Ninkovic v Cohen - [1999] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NINKOVIC -v- COHEN [1999] WADC 135

CORAM: O'BRIEN DCJ

HEARD: 17 AND 18 NOVEMBER 1999

DELIVERED : 25 NOVEMBER 1999

FILE NO/S: CIV 5026 of 1998

BETWEEN: ZORAN NINKOVIC
Plaintiff
AND
ALIZA COHEN
Defendant

Catchwords:

Personal injuries - Motor vehicle accident in August 1998 - Soft tissue injuries to lower back, neck and knee - Nature and extent of incapacity for work as a painter - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Awarded: general damages of $3,735; past loss of earnings $20,900; future loss of earnings $10,000.

Representation:

Counsel:

Plaintiff: Mr A A Jenshel
Defendant: Mr J G Staude

Solicitors:

Plaintiff: James McManus & Associates
Defendant: John G Staude

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

Giorginis v Kastrati (1989) A Tort Rep 80-223
Stevenson v Stevenson, unreported; SCt of WA; Library No 950445A; 30 August 1995

Case(s) also cited:

Graham v Baker (1961) 106 CLR 340
Giorginis v Kastrati (1989) A Tort Rep 80-233
Watts v Rake (1960) 108 CLR 158

O'BRIEN DCJ: On 20 August 1998 the plaintiff, Mr Zoran Ninkovic, was driving a Ford Falcon sedan in a northerly direction on Alexander Drive. He was driving towards the intersection of Alexander Drive and Yirrigan Drive, Mirrabooka. The intersection was controlled by traffic lights. The defendant was driving a Ford Meteor sedan south along Alexander Drive and executed a right-hand turn from Alexander Drive, west into Yirrigan Drive. The defendant's car collided with the plaintiff's oncoming car which had right of way in the circumstances. Liability for negligence has been admitted by the defendant's insurer.
The only issue for determination is the quantum of damages.

The Plaintiff's Claim

The plaintiff claims that he suffered soft tissue hyperextension injuries to the cervical spine and lumbar sacral spine; soft tissue injuries to the right knee; and soft tissue injury to the lumbar sacral intervertebral disc.
The plaintiff claims that since the accident the injury to his cervical spine has virtually stabilised, as has the injury to his right knee. However, since the accident the plaintiff claims that the pain in his lower back has worsened.
At the time of the accident, the plaintiff was an unemployed contract painter. However, he testified that on the day of the accident he had arranged with a previous employer, A & Z Painting and Renovating ("A&Z"), to start a painting job on 24 August 1998. The plaintiff claims that due to his injury and its effects, he -
•has been unable to return to his pre-accident employment as a contract painter;
• has suffered past economic loss in the sum of $600 per week;
•will suffer future economic loss in that he will be unable to return to his pre-accident employment as a contract painter and will be restricted to work of a lighter nature avoiding extensive standing, bending, lifting and activities generally associated with contract painting;
•has suffered and will continue to suffer a significant loss of enjoyment of life in that he is unable to fully engage in his pre-accident sporting and social activities and in particular, soccer, basketball, day to day domestic activities and the ability to maintain an adequate level of fitness generally; and
•will be required to undergo continuing medical and associated treatment.
Immediately after the accident, the plaintiff consulted his general practitioner, Dr J Batalin. Dr Batalin prescribed pain killers and referred the plaintiff for an extensive course of physiotherapy and hydrotherapy. Given that the plaintiff reported a worsening of symptoms over a period of time, Dr Batalin referred the plaintiff to Mr N Batalin, consultant orthopaedic surgeon. The plaintiff has also been reviewed by:
Dr Frank Cordova, a general practitioner with a special interest in musculo-skeletal injuries;
Dr P M Finch, a pain specialist;
Mr Peter Watson, a neurosurgeon;
Professor Peter Hollingworth, a specialist in occupational medicine; and
has undergone x-rays, including a CT scan and MRI and an arthrogram on his knee.
In his schedule of future medical and associated treatment, the plaintiff claims the sum of $20,000 for future medical treatment. He claims that there is a high prospect of the need for surgery in the form of an anterior spinal fusion of the lumbar sacral spine.
As to future economic loss, the plaintiff claims that on the basis of a 50 per cent retained earning capacity at the rate of $300 per week net. The plaintiff is now aged 42 years and it is claimed that he would in normal circumstances have worked to the age of 65 years.

