Lyszkowicz v Colin Earnshaw Homes Pty Ltd - [2001] WADC 194

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LYSZKOWICZ -v- COLIN EARNSHAW HOMES PTY LTD & ORS [2001] WADC 194

CORAM: NISBET DCJ

HEARD: 23 & 25-27 JULY 2001

DELIVERED : 21 AUGUST 2001

FILE NO/S: CIV 1196 of 1996

BETWEEN: CZESLAW ADAM LYSZKOWICZ
Plaintiff
AND
COLIN EARNSHAW HOMES PTY LTD
First Defendant
BOGDAN STAWARZ
Second Defendant (First Third Party)
MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD
Second Third Party

Catchwords:

Damages - Personal injuries - Assessment - Quantum - Causally independent events - Disentanglement of - Burden - Gratuitous services - Need for in hospital - Special damages - Hospital expenses - No invoices delivered to plaintiff until seven years after the event - Whether recoverable - Other assessment issues - Turns on own facts

Legislation:

Limitation Act 1935

Result:

Award of $57,698

Representation:

Counsel:

Plaintiff:        Mr B L Nugawela
First Defendant  :        Mr M H Zilko
Second Defendant (First Third Party)      :        Mr M H Zilko
Second Third Party  :        Mr M H Zilko

Solicitors:

Plaintiff:        Leonard Cohen & Co
First Defendant  :        Pynt McKay
Second Defendant (First Third Party)      :        Jackson McDonald
Second Third Party  :        D G Price & Co

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

Bresatz v Przibilla (1962) 108 CLR 541
Griffiths v Kerkemeyer (1977) 139 CLR 161
Purkess v Crittenden (1965) 114 CLR 164
Savini v Australian Terazzo & Concrete Co Pty Ltd [1959] VR 811
Van Gervan v Fenton (1992) 175 CLR 327
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248

Case(s) also cited:

Nil

NISBET DCJ:

Introduction

The plaintiff was born in Poland on 1 February 1948 and hence was aged 53 years at trial. After some schooling in Poland he enrolled in a motor vehicle mechanics course from which he qualified as a motor vehicle mechanic at 18 years of age. He thereafter undertook full time employment in Poland for eight hours a day, six days a week as a motor mechanic until he entered his National Service from which he returned to do the same job as he had previously. Subsequently he took other forms of employment until 1973 when he became a taxi driver, a vocation which he followed for some four years or so, after which he took up truck up driving for a poultry distributor. He then became a mechanic for a shipping company for two years or so until 1985 when he went to Germany as a motor vehicle mechanic. There he was employed for about two years until he was accepted as a migrant by Australia, coming here in 1986. At the time of his arrival in Australia the plaintiff was married with two children.
In Australia the plaintiff undertook a course in the English language for about one and a half months, attending every week day for two hours a day or so. Following completion of this course he obtained employment as a motor mechanic at a motor wrecking business where he was continuously employed until 1993, working 38 hours a week for an approximate take‑home pay of between $400 and $450 per week. During the course of this employment he describes sustaining an injury to his lower back whilst lifting a seat out of a vehicle. This was on 21 December 1992. He was dismissed from this employment in about April of the next year. He described the circumstances as arising from him having obtained an opinion from Dr Prendergast, his then general practitioner, that he needed some assistance with his work which, when he gave it to his employer, told him he was dismissed. He sought and obtained sickness benefits for the period following his dismissal until May of 1994. From then until October 1994 he received unemployment benefits which may by then have been described as a job search allowance. During that period he said that he did seek employment on light duties, looking for jobs as a painter or gatekeeper. Some of the positions he applied for were with a cabinet maker, some jobs he sought over the telephone, through the Commonwealth Employment Service and newspaper advertisements. He said that he told prospective employers about his injury. He then described the circumstances in which he sought employment with the second defendant. He said that he knew the second defendant and asked him for a job. The second defendant was and is a painting contractor who employed subcontractors. The second defendant asked him to come to a job that he was doing where he said he might have had employment for him. The work was at a construction site at the time of the near completion of four home units, the construction of which was being undertaken by the first defendant. Arriving at the scene of the work on 13 October 1994 the plaintiff saw the second defendant painting gutters with a spray gun from scaffolding. He said the second defendant invited him to meet him on the first floor and to have a look around at the work. When the plaintiff arrived at the first floor the second defendant had gone back downstairs to refill his spray gun, it having emptied as the plaintiff was on his way up. The plaintiff then went out onto a balcony to examine the work involved in spray painting the gutters and, standing on the balcony with his back to the edge of the balcony he then looked at the guttering work but lost his balance and fell through a gap in the protective scaffolding rail. He fell, he said, approximately three metres onto his back. He was taken to Sir Charles Gairdner Hospital where, he said, he spent one week and from whence he was sent to Shenton Park Rehabilitation Hospital where he spent three weeks. During this period he said he felt like he was paralysed and unable to walk, however he did resume walking and made what all the doctors described as a very good recovery.
I was informed by counsel for the defendants and third parties that each of the defendants and third parties admitted liability to the plaintiff for his injuries and accordingly the only issue to be determined was whether the plaintiff was entitled to any and if so what quantum of damages.

