Mirosevich v NATALOTTO - [2001] WADC 143

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MIROSEVICH -v- NATALOTTO [2001] WADC 143

CORAM: MARTINO DCJ

HEARD: 26 & 27 FEBRUARY 2001

DELIVERED : 19 JUNE 2001

FILE NO/S: CIV 988 of 2000

BETWEEN: MICHAEL WARREN MIROSEVICH
Plaintiff
AND
NIGEL LEO NATALOTTO
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Damages - Personal injuries

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Marks & Sands
Defendant: Phillips Fox

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

Nil

Case(s) also cited:

Nil

MARTINO DCJ:

Introduction

The plaintiff claims damages for personal injuries suffered in an accident on 18 December 1995. The defendant admits liability for the accident but does not admit that the plaintiff suffered any injuries. The defendant also pleaded that any injuries, loss or damage suffered by the plaintiff were caused or contributed to by a pre‑existing condition of the spine and a head injury suffered in 1988 but these issues were not pursued during the trial.
The plaintiff was born on 7 May 1974. He is employed as a crowd controller at a nightclub in Fremantle. The plaintiff finished school after having completed Year 12 in 1992. He then did a year of a pre‑apprenticeship plumbing course. Near the end of that year he started working at a nightclub. Since then the plaintiff's employment has been in nightclub crowd control and security.