The Defence

The defendant concedes that the plaintiff may have suffered injury to his low back and right knee but maintains that those injuries were minor and short-term. The defendant disputes the plaintiff's complaints of on-going accident related neck, low back and knee symptoms, claiming that these symptoms are uncorroborated by any objective evidence of pathology.
The defendant claims that the following factors impact on a finding as to the injuries suffered by the plaintiff and the injuries he continues to suffer:
•       Delayed onset and reporting of neck symptoms;
•failure to improve which is contrary to the expectations of the doctors;
•       the failure to respond to physiotherapy;
•       the examination of Mr N Batalin which revealed inconsistent signs;
•       the lack of pathology; and
•requests by the plaintiff for x-rays, CT scan, MRI and specialist referrals.
The defendant's counsel did not pursue many of these issues. Ultimately, the defendant relies on the inconsistencies found in Mr Batalin's examination and the plaintiff's alleged lack of credibility as to his injuries and incapacity for work.
Further, the defendant disputes the plaintiff's claim for loss of earning capacity as being unsupported by the evidence. I shall refer to the plaintiff's work and earning history later in this judgment.

The Plaintiff's Background

The plaintiff was born in Yugoslavia on 3 May 1957. He came to Australia with his parents in 1970 when he was 13 years of age. The family returned to Yugoslavia in 1975 where he lived until 1990. The plaintiff completed his high schooling in Yugoslavia and then attended what he referred to as "traffic school" for three years. He obtained a qualification to become a professional driver, obtaining a driver's licence to drive all classes of vehicles. Whilst in Yugoslavia, the plaintiff worked as a taxi driver for six months in 1983 and the remainder of the time he worked with his father, who had his own painting business. It was whilst working with his father that the plaintiff learned his trade as a painter. The plaintiff married in 1989 and returned to Australia in 1990. He and his wife established an import/export clothing business. This required the plaintiff to travel to China to purchase and import silk fabric. This business lasted until 1992 but appeared not to be particularly profitable. After the business terminated, the plaintiff began looking for work as a painter. He started working for A & Z in August 1992. That job lasted until January 1993. In April 1993, the plaintiff returned to Yugoslavia to assist his father, who was then ill. When he returned to Australia, the plaintiff obtained work with A & Z again and worked from October 1993 until January 1994. His income tax returns indicate he earned $4,300. At that time, he was working as a sub-contractor for A & Z for $150 per day. A & Z supplied the paint and the plaintiff supplied brushes and rollers. At the end of 1993 the plaintiff separated from his wife.
When the work ran out, the plaintiff decided to return to Yugoslavia to see his father in April 1994. He remained in Yugoslavia until August 1994. During that time he worked for his father whose illness was worsening.
From August 1994 until June 1995 when the plaintiff was in Australia, he was not working. He was able to live because his father had given him $30,000 at the end of 1994. In July 1995 the plaintiff returned to Yugoslavia and it was at that time that his father died. He only stayed in Yugoslavia a short period of time. The plaintiff considered investing the $30,000 he received from his father in a business in Thailand but because of the sanctions imposed on Yugoslavia at the time that business did not go ahead. The plaintiff again went to Yugoslavia between January and March 1996. It was during that time that he met his second wife.
The plaintiff and his wife set up a clothing shop in Perth in July 1996. This shop was broken into in October 1996 and all of the stock taken. Despite a rent "holiday" the shop remained closed until January 1997 when the business closed down. From March 1997 the plaintiff received unemployment benefits from Social Security. In around the middle of 1997, the plaintiff obtained about two months work with A & Z and earned $1,950. For the balance of the 1998 financial year the plaintiff received Social Security benefits in the sum of $3,481.
Following the accident on 20 August 1998, the defendant's insurer paid the plaintiff $5,000 for damage to his car.
Since the accident, the plaintiff has only worked for a few hours in January 1999 at the suggestion of Mr Batalin. He claims that because of his injuries he was unable to cope with the painting work. Apart from that short employment, since the accident the plaintiff has been receiving Social Security benefits.
The plaintiff has two children born 31 March 1997 and 22 April 1998 respectively.
The plaintiff testified that on the day of the accident he had discussions with Mr and Mrs Biskupic who owned A & Z. A job was arranged to commence on 24 August 1998. The plaintiff was to be paid $150 per day gross. Again he was to supply his own tools and A & Z would supply the paint.
The plaintiff was returning home from his discussions with the Biskupics when the accident occurred.
The plaintiff testified that his right knee was cut in the accident but that initially did not worry him. His right leg then commenced to swell and became uncomfortable and he started having pain in his back and neck.
The plaintiff testified that the pain still continues although his neck is settling down.
Immediately following the accident the plaintiff testified that he had pain in the base of his neck when he moved, for example, when he got up from his bed. He testified that he has never had a good night's sleep and wakes up in the night with pain in his neck and back. He testified that he sometimes has headaches throughout the day although this does not happen every day.
The plaintiff said that his neck has improved but in the week after the accident he had constant pain in his neck. The plaintiff referred to this as "uncomfort". This neck pain initially lasted about two or three months. The plaintiff testified that he believed the physiotherapy and pool sessions assisted his neck.
The plaintiff claims that when he went back to work on 5 and 6 January at the suggestion of Mr Batalin his neck caused him pain if he was painting ceilings and walls. He testified that it causes him pain in certain positions, such as bathing his son and bending over. Now his neck bothers him maybe once or twice a week. When his neck causes him pain, the plaintiff takes Panadeine Forté and Piroxican.
Initially, the plaintiff's knee injury did not bother him particularly. However, sometime after the accident, if he walked for a long period of time or slept in certain positions, he would find his knee swollen. After the accident the plaintiff's knee troubled him every one or two days. The pain fluctuated. The plaintiff claims that his knee has improved a little bit since the accident but he still gets pain in his leg. Now his leg does not get so swollen.
The plaintiff noticed his low back pain the night of the accident and he was very uncomfortable. He rang Dr Batalin the next day but was unable to get an appointment until 24 August. The plaintiff described his lower back as "something like pulling me. It's very uncomfortable pain".
In the days and weeks following the accident the plaintiff testified that the pain in his lower back was there constantly and increased when he did such things as picking up his children or doing gardening. He said that his habit is to sleep on his stomach and that caused him pain. He said that the pain in his back has not improved since the accident. The only thing that eases the pain in his back is a hot shower which give some comfort for a couple of hours.
The plaintiff said that he has difficulty doing his painting jobs - he can't kneel down to paint skirting boards. He also found it difficult to move the planks. The afternoon and night that he worked in January 1999 he had a lot of pain that required medication. He says he also has difficulty running and finds it difficult to swim because after swimming he has pain in his back.
Some of the treatment given to him by the physiotherapist caused him pain in his back.
The plaintiff said he has not looked for any work since the accident because he does not feel qualified to work in an office or in other work where he does not have to lift heavy objects. He has discomfort sitting down for roughly an hour, and in bending.