Plaintiff's history of pre‑existing medical conditions

The evidence fairly discloses that before the plaintiff's accident on 13 October 1994 he had suffered from occupational dermatitis for which he was being treated by his then general practitioner, Dr Prendergast, and in consequence of which he had been referred to at least one, possibly two, dermatologists. During the course of his evidence‑in‑chief the plaintiff did not however, give any particular history of the contraction and treatment of his dermatitis it only being elicited during the course of his cross‑examination and re‑examination. In so saying I acknowledge that during the course of the plaintiff's opening of his case a bundle of medical reports was tendered into evidence and received as Exhibit 1 in the proceedings, and in those certificates there was mention of the dermatitis. During the course of his evidence in this regard the plaintiff evidenced some confusion as to the extent of his dermatitis saying sometimes that it was in both of his hands (T35, 44 and 76) and on another that it was only in one of his hands (T44). Even so, the plaintiff did concede (T44) that his dermatitis was such that he could not do any dirty or heavy work.
Next the plaintiff described having epicondylitis (occasionally described as "tennis elbow") which he said, generally speaking, only arose from the use of the "rattle gun" at his place of employment. By this I understood him to mean the compressed air device regularly used in mechanics' workshops to tighten and loosen nuts. Again, the plaintiff seemed uncertain as to the precise nature of his epicondylitis. He thought at one time that it was in both elbows (T42) but at another that it was confined to his right elbow (T47).
The plaintiff further described sustaining an injury to his lower back which put him off work, as mentioned, on 21 December 1992. In evidence he described the chronological sequence of events in relation to this matter with a little uncertainty, however he freely conceded that he was injured in December 1992 and described it in the manner I have already set out. He apparently used some annual leave and sick leave in consequence of this low back injury, but had returned to work and he continued working until April of 1993 when he again reported to Dr Prendergast that he was experiencing low back pain. In consequence of this Dr Prendergast recommended that he continue his work with assistance. It wasn't clear from the plaintiff's history but it seems that he may have been off work for about a week and, returning to work with a further certificate from Dr Prendergast, was dismissed from his employment on Saturday, 1 May 1993. Whilst this history generally accords with the evidence of the plaintiff I have taken it in some measure, particularly as to dates, from the report of Dr Prendergast dated 27 July 1993 at p 46 of Exhibit 1. There are several significant features of the plaintiff's low back symptoms which I will address later in this judgment. Suffice it to say at this stage, however, that the plaintiff conceded that Dr Prendergast declared him unfit for work on 3 May 1993 and that he never returned to work thereafter. He agreed that he had chronic persistent low back pain by April of 1994 (T43) and, additionally, indicated that it had been suggested that he wear a corset (T50). One important feature of the plaintiff's low back symptoms was that he had pain radiating into his right leg. It was put to him that in fact he had pain and numbness radiating into both his lower limbs but he could not recall it, could not recall telling his doctors this, and said that he thought it was only in his right leg.
Accordingly, prior to his accident on 13 October 1994, the plaintiff had been certified unfit for work to varying degrees, that is to say to the extent that he was wholly incapacitated on occasion and on other occasions partially incapacitated, in respect of three work related conditions, namely dermatitis, epicondylitis and low back pain.
The plaintiff said that these symptoms did not preclude him from looking for employment. Having described his receipt of what he thought was a sickness benefit followed by a job search allowance from the time of his dismissal in May of 1993 through until his accident on 13 October 1994, he said that he was "just looking for some light duty jobs because I got some problems, a little bit, with my back." He said that he looked for jobs as a painter, a gatekeeper (or something) and that he looked for these jobs through the newspapers, over the telephone, with the Commonwealth Employment Service and the like. And whilst it is true that the plaintiff suffered a significant injury to his back on 13 October 1994 whilst investigating the prospect of some employment with the second defendant, the pre‑accident history he gave in evidence is somewhat at odds with the history of his applications for social security benefits.

