 June 2002, a figure of $42,536 is awarded.
As to the plaintiff's claim for past gratuitous services, there is some basis for an allowance but the evidence generally does not establish the claim actually made. A global award of $2,500 is in my view adequate. I do not consider any award should be made for future gratuitous services. I make the same finding as to the claim for future psychiatric expenses in the light of the evidence already considered. There is also no basis for any allowance for future medication.
As to the question of special damages, as the transcript demonstrates, there was some confusion as to the defendant's view as to the amounts claimed and the defendant's liability therefore. In the end, a figure of $24,031.50 was agreed as having been established.
Although, as I have found, there was, in fact, a lessening of the plaintiff's symptoms from the accident (and, in particular, the neck operation) until the date of trial, the defendant, in my view, has not satisfied me that the total amount of special damages should not be allowed. The amount of $24,031.05 will thus be allowed.
Finally, the claim for future dental expenses should be considered. Counsel told me that the sum claimed, namely $22,500, was agreed (T311). There was no detail as to how this sum was made up. The plaintiff undoubtedly suffered damage to his teeth in the accident. There is no basis upon which this claim should not be allowed and thus the sum of $22,500 will be awarded under this head.
The plaintiff is thus awarded:
General damages $ 40,000.00
Loss of earnings $ 97,591.00
Gratuitous services $ 2,500.00
Future dental expenses $ 22,500.00
Special damages $ 24,031.50
$186,622.50
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