The Medical Evidence.

Dr D J Batalin

As far as treatment was concerned, Dr Batalin simply prescribed analgesics and/or anti-inflammatories for the plaintiff's pain. His initial report prepared for the defendant's insurer dated 24 August 1998 reported the plaintiff's injuries as being "residual discomfort of lower back and (R) knee that still had a graze over patella". On 28 August 1998 Dr Batalin reported that the plaintiff complained that his symptoms had worsened. On 24 September 1998 he reported that the plaintiff claimed that he had increased pain in his right knee.
On 5 October 1998 the plaintiff complained of neck and low back pain. This is the first mention of neck pain in Dr Batalin's reports. Dr Batalin was of the view that the pain was of musculo-skeletal sprain nature and recommended that the plaintiff review his condition with his physiotherapist. On 26 October 1998 Dr Batalin referred the plaintiff to "an alternative manipulator" due to "deterioration" of the plaintiff's symptoms. In November 1998 Dr Batalin reported that the plaintiff was unable to work because his injuries interfered with his daily activities. On 20 November 1998 the plaintiff again complained that his symptoms has worsened. Dr Batalin noted that the plaintiff had started to develop a limp in his right leg.
It appears from Dr Batalin's report that it was the plaintiff who requested x-rays and specialist treatment. This was as early as 24 August 1998 when the plaintiff requested x-rays of his back and knee. On 24 September 1998 the plaintiff was keen to have physiotherapy and was referred to Ms V Stanton, a physiotherapist. By November 1998 Dr Batalin considered that the plaintiff should be reviewed by an orthopaedic specialist. The plaintiff himself requested a CAT scan of his spine and Dr Batalin referred the plaintiff to Mr N Batalin, a spinal specialist, and left the issue of a CAT scan to Mr Batalin.