Plaintiff's applications for Social Security benefits

Whilst the plaintiff recited a history of applying for and obtaining sickness benefits and unemployment benefits during the course of his evidence‑in‑chief, the extent and nature of those applications was not fully revealed until his cross‑examination. During the course of his cross‑examination (particularly between T46 ‑ 58) the plaintiff admitted that after the Department of Social Security had cancelled his sickness benefit he appealed against that decision. Exhibit D1 is an undated letter seeking a review of the decision to cancel his sickness benefits. It was stamped as received in the Department on 5 May 1994. After complaining about the unprofessional conduct of the Commonwealth Medical Officer who examined him, the plaintiff went on in his letter to say:
"Not only have I problems with my back but I also have a very bad case of dermatitis which stops me from doing the simplest chores such as washing the dishes or shampooing my hair. I also have an elbow problem. Dr Prendergast as well as Dr Robinson based their opinions and "unfit for work" certificates on the constant medical examinations and I find it inappropriate that another doctor disregards this totally."
The plaintiff agreed that his application for a review was unsuccessful and he then entered an appeal against the decision to stop his sickness benefits. A copy of his notice of appeal came in is as Exhibit D2 and in this document, signed by the plaintiff, the ground of his appeal was stated as follows:
"I believe that decision is incorrect because I not only have a back problem but also severe case of dermatisis, (sic) and I can not do work that involves dealing with liquids, chemicals or dirt. I do not believe that I can work 8 hours a week."
That was signed by the plaintiff, it appears, on or about 30 May 1994. Whilst these documents appear to have been written on behalf of the plaintiff by his daughter, the plaintiff acknowledged the documents and the truth of their content.
Next it appears that the plaintiff applied for a disability support pension which was refused. He appealed against the refusal and a copy of his notice of appeal came into evidence as Exhibit 3. It was signed by him on 5 October 1994 and whilst it too was written on his behalf by his daughter he acknowledged the document as his and its contents as being true. The grounds upon which he sought to appeal against the refusal of a disability support pension read as follows:
"In my application hasn't been considered my back injury. This is of spinal degenerative disease on which I don't receive any treatments, because this is untreatable. As a result I have got a constant pain in my lower back and numbness in my right leg. There hasn't been also considered in the disability procentage the duodenal ulcer, which makes difficult for the doctors to treat my other problems. The medicaments aggravate the ulcer." (sic)
The appeal to the Social Security Appeal Tribunal was successful and although the plaintiff argued that this decision included information which he had provided to the Tribunal about the injury he sustained on 13 October 1994, and that the Tribunal allowed the appeal after giving consideration to the effect of that injury, this is not the case. The decision of the Tribunal published 15 February 1994 (Exhibit D4) makes this plain:
"Although [the plaintiff] informed the Tribunal of his more recent accident and further injury to his lower back which occurred in October 1994, his appeal actually related to a decision of the Department made prior to this injury. No corroborating evidence was supplied to the Tribunal at the hearing and the Tribunal decided that it could not include consideration of this second accident in the hearing of [the plaintiff's] current appeal."
Also instructive is the Tribunal's recitation of the plaintiff's case before it:
"[The plaintiff] told the Tribunal that his back caused him the biggest problem. He stated that he injured his back at work in December 1992 and despite having a short period of time off work, he had to return to work in order to earn money. He said that he was sacked from that job as a mechanic in April 1993 and has been unable to work since then. [The plaintiff] said that he has constant pain in his lower back and takes pain killers infrequently. He said that he has been advised to swim a lot and he swam daily in a friend's swimming pool. The Tribunal was told that he could only drive his car for about 30 minutes before experiencing significant pain and he found the bumping effect of driving in a car would hurt his back. He stated that he could not bend down or lift weights although he was able to lift light shopping. Mrs Lyszkowicz told the Tribunal that she had taught him breathing techniques to use when in severe pain. [The plaintiff] said that his back pain interfered with his sleep and he would wake frequently during the night. He stated that in the morning his back was often sore and he had to roll sideways to get out of bed. The Tribunal was told that he felt unable to do anything around the house or garden."
The contemporaneous records suggest that the plaintiff was incapacitated to a significant degree before his injury on 13 October 1994 and certainly to an extent greater than he suggested in evidence.
Much the same assessment can be made of Mrs Lyszkowicz's evidence of her husband's physical condition before 13 October 1994. Clearly she supported her husband's appeal against the refusal to assess him as qualifying for a disability support pension and, as the exhibits disclose, she herself appealed against the rejection of her claim for a wife's pension in respect of her husband's disability. In her evidence before me, however, she claimed that her husband never complained about his dermatitis and that he only had bad back pain once or twice a year and accordingly, insofar as her evidence tended to suggest that the plaintiff was quite fit before 13 October 1994, I think it is unreliable.
Finally, the true extent of the plaintiff's incapacity before October 1994 may also be seen from the affidavit he filed in support of his workers' compensation claim (Exhibit D5)