Summary of the evidence

The plaintiff gave evidence that immediately after the accident he had pain from his upper back to his neck, mainly in his neck. He saw a medical practitioner on the day of the accident. The medical practitioner arranged x‑rays. The plaintiff went back to the doctor two days later. By then the pain in his neck had eased. A couple of days after the accident there was pain in the area from his mid to his lower back. Since then he has suffered pain in that area intermittently. Some days he is trouble free while other days he struggles to get out of bed. When he stands for long periods of time the pain gets a lot worse.
At the beginning of 1994 he obtained employment with Premium Security where he worked until approximately August or September of 1996. He then took two months off work. His evidence was that he took those two months off because of back pain. He did not tell anyone at Premium Security that he was having trouble with his back. He was not required to take time off work and was able to perform his duties adequately. He then took up employment with Panther Security where he worked for some six or seven months. He commenced employment with Panther Security in mid‑November 1996. He was working approximately five nights a week on ten hour shifts. He found that his back was constantly causing him problems, so he approached his boss Mr Peter Douglas. The plaintiff explained his situation to him and Mr Douglas transferred the plaintiff to another venue. As a result the plaintiff's hours of work dropped from 50 to 60 hours a week down to 20 to 35 hours a week.
In 1999 the plaintiff took six months off work to study for a Business Diploma at Fremantle TAFE. The plaintiff's evidence was that the main reason for commencing these studies was his back pain. However for financial reasons he found that he could not continue studying and so he returned to employment with Panther Security working 20 to 30 hours per week. When the plaintiff commenced employment with Panther Security he was employed as a base level crowd controller. Around the middle of 2000 he was promoted to supervisor which entitled him to a higher hourly rate of remuneration.
The plaintiff played football prior to the accident. He had not played in the 1995 season but had played in earlier years for CBC Fremantle. At the beginning of 1996 he went to the club's football training to receive chiropractic treatment for free from the club chiropractor Bradley Grant. He said that while there he was asked to play football and in 1996 he played a few games of football in lower grades. He was cross‑examined about the fact that the records of the competition showed that he played 20 games of football that year. He said that he did not do so, and that in the lower grades it was common for an unregistered player to play a game under the name of a registered player.
In later years the plaintiff played games of football in higher grades as he tried to get his fitness back. The highest level he reached was A Grade Reserves, which is a level which requires considerable physical effort.
Income tax documents were tendered in evidence as part of the plaintiff's case. Those records show the plaintiff's income as having been:
Year ended                  Taxable income              Net income
30 June 1992               $5,295  $5,295
30 June 1993               $7,970  $7,456
30 June 1994               $12,764  $11,426
30 June 1995               $21,195  $17,794
30 June 1996               $25,237  $20,328
30 June 1997               $31,983  $24,445
30 June 1998               $35,070  $26,446
30 June 1999               $16,317  $13,039
30 June 2000               $24,665  $19,887
The plaintiff called Dr Robert Houston, a general medical practitioner who has treated the plaintiff. Dr Houston gave evidence orally and by producing reports as to his own treatment of the plaintiff and, based on the notes of his practice, as to attendances on the plaintiff by Dr Henderson of his practice. When he saw Dr Henderson on 18 December 1995 the plaintiff complained of mid‑back pain. Dr Henderson found a full range of thoracic movement but tenderness over the mid‑thoracic vertebrae. Examination of the cervical spine revealed a full range of movement with no pain. Dr Henderson arranged an x‑ray of the plaintiff's spine.
The plaintiff returned to the surgery on 20 December 1995. The x‑ray of the thoracic spine was normal. The plaintiff continued to have mid and upper‑back pain and had also developed some left sided cervical stiffness. He had a full range of pain free cervical movement but was slightly tender over the left cervical paravertebral muscles. The plaintiff was diagnosed as having suffered cervical and thoracic soft tissue injuries. No specific treatment was arranged.
The plaintiff next attended Dr Houston's surgery on 12 June 1996. Dr Houston saw the plaintiff following a request for a report from the defendant's compulsory insurer. The plaintiff told Dr Houston that his condition had settled for two or three weeks after December 1995 but he had then developed a recurrence of his discomfort. He had not experienced any further problems with his neck but had persisting mid and low thoracic pain and possibly some upper lumbar pain. He reported that the pain has been present everyday but not continuously. The pain was aggravated by prolonged standing. The plaintiff told Dr Houston that he had seen a friend who was a chiropractor for therapy. An examination revealed a full range of cervical movement with no pain or tenderness.
Dr Houston saw the plaintiff in October 1999. At that time the plaintiff complained of persistent back pain, which was aggravated by long sitting or standing stationary for any length of time. The plaintiff informed Dr Houston that he ceased work in February 1999 for approximately six months due to difficulties with pain at work as a crowd controller. He said that when he returned to work in August 1999 he noted aggravation of his discomfort. He was continuing to receive chiropractic treatment which was monthly. Chiropractic treatment gave him short‑term relief of his symptoms but the pain tended to re‑occur. Dr Houston again saw the plaintiff on 26 October 1999. He suggested a continuation of anti‑inflammatory medication and of the plaintiff's exercise program.
In cross‑examination, Dr Houston was asked about the fact that the plaintiff's lower back pain did not come on for more than a week after the accident. Dr Houston expressed the opinion that in view of that time lapse, the relationship between the lower back pain and the accident was "a grey area" and "you couldn't be certain" about the relationship between the low back pain and the accident.
Professor James Taylor, a medical practitioner who practices in pain management and spinal medicine, saw the plaintiff on 21 December 1999. He wrote a report of the same date containing his assessment of the plaintiff. He expressed the following opinion of the plaintiff's injuries:
"I think he has suffered injuries in the thoraco‑lumbar region, which may be soft tissue injuries, but may also involve end plate fractures in the thoraco-lumbar region due to flexion compression. It is possible that he may have mild changes of so‑called Scheuermann's Disease in the thoraco‑lumbar spine. This is a growth‑related phenomena which is usually symptomatic. The history is also suggestive of a degree of instability, and I would suggest you see Dr Peter O'Sullivan, a manipulative physiotherapist with particular expertise in this area."
Professor Taylor expressed the opinion that the plaintiff was partially unfit for work and that he was unable to do ten hour shifts as a crowd controller, but was able to do shifts of up to eight hours with two or three breaks of ten minutes to do stretches and rest, and he was unable to sustain long standing. Professor Taylor expressed the following opinion on the plaintiff's prognosis:
"I would anticipate that the current lifestyle changes will require to be maintained for at least another year or two, and that he may never be able to resume his former lifestyle of wightlifting, regular football and basketball. However with time and appropriate management he may be able to resume full time work within 2‑3 years.
It is difficult to specify a percentage disability as this is usually measured in terms of loss of movement and his loss of thoracolumbar movement would be minimal, in the region of 5‑10%."
In cross‑examination it was suggested to Professor Taylor that as the plaintiff's lower back pain did not come on for some two to four weeks after the motor vehicle accident the relationship between the motor vehicle accident and the lower back pain was questionable. Professor Taylor did not agree with that proposition. He expressed the opinion that unless there was some other incident to explain the lower back pain it was likely to have been caused by the motor vehicle accident. In his opinion there are primary and secondary affects from an accident. Where there are multiple injuries pain in one region can mask temporarily pain in another region. When pain in one area dies down the patient frequently becomes more aware or complains of pain in another region. Professor Taylor also expressed the view that it was likely that the plaintiff had a small end‑plate fracture in the motor vehicle accident that led eventually to changes in the adjacent disk and that these were probably what gave rise to the later symptoms. It is probable that a person would get severe pain at the time of an end‑plate fracture, but it is not necessary that the pain occur.
The plaintiff called Mr Bradley Grant. Mr Grant is a registered chiropractor. He holds a Bachelor of Applied Science in Chiropractic from RMIT University in Melbourne and has been a chiropractor for 13 years. Mr Grant came to know the plaintiff through his honorary role at the CBC Football club where he helps with the treatment of injuries. He first met the plaintiff some four to five years before the motor vehicle accident. He could recall treating the plaintiff for ankle injuries before the motor vehicle accident, but not any back injuries. In the pre‑season of 1996 Mr Grant examined the plaintiff with regards to complaints of pain in the thoraco‑lumbar area and the lower lumbar spine which the plaintiff said were caused by an accident. Mr Grant did not keep records of his treatment of the plaintiff. He recalled that in the early parts of 1996 his treatment was frequent, but then reduced to fortnightly and then monthly treatment for a period of years.
The defendant called Ronald Anthony Baldini. Mr Baldini is the proprietor of Premium Security Services and he employed the plaintiff as a crowd controller in 1994. In the course of his employment with Premium Security Services, the plaintiff was promoted to a supervisory role, running the crowd control of the venue. The plaintiff worked for Premium Security Services until 13 October 1996. Mr Baldini was not aware that the plaintiff had been involved in a motor vehicle accident. Mr Baldini visited the various sites to which his company provided crowd control services in the course of doing that he would see the plaintiff from time to time. He was satisfied that the plaintiff was capable of doing his work fully. The plaintiff told Mr Baldini that he was leaving his employment to take up employment with Panther Security because he was getting higher income.
The defendant also called Neil Ronald Judge. Mr Judge is the Executive Officer of the WA Amateur Football League. He gave evidence as to the league's records of games played by the plaintiff. Those records show that the plaintiff commenced playing in 1992 and played that year, the following year and in 1994. He did not play in 1995. In 1996 he played 20 senior games in H Grade and in 1997 he played ten games in E Grade with CBC then transferred to Swan Athletic where he played a further two games. In 1998 he played a further ten games for CBC in F Grade. In 1999 he played five games in the A Reserves, two in F Grade, and nine in G Grade. In 2000 he played two in the reserves, three in E Grade and five in E Reserve.
In cross‑examination, Mr Judge said that in the lower grades of the Amateur Football League that it does happen that teams play unregistered players under the names of registered players. It is not permitted by the league, and if discovered the team loses the match and is fined, but in the lower grades it does occur.
The defendant called Cliff Stanley Anderson, the president of the CBC Fremantle Amateur Football Club. Mr Anderson knew the plaintiff and gave evidence that the plaintiff had played football for the club. He also confirmed that from time to time unregistered players play under the name of registered players and that this can occur without the registered player knowing about it.
Dr John Graham Rosenthal is a medical practitioner who practices in rehabilitation medicine. Dr Rosenthal saw the plaintiff on 5 January 2000 at the request of the defendant's compulsory liability insurer and provided a report of the same date. Dr Rosenthal found no significant findings on clinical examination. He could not relate the plaintiff's subjective lower back pain as being caused by the motor vehicle accident. Dr Rosenthal did not think that there was any quantifiable level of permanent disability due to the motor vehicle accident, and did not consider the accident compromised the plaintiff's present or future employability.
In cross‑examination Dr Rosenthal was questioned about the statement made in his report of 5 January 2000 that the plaintiff's lower lumbar complaint was questionable because there was no mention of lumbar symptoms in Dr Houston's report dated 18 June 1996. Dr Rosenthal conceded that that statement was not as clear as it might be, and that what he meant to say was that there was no reference to lower lumbar complaint until some six months after the accident and for that reason he regarded the relationship between the accident and the lower lumbar pain as being questionable.
In re‑examination Dr Rosenthal said that with posturally related pain such as that suffered by the plaintiff in his back the best method of relieving the pain is to alternate your posture and avoid provocative activity. If the plaintiff was able to do that he would be able to work for longer than five hours at a time.