Mr Peter Watson

Mr Watson is a neurosurgeon. He reviewed the plaintiff on 22 October 1999. He had access to reports of Dr Frank Cordova and Mr Nick Batalin, as well as the x-rays, CT and MRI scans. He noted that the CT scan which was performed in December 1998 revealed a slight disc bulge at the L4/5 level but no evidence of nerve root impingement. The MRI scan revealed early L4/5 disc degeneration and a disc annular tear at the L4/5 level. The MRI also confirmed no evidence of nerve root impingement.
Mr Watson said it was not possible to state with certainty that the disc annular tear was caused by the accident in August 1998 given that there are no pre- and post-accident MRI scans. However, in Mr Watson's view, "… it is more probable than not that the motor vehicle accident has contributed to the disc annular tear at L4/5 and in association with other soft tissue and ligamentous injuries in that region of the spine, is responsible for Mr Ninkovic's current lumbar symptomatology."
Mr Watson was of the view that the plaintiff did not require future surgery either in the form of discectomy or fusion. His opinion was that the plaintiff is not able to return to his work as a painter and that his prognosis for recovery remains uncertain. Mr Watson was of the view that the plaintiff will be able to return to work as a painter if he participates in an ongoing exercise and strengthening programme. He estimated that this could take one to two years. When Mr Watson saw the plaintiff, the plaintiff's complaints about his neck were "minimal". Mr Watson does not place much credence on measuring the degree of flexibility of legs, spine and neck as an indicator of incapacity. Inconsistency in movement noted clinically would not necessarily indicate that a person was not in pain.
Mr Watson agreed that he was of a different school of thought from doctors such as Mr Batalin, who does direct and indirect assessment of movement with a view to diagnosing a particular condition. Mr Watson was of the view that that sort of comparison was not valid as it does not measure pain.

Dr Frank Cordova

Dr Cordova is a medical general practitioner with a special interest in musculo-skeletal medicine. Approximately 60 per cent of his patients present with musculo-skeletal problems. Dr Cordova is a Fellow the Australian Sports Medicine Federation and is a member of the College of Sports Physicians. Dr Cordova examined the plaintiff on two occasions in or around September 1999. His clinical findings did not differ to any marked degree from the other doctors who have examined the plaintiff. Dr Cordova's view was that the transverse tear of the annular was most probably caused by the accident. He was particularly careful with palpation of the L4/5 area. Dr Cordova's view was that the extent of the plaintiff's tenderness in that area would have been such that he would have complained of pain to his other doctors or his general practitioner prior to the date of the accident. His recommendation for the plaintiff was that he undergo thorough conscientious rehabilitation with abdominal muscular strengthening, strengthening of the erector spinae, first by swimming and later with a gym programme, and stretching of the hamstring muscles to take the strain of the back whenever the plaintiff bends forward. In Dr Cordova's view, the plaintiff should then be able to resume work as a contract painter within 18 to 24 months.

Dr Philip Finch

Dr Finch is a pain specialist. He was of the view that the plaintiff's main problem was the L4/5 annular tear and that the internally disrupted disc is the source of his mechanical low back pain. Dr Finch was of the view in August 1999 that the plaintiff "is unfit to work as a painter, except for very short periods of time and in limited circumstances. … [His] symptoms have been present for a year and most probably originate in a disrupted disc. … My prognosis is somewhat guarded and I think it likely that [the plaintiff] will continue to experience symptoms sufficient to interfere with his work." He was of the view that the plaintiff would have "a grumbling back for a long time on and off". He was unable to predict for how much longer the plaintiff's back would "bother" him.
However, Dr Finch was of the view that people with symptomatic annular tears often cannot work with the lumbar spine in prolonged flexion or lift heavy weights above five to 10 kilograms.

Professor Peter Hollingworth

Professor Hollingworth is the associate professor of occupational medicine in the school of public health at the University of Western Australia. He examined the plaintiff in August 1999. Again, his findings were consistent with the other doctors who have examined the plaintiff. Professor Hollingworth could find no inconsistencies and nothing to suggest any symptom magnification on the part of the plaintiff.