Medical opinions of plaintiff's pre‑existing medical conditions

Of the unnecessarily large number of medical practitioners called to give evidence in this case, Dr Prendergast was the only one who had the advantage of seeing and treating the plaintiff both before and after the accident of 13 October 1994. I thought all of the medical practitioners who gave evidence were accurate and reliable historians, recording faithfully what they were told by the plaintiff (and, importantly, acknowledging what they had not been told). Additionally, I thought all of the medical practitioners strove for balance and fairness in their respective assessments of the plaintiff within the limits of the respective opportunities each had for observation and examination of him.
Dr Prendergast described the plaintiff's dermatitis as being "very nasty" and at times quite disfiguring. Notwithstanding the plaintiff's claims that the use of gloves and cream would enable him to continue working, Dr Prendergast said that gloves would not assist the plaintiff because his hands would sweat in them and the perspiration would exacerbate the dermatitis. He described the dermatitis as penetrating below the first and second layers of the skin exposing fleshy tissue describing it as looking as though the plaintiff had sliced some of the tissues off his hand. Cross‑examined about some of the occupations which a skin specialist, Dr Delaney, thought the plaintiff capable of performing notwithstanding his dermatitis, Dr Prendergast thought the list unrealistic and being a list compiled by a dermatologist addressing the issue generally without specific regard to the plaintiff's age, education, qualifications, training and experience. They were in effect just a list of relatively clean jobs which anyone could perform if they had severe occupational dermatitis of the hands.
With regard to the plaintiff's epicondylitis, Dr Prendergast noted that it was in both elbows. Further, his report of 27 July 1993 previously referred to is a contemporaneous record of his diagnosis of bilateral epicondylitis and, additionally, that this was work related and was the subject of review on this basis by Dr Prendergast on 23 February 1993 and 2 March 1993.
With regard to the plaintiff's low back injury, Dr Prendergast noted the plaintiff as having sustained a right sided lumbosacral injury at L4/5 level as a result of a flexion and rotation injury for which he required treatment. By a medical certificate dated 2 January 1993 he certified the plaintiff fit for work to continue with medication as required and with advice that he swim regularly. By a further certificate dated 20 April 1993 Dr Prendergast certified that the plaintiff was still suffering from the effects of the lifting and rotational injury he sustained on 21 December 1992 to the lumbar spine and also noted that it was "a probable L5/S1 disc injury". He thought the plaintiff was fit for work but requiring treatment and he certified that the plaintiff:
"… must have an assistant at work (I have suggested this before). Will need to see a rehabilitation specialist. Continue with work and treatment."