Findings of fact

I accept the plaintiff as an honest witness who did his best to relate the effects of his injuries in the motor vehicle accident without attempting to overstate them. I find that immediately after the accident the plaintiff felt pain in his upper back and neck, mainly in his neck, and that a few days afterwards he noticed pain in his lower back. I accept that pain continues on an intermittent basis and it restricts his ability to stand for long periods of time. I accept also the plaintiff's evidence that due to his symptoms he ceased working for Premium Security and was unemployed for a period. On the basis of Mr Baldini's evidence from the records of his company I find that the plaintiff ceased working for Premium Security on 13 October 1996. The plaintiff commenced employment with Panther Security in mid‑November 1996. I find that the period of unemployment was approximately four weeks. I find that Mr Baldini is mistaken in his recollection that the plaintiff told him that he was going to another job. Mr Baldini has had very many employees and I do not think it realistic that he could expect to remember such detail.
I also accept that from late‑1996 to mid‑1997 the plaintiff worked for long hours for Panther Security at a nightclub which was open for long hours. I accept that while he was coping with those long hours he had difficulty doing so. Eventually he got a job as a supervisor at another nightclub where the hours were less.
For six months in 1999 the plaintiff was unemployed while he attended TAFE for a Business Diploma. I do not accept that period of six months without income was reasonable mitigation of his loss for two reasons. First while there were some restrictions on his capacity to work as a crowd controller that restriction was limited. Second the plaintiff did not properly investigate the suitability of the course for him and his capacity to complete it before he undertook it.
For these reasons it is not possible to be precise about the past loss of earnings of the plaintiff. I do accept that there has been some loss of earning capacity. By reason of his back pain the plaintiff was unemployed for four weeks in 1996 and from approximately mid‑1995 he reduced the hours he was working.
I also accept the evidence of Professor Taylor that it is likely that the plaintiff did suffer some injury to his back in the motor vehicle accident and that the ongoing low back discomfort is a result of the motor vehicle accident. I also accept Professor Taylor's opinion that the plaintiff's condition is likely to improve over the next year or so.

Assessment of loss

For the plaintiff's non‑pecuniary loss I assess the pain, discomfort and restrictions the plaintiff has suffered and is likely to suffer for some limited time in the future as being 8 per cent of the most extreme case. His entitlement to general damages is therefore $7,000 (net).
It is not possible precisely to calculate the plaintiff's past and future loss of earning capacity. He is a young man who was progressing through a career. I do not allow as part of his damages the time spent studying. Calculations would not assist in making more precise an estimate which I conclude must be done on a global basis. I assess the plaintiff's past loss of earnings net of tax and including past loss of superannuation and interest at $25,000 and his future loss of earnings net of tax and including future loss of superannuation at $5,000.
The plaintiff claims the value of the chiropractic services rendered gratuitously by Mr Grant. It is not possible to calculate precisely the value of those services. I do accept that some services provided by Mr Grant would have been reasonably incurred at cost if not provided by Mr Grant. I allow $2,500 for that claim. There is no claim for other special damages. Interest on that sum at 3 per cent per annum from 1 January 1996 is $410.

Summary

In summary I assess the plaintiff's damages as follows:
General damages  $ 7,000
Past loss of earnings  $25,000
Future loss of earnings  $ 5,000
Gratuitous chiropractic services  $ 2,500
Interest on gratuitous chiropractic services             $     410
TOTAL  $39,910