Professor Hollingworth's view was that at the present time work as a painter would be inappropriate for the plaintiff. He estimated that within the next two years or so the symptoms should settle down and the plaintiff should be able to return to his work as a painter. In the meantime, he recommended that the plaintiff continue with his exercise programme.

Mr Nick Batalin

Mr Batalin is an orthopaedic surgeon. Mr Batalin has seen the plaintiff three times over the last 12 months. Mr Batalin noted inconsistencies in movement on the part of the plaintiff when conducting direct and indirect methods of assessment. He drew no conclusions from these inconsistencies apart from being of the view that indirect assessment is a more accurate indicator of disability. He testified that these inconsistencies are sometimes present with patients who are not in the medico/legal system and have no prospects of secondary gain as a result of their medical condition. Mr Batalin could detect no major or significant pathology in the neck, lower back or right knee. However, he accepted that if the plaintiff is truthful as to the degree of pain, it is more probable than not, given that he was asymptomatic prior to the accident, that the accident was the cause of the annular tear, or that a pre-existing annular tear became symptomatic as a result of the accident.
Mr Batalin suggested a graduated return to work. Mr Batalain acknowledged that the plaintiff "has some incapacity for work" He testified that "it would probably be inadvisable for [the plaintiff] to subject his back to heavy labouring occupations like repetitive bending and heavy lifting, but apart from that [there was] every indication for gainful employment".

Summary of Medical Condition

The plaintiff claims that as a result of the accident, he sustained injuries to his lower back, neck and right knee.
The plaintiff's right knee hit the dashboard on impact and was grazed. The plaintiff claims that since then, his knee has caused him pain and discomfort and becomes swollen from time to time. X-rays in August 1998 and an arthrogram performed in December 1998 were normal. All doctors who examined the knee could find no signs of pathology. Dr Cordova was of the view that it is not uncommon for "these dash board knee injuries to remain painful and symptomatic for several years". Examinations by Dr Finch found mild tenderness over the medial joint line but a normal function and no effusion or swelling. Mr Batalin noted slight tenderness when he examined the knee in December 1998. In February 1999 on review, Mr Batalin did not notice any change in the knee. Mr Watson also noted some tenderness.
Overall it would seem that the plaintiff sustained a minor injury to his knee in the accident, which did not have any long term pathology. His knee caused still causes him pain from time to time and prevents him from kneeling to paint skirting boards and the like. The medical opinion is to the effect that with time the symptoms will resolve.
The plaintiff also sustained a minor injury to his cervical spine. This caused him pain on and off for a year or so. In particular when he trialed a return to work in January 1999, he found that his neck caused him problems on upward flexion. Again radiology disclosed no abnormalities. The medical opinion is that the neck sustained a soft tissue injury, which will resolve over time. Certainly, at trial the plaintiff did not place too much importance on this injury.
The plaintiff and the doctors attribute the source of the plaintiff's pain, discomfort and inability to work as a painter to his lower back injury. There is minimal degenerative type annular bulging at the L4/5 level. There is no evidence of disc prolapse or protrusion and no neural structure compromise. There was no bone or joint injury.
When examined at the L4/5 level, the plaintiff consistently complained of pain. The two issues in relation to the plaintiff's back are whether the annular tear was caused by or became symptomatic as a result of the accident and to what extent the plaintiff's work as a painter is compromised by the injury.
The medical evidence is consistent in that there is agreement that in the absence of MRIs before and after the accident, no-one can categorically say whether the annular tear was caused by the accident. However, the overwhelming medical opinion is to the effect that if the plaintiff is truthful he was asymptomatic before the accident and suffered pain thereafter, then it is more probable than not that the annular tear was either caused by or became symptomatic as a result of the accident.
I have no reason to doubt the plaintiff's testimony that he did not suffer back pain before the accident. I therefore find on the balance of probabilities that the annular tear was either caused by or became symptomatic as a result of the accident.
The doctors agree that pain is subjective. Certain manipulations of the back and limbs can be performed which provide some indication as to whether a person is suffering pain. The fact that a person may have restricted movement in formal assessment and less restricted movement when indirectly assessed does not in my view necessarily mean that the pain is not as severe as described. There may be many reasons why the inconsistencies in movement appear. These could include a deliberate or unwitting exaggeration of symptoms or an over-cautiousness in moving in the formal clinical situation to avoid pain. The relevance of Mr Batalin's observation of inconsistencies in movement, as I understand his evidence, is that he treats back pain conservatively. He wants to double check his assessment by direct means of a person's movements by indirect methods of assessment so as to avoid unnecessary surgery or other intrusive treatment. Mr Watson does not ascribe to this method of assessment. This difference of opinion seems to be based on personal preference. There does not seem to be any scientific basis for preferring one view over the other.