Then, by a certificate which I think is dated 8 May 1993 (it is unclear) Dr Prendergast certified the plaintiff unfit from 3 May 1993 to 3 July 1993 occasioned by the plaintiff's injury at work on 21 December 1992 to his lumbosacral spine. In that certificate Dr Prendergast noted:
"I had previously arranged for this patient to be seen by the rehabilitation specialist Dr Robinson to see him and this appointment was made on 20 April 1993. After attending Dr Robinson (?) on 7.5.93 he was in no doubt that patient is presently (?) unfit for work and I have certified him unfit for work from the above dates. (?) cat scan does show disc pathology."
(The certificate is unclear, hence the (?). The bundle of workers' compensation certificates came into evidence as Exhibit D7.)
Dr Prendergast further certified the plaintiff unfit by reason of his low back injury for a period of three months from 5 July 1993 to 5 October 1993 by certificate dated 5 July 1993. He was further certified unfit for a period of three months from 1 October 1993 to 1 January 1994 by Dr Prendergast signing a certificate to that effect on 1 October 1993. As Exhibit D7 further discloses, Dr Prendergast certified the plaintiff unfit for work by reason of his low back injury until at least July of 1994 and perhaps as long as September 1994. I say "perhaps" because the certificate dated 3 March 1994 indicates that in Dr Prendergast's opinion the plaintiff would be unfit for a further "three to six months", the last certificate forming part of Exhibit D7, that dated 18 May 1994, certifying the plaintiff unfit to 18 July 1994. As mentioned, all of these certificates of unfitness for work issued by Dr Prendergast were in respect of the plaintiff's low back pain, except the last which added as a cause of unfitness for work: "Irritant occupational dermatitis." That certificate additionally said: "His back pain and occupational dermatitis are ongoing and he will need to seek alternative forms of work and rehabilitation." Indicating that at the very least, in Dr Prendergast's then opinion, the plaintiff was not excluded from seeking work of all types.
Both in his evidence and in his contemporaneous reports Dr Prendergast was of the opinion that before the plaintiff's accident in 1994 he had a disability which, in terms of assessment for social security purposes, he put at 16 per cent. This was largely by reason of the plaintiff's chronic degenerative condition.
Dr A R Robinson is (now) a retired rehabilitation specialist to whom the plaintiff had been referred by Dr Prendergast. In his report of 7 May 1993 Dr Robinson noted the plaintiff's presentation to him following his dismissal from his employment "last week, on his presentation of your certificates stating that he required assistance at work." Dr Robinson noted that the plaintiff's symptoms from his low back injury had persisted and further that: "… More recently he developed some numbness down the back of both thighs." (My emphasis.)
In Dr Robinson's opinion as then expressed he thought the plaintiff unfit for the full and unrestricted duties of a motor mechanic and that he was likely to remain so indefinitely. He noted other difficulties standing in the way of the plaintiff's opportunities for other employment and went on to describe the plaintiff's dermatitis and what he described as "bilateral epicondylitis" but in respect of which he said in evidence he thought was an error because his clinical notes only referred to "several months pain in left elbow".
Dr Robinson continued to review the plaintiff and was waiting for approval to submit the plaintiff to a full occupational rehabilitation programme the cost of which apparently would not be met by the plaintiff's then workers' compensation insurer. He remained of the opinion that the plaintiff was unfit for work in his pre‑accident employment as a motor wrecker "or any work of a similar physical requirement".
Dr Robinson continued to be of this opinion through 1993 and 1994 as the balance of his reports in Exhibit 1 demonstrate. He observed during the course of his examinations of the plaintiff a significant restriction of mobility in all planes of his low back which were accompanied by pain and noted too that the plaintiff's dermatitis was still troubling him.
Professor Harper saw the plaintiff only once. This was in January this year and insofar as his opinion was directed to the plaintiff's medical condition prior to October 1994, this was derived from the reports of other medical practitioners who had examined the plaintiff before that time. In Professor Harper's opinion a combination of factors including the plaintiff's low back injury and other conditions, together with his social history, meant that the plaintiff was not a candidate for obtaining work on the open job market prior to October 1994.
Mr Nick Batalin is an orthopaedic surgeon who likewise only saw the plaintiff once, in May of 1999. He too relied on the reports of other medical practitioners for his assessment of the plaintiff's condition before October of 1994. His review of the early medical reports and x‑rays were such that he came to the opinion that the plaintiff was better when he saw him than he was in May 1993 when seen by Dr Robinson. He disagreed with the suggestions put to him by the plaintiff's counsel that the plaintiff's pre‑October 1994 injuries were really soft tissue injuries of a minor type which would resolve within two ‑ four years. In his opinion, before October 1994 the plaintiff had a serious degenerative condition of the lower spine.
The plaintiff was also seen on one occasion, in June of 1999, by Dr Kim Fong, a rehabilitation specialist. Dr Fong testified that the plaintiff told him that at the time of his accident in October of 1994, the injury he had previously sustained in 1992 was not a substantial problem for him. Dr Fong pointed out, however, that he had not been asked to assess the plaintiff's disability with a view to attempting to determine which of his current symptoms were attributable to his 1992 injury or his 1994 injury or indeed to pre‑existing causes. Whilst generally, in common with other medical practitioners, Dr Fong said that he has to accept a patient's history as given to him by the patient he would have been given cause to investigate the plaintiff's stated history further if he had learned of what the plaintiff had told the Social Security Appeals Tribunal about his symptoms prior to October 1994. Additionally, Dr Fong who has considerable experience in these matters as he is one of the staff specialists at the Royal Perth Rehabilitation Hospital, said that if the plaintiff had qualified for a disability support pension by reason of a permanent disability he would have thought that he had a permanent disability because the conditions attaching to the grant of such a benefit were stringent then and more stringent now.
Mr E Trinajstic is an orthopaedic surgeon who likewise only saw the plaintiff on one occasion in about October of 1998. Whilst Mr Trinajstic stated in his opinion of 12 October 1998 (Exhibit 1 p 70) that before the plaintiff's injury in October 1994 he would have rated his disability as being in the order of 5 per cent he acknowledged that he hadn't obtained a full history from the plaintiff who told him nothing about his appeals to the Social Security Appeals Tribunal or the claims he had made about his symptomatology during the course of those appeals. In the end result, Mr Trinajstic said that if Dr Robinson's diagnosis was correct in respect of the plaintiff's condition before October of 1994 then he would have to say that the plaintiff was in about the same condition as Dr Robinson noted when he, Mr Trinajstic, saw the plaintiff in October 1998.
The plaintiff was also seen by Dr Andrew Marsden, a specialist in occupational medicine, who likewise only saw the plaintiff once, in April of 1999. His examination of the pre‑October 1994 medical reports suggested that the plaintiff was in much the same position when he saw him as he was before October of 1994.
Finally, the plaintiff was also seen once by Mr F G Bell, now a retired orthopaedic surgeon. Mr Bell saw the plaintiff in September of 1997. Mr Bell thought the plaintiff had had a significant incapacity for employment before October 1994 because of his 1992 accident.
As can be seen the parties thought it necessary to call seven specialist medical practitioners and one general practitioner to give evidence in this case. Order 36A r 5 contemplates a restriction on the number of medical witnesses called in trials for damages for personal injuries and, in unremarkable cases like this (which I distinguish from, for example, birth defect cases) it is difficult to see the need for so many medical witnesses and, as I have remarked elsewhere, the court must begin to look more closely at its powers under O 36A r 5 to limit the number of medical witnesses to be called in a trial. In this case I would have thought the propositions which each side sought to advance could have been canvassed, at the most, by two medical practitioners for each side.

Plaintiff's injuries from accident on 13 October 1994

I have already briefly mentioned the plaintiff's account of his injuries sustained on 13 October 1994. The plaintiff described in a little more detail his rehabilitation at the Royal Perth Rehabilitation Hospital in Shenton Park. He described being given the use of specialist equipment, a special bed and other equipment to help him wash and for about a month, during which time he felt that he was paralysed, he wasn't allowed to walk but then was encouraged to commence walking. Before he was discharged from the hospital he was taken to a swimming pool to walk in the pool where he was able to do so more easily, and it appears that he was transferred into a special bed which had some exercise equipment attached to it and he said:
"[A]nd the first time I just laid down back to the bed because my leg is not working but after, I try every day in the hospital and was just, you know, really good and I'm slowly walk around with special equipment from the hospital."
When he was discharged from hospital there was no particular special treatment except painkillers and supervisory review by the specialists at the hospital. He said that he was reviewed every one or two months for some three years.
All of the medical practitioners who have seen the plaintiff since his accident of October 1994 agree that he suffered a serious injury variously described as "a burst crush fracture to the L1 vertebral body, with spinal canal narrowing, and a fracture to the left laminar arch at this level" (Dr Marsden Exhibit 1 p 33); "… a burst compression fracture of the body of L1. There was a moderately large posterior fragment protruding into the spinal canal. A CT scan of the lumbar spine (24.10.94) reports in addition the above, (sic) a slightly displaced fracture through the L1 laminar and superior articular process but without facet joint subluxation. The sagittal diameter of the spinal canal was narrowed to approximately 8mm, compared with 17mm above and below, giving a narrowing of over 50%." (Professor Harper Exhibit 1 p 24); … "a moderately significant spinal injury with burst compression fracture of L1 vertebra. This included compromise of the spinal canal at that level. I estimate that the original compromise was around 60% but follow‑up CT scan show further healing of the fracture and less compromise more around the 40% mark." (sic) (Mr Batalin Exhibit 1 p 4.)
Other medical opinion was to the same effect.
It is as well to record that Dr Marsden indicated the severity of the plaintiff's injury by advising that in his opinion the plaintiff was lucky not to have been rendered paraplegic by his fall. Other opinion was to the same effect.
Most of the medical practitioners however, were also agreed that the plaintiff made a good recovery from this injury. A number of practitioners noted that fractures of this type are very bad, have serious ramifications, look very bad but more often than not with good conservative treatment go on to make very good recovery. Where fusion occurs in the bone fragments such that there is a collapsing of the spinal vertebrae, a reduction in its height so that the shape of the reduction is that of a wedge (lending itself to the description "wedge fracture") the bony callus formation serves as a natural fusion giving the patient a good result. The real question here of course is: To what degree are the plaintiff's existing disabilities attributable to causally independent events?
In my opinion the witness best placed to make an observation of the plaintiff's medical condition before and after 13 October 1994 is undoubtedly his general practitioner, Dr Prendergast. As already mentioned Dr Prendergast struck me as being both reliable and accurate. He obviously managed the plaintiff's medical conditions with sympathy, care and competence. He testified that he saw the plaintiff in about August or September of 1997. At that time he thought the plaintiff's functional capacity was better than it had been in the previous 12 months, noting that his mobility and medication had been unchanged (T167). In his opinion the plaintiff's position in August/September 1997 was about the same as it was before the October 1994 accident. He said (T156) that the plaintiff's subjective clinical capacity was about the same and further, "I didn't feel he was much different from his first injury".
Of the medical practitioners who had not had Dr Prendergast's advantage of seeing the plaintiff before October of 1994 a number were of the opinion that provided that the observations of Dr Robinson were found by me to be both accurate and reliable (which they obviously are) then they too would have thought that there was not a lot of difference in the plaintiff's presentation before October of 1994 and afterwards, when they saw him. Evidence to this effect came from Professor Harper (T191 ‑ 194); Mr Batalin (T231); Mr Trinajstic (T266) and Dr Marsden (T271, 273).
In my opinion, in reliance upon the opinions of Dr Prendergast, Professor Harper, Mr Batalin, Mr Trinajstic and Dr Marsden the weight of medical opinion is such that it suggests that the plaintiff is in no worse a position now than he was before the accident in October of 1994. In this regard, however, it should be noted that a couple of the opinions of the medical practitioners stand out. Dr Prendergast said that he thought that there was an additional degree of unemployability in the plaintiff for about a year after the 1994 accident. He emphatically disagreed with the suggestion put to him by the plaintiff's counsel that before then the plaintiff had recovered to the extent where he would have been able to work as a spray painter for about 30 hours a week saying that the plaintiff's dermatitis alone would have prevented him from following that occupation (T156 ‑ 158). Professor Harper put the issue a little differently. He thought that the plaintiff was not a candidate for obtaining a job on the open job market before October 1994 and that afterwards he was still not a candidate for obtaining a job on the open job market. In attempting to summarise the professor's opinion in this regard I put to him that it appeared to me that what he was saying was that the plaintiff had gone from having a bare chance of getting work before October 1994 to having no chance afterwards. Professor Harper agreed with this summary of his opinion.

Legal onus

The question of who bears the onus of disentangling the causally related injuries from those causally independent of the injury sued upon is answered by that line of authority which travels through Savini v Australian Terazzo & Concrete Co Pty Ltd [1959] VR 811; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; and Western Australia v Watson [1990] WAR 248 especially at 310 ‑ 313. In Purkiss v Crittenden the principle was explained at 168:
"… Where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that the incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre‑existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre‑existing condition, rests on the defendant."
This evidence, of course, may be obtained in the plaintiff's case (Western Australia v Watson at 312).
Clearly the plaintiff has established a prima facie case of damage arising out of the defendants' negligence. The defendants have both pleaded and alleged during the course of the trial that the plaintiff's present symptomatology and incapacity for employment have been materially contributed to by causally independent events and accordingly they carry the burden of disentangling them. This they did by cross‑examining the plaintiff and his medical witnesses and by calling medical evidence of their own. The defendants have clearly demonstrated that the plaintiff had serious pre‑existing medical conditions in that he had a chronic degenerative condition of the lower back, serious occupational dermatitis and work related epicondylitis. The defendants have further discharged the onus upon them by demonstrating that from at least August/September of 1997 when the plaintiff was last seen by Dr Prendergast, the plaintiff's condition was no worse in consequence of the injury he sustained on 13 October 1994 than it had been prior to that date. It seems to me further that the defendants have also established that insofar as the plaintiff's incapacity for employment is concerned, the injury of 13 October 1994 had the effect of reducing the potential perimeter of employment available to the plaintiff only marginally such that it could be said as it was (in effect) by Professor Harper that he went from a man having very little prospect of employment to one having no prospect of employment.

Assessment of damages

Clearly the plaintiff sustained a significant debilitating injury which for a time held him in terrorem of becoming a paraplegic. It seems that for at least a month he was unable to move his legs and one can only imagine the emotional strain this put on him. Without being particularly histrionic in his presentation in the witness box, the plaintiff was still clearly distressed by his recollection of his accident. The effect upon his home life was dramatic. Ultimately he and his wife separated although the precise reason for this was a little difficult of comprehension. The wife described the plaintiff as having become very angry and perhaps, somewhat embittered and this placed an intolerable burden on her, it seems, precipitating the separation.
The plaintiff's convalescence and rehabilitation were long and slow but in the end result, as the medical evidence discloses, he made a good recovery and appears to have little in the way of continuing symptoms which may be directly attributable to this injury. This is because the balance of medical opinion favours the view that the plaintiff's existing symptoms in respect of pain in his legs, low back pain and referred pain are all the sequelae of his 1992 low back injury rather than the fall in October of 1994.
I have come to the view that notwithstanding that the plaintiff made a good recovery from his injuries he did sustain a serious, near catastrophic injury to his spine in respect of which an award for pain, suffering and loss of amenities should be made in the sum of $50,000.
The plaintiff made a significant claim for past and future loss of earning capacity. In this regard the plaintiff's claim is faced with a number of difficulties which, in my opinion, are insurmountable for him. The first of these is that on two occasions he appealed against a refusal by the Department of Social Security to grant him a continuation of his sickness and accident benefits, and, subsequently, a disability support pension, and in the documents filed with his appeal he was clearly maintaining that he had an incapacity for employment which was supported by relevant medical evidence. Whilst it is true that he sustained his injury when looking at the prospect of employment as a spray painter the availability of that work for a man in his condition, particularly with his occupational dermatitis was very limited. The plaintiff strenuously maintained that Dr Robinson had offered the opinion that the plaintiff could have worked for 30 hours a week holding a light spray gun. True it is that when this was put to him Dr Robinson seemed to agree but the distinct impression I got from Dr Robinson when he answered that question and went on to say that the plaintiff's capacity would not have been known without a full work trial assessment, was that truly his answer is to be read down as being subject to a full work trial proving the capacity. The plaintiff attempted to persuade me by other evidence that he was actively looking for employment in the period up to October 1994, that is to say through the evidence of himself saying he was looking for employment, his wife that she saw her husband looking for employment and the fact that he at one time spray painted a small cabinet for himself. In my opinion none of these are persuasive. The fact that the plaintiff was looking for employment does not mean that he had any capacity for employment. The fact of the matter is that if the plaintiff's searches for employment were as extensive as he and his wife would have me believe, they all came to nought. This is quite unsurprising. His only qualification was as a motor mechanic and the weight of medical evidence was that he was unable to work as a motor mechanic because of his 1992 injury, his occupational dermatitis and his epicondylitis. Add to that his limited language skills, his age and all of the other attendant social factors then pertaining to his condition, it is little wonder that he could not find work and that the only two instances of him being able to demonstrate a proven inquiry after work came from people within his Polish community which, as a prospective employer base from which he could draw, would be relatively small.

In the end result I am quite unpersuaded that the plaintiff has lost any work capacity in consequence of the injuries he sustained on 13 October 1994. Nevertheless the medical evidence does disclose that he lost what remaining chance he had of obtaining employment and in these circumstances he is entitled to be compensated for the loss of the chance. For all the reasons I have outlined I think that the award in this regard must be modest and I allow $5,000 under this head.
Next the plaintiff claimed significant damages for the gratuitous services he said were rendered to him by his wife both when he was in hospital and when he came home. He further seeks an allowance for gratuitous services in the future although in this regard he actually claims that they will not be gratuitous but paid for in the way of assistance around the home. With regard to the claim for the services rendered by the plaintiff's wife in travelling to and from the hospital for a period of one month, it was not made clear whether this was a claim for the expense of visits by the wife or whether it was a claim for gratuitous services allegedly rendered whilst the plaintiff was in hospital. If it was the latter then there was no evidence that the plaintiff was not adequately cared for by the hospital staff and there was no medical evidence by the plaintiff's treating physicians that additional services were required to be rendered to the plaintiff while he was in hospital. If the claim was put on the basis that the wife's visits were reasonably necessary for alleviation of the plaintiff's condition as per Bresatz v Przibilla (1962) 108 CLR 541, there was no evidence to support this head of claim. Ordinarily what is required in the coma cases and in cases of child victims is the evidence of a treating physician that the ministrations of the family were thought medically desirable to assist in the plaintiff's recovery. There was none of that evidence here.
The claim for gratuitous services following the plaintiff's discharge from hospital until they separated in 1999 is a claim of a different type clearly coming within the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327. Based on the evidence of Dr Prendergast however, that the plaintiff had an element of unemployability for about 12 months after his 1994 accident before he recovered to the extent that he was beforehand, the allowance should be limited to this period. Doubtless the plaintiff's wife rendered additional services to him but nowhere near the extent that she and he each maintained. As sometimes happens in these cases in my opinion the plaintiff and his wife found it difficult to distinguish between those tasks which Mrs Lyszkowicz would have performed for him in the ordinary course of daily life with its attendant ups and downs and periods of ill‑health arising from his condition before October 1994, and those different things peculiar to the injury sustained in October 1994. In this regard, in my opinion the evidence discloses a need for gratuitous services rendered by Mrs Lyszkowicz to her husband on average for two hours per week for 52 weeks, a total of 104 hours. The rate chosen by the plaintiff is $12 an hour which seems to me to accord with the evidence of relevant awards at the time hence resulting in an allowance under this head of claim of $1,248.
Before leaving this head of claim I should acknowledge the evidence that the plaintiff engaged the services of a part‑time ironing and cleaning lady and had done for some little time at an approximate cost of about $10 a week, averaged out. In my opinion the evidence does not disclose the need for these services as having arisen from, and solely by reference to, or even partly by reference to, the injuries the plaintiff sustained on 13 October 1994.
The plaintiff also made a claim for special damages by the way of Royal Perth Hospital and Sir Charles Gairdner Hospital accounts which came into evidence as Exhibits 7 and 8. As is disclosed on their face these accounts were not rendered to the plaintiff until well after the limitation period had expired, and then only on the request of his solicitors. Clearly if the hospital has decided to institute proceedings for the recovery of these sums the plaintiff would be obliged in mitigation of his loss to plead the Limitations Act and such a plea would have been an absolute bar to recovery and he would not have sustained any loss. The plaintiff's claim for special damages in respect of these two accounts will be refused.
With regard to the future, the plaintiff claimed the cost of future medical expenses however the evidence in respect of the need for the same was scant. Basically the only evidence of the need for future services came from Mr Batalin who indicated that the plaintiff would need to see a specialist once every three to five years. Having regard to the plaintiff's age and the fact that pre‑existing conditions would necessitate his review by a specialist from time to time in any event, a global allowance under this head of a modest amount is all that is required to fairly compensate the plaintiff in this regard, and I allow the sum of $1,000.
The plaintiff made a claim for interest and in my opinion this should be allowed but only in respect of the award for gratuitous services, the award for his loss of the chance of employment being global. At 6 per cent for the six years or so since those gratuitous services were no longer attributable to the negligence of the defendants, the relevant award is $450.80 (rounded up).
Summary
General damages  $53,000.00
Loss of chance of past and future employment  $5,000.00
Gratuitous services  $1,248.00
Interest$450.00
Future medical expenses  $1,000.00
$57,698.00