Future medical expenses

In my view, the plaintiff has not proved on the balance of probabilities that he will need surgical intervention to remedy the problems with his back. The overwhelming medical view is that with on-going rehabilitation, surgical intervention will not be necessary. The cost of pain killers was not proved. There were no receipts for medication produced nor any estimate as to its cost. Accordingly, I make no award for future medical costs.

General Damages

In my view, the plaintiff has suffered fairly constant back pain since the accident which is caused by an injury suffered in the accident. As well, he has suffered some knee and neck pain but both appeared to have stabilised and now cause him problems only intermittently.
Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act1943 provides that “the amount of the damages to be awarded for non-pecuniary loss is to be a proportion determined according to the security of the non-pecuniary loss, of the maximum amount that may be awarded”. The maximum amount is currently $219,000 (s3C(3) see Government Gazette 22 June 1999).
It is now well accepted that to arrive at an award for non-pecuniary loss, it is necessary in the first instance to determine what proportion (ie percentage) the plaintiff’s claim is of $219,000 rather than making an assessment of a pecuniary amount and treating that as a proportion of the $219,000.
I assess the percentage of the maximum amount payable under the Act for the most extreme case at 6.5 per cent. The net amount I award for non-pecuniary loss is therefore $14,235. As this amount is more than $10,500 (AMOUNT B) but less than $33,000 (AMOUNT C) the plaintiff is entitled to the excess of the amount so assessed over $10,500 (AMOUNT B) (s3C(5)).
Accordingly, the net amount of damages for non-pecuniary loss is $3,735.

The Plaintiff's Earning Capacity

Mrs Antoinette Biskupic, a partner in the business, A & Z, testified that the plaintiff's income from work performed by her business is as follows:
1991/92  $5,772
1993/94  $3,440
1994/95  Nil
1995/96  Nil
1996/97  $5,160
1998/99  Nil
The defendant claims that if the court accepts that the plaintiff has been incapacitated for work as a painter since the accident then pre-trial loss of earnings from the date of the accident should be calculated by reference to the average weekly income earned as a painter over the last six years which is calculated to be $46 per week, or $2,395 per annum. These figures are net of 20 per cent withholding tax (PPS). It is accepted that the burden is on the plaintiff to prove on the balance of probabilities loss of past and future earning capacity. The defendant relies on the case of Giorginis v Kastrati (1989) A Tort Rep 80-223 cited by Pigeon J in Stevenson v Stevenson, unreported; SCt of WA; Library No 950445A; 30 August 1995:
"It was there held that a finding that a plaintiff had a higher income than disclosed in the taxation returns should not be made unless the non-disclosure is admitted … where the non-disclosure is not admitted … the Court should use the income figures actually disclosed as a basis for assessment of damages."
In my view, this is but one factor to be taken into account where there is other evidence which serves to explain why the plaintiff claims that his income is potentially higher than disclosed in his income tax returns.
There were periods of time from 1993 through to March 1996 when the plaintiff was living and, on occasions, working in Yugoslavia. Moreover, there were periods of time when he operated his own businesses, albeit unsuccessfully. Although the plaintiff's income from work as a painter with A & Z over the last six or seven years is relatively minimal, Mrs Biskupic testified that there were times when work would have been available for the plaintiff had he possessed equipment, such as scaffolding, ladders etc. That this might have been the case is irrelevant in my view. The fact is, that work was not available for the plaintiff as he did not have the relevant equipment.
On 20 August 1998, the plaintiff visited Mrs Biskupic and her husband at their request. This was to discuss a painting job which was due to commence on 24 August 1998. Work was offered to the plaintiff at the rate of $150 gross per day. That particular job was to last for around 22 days.
When the plaintiff was not able to work on that job, A & Z employed another painter who worked on the job from August 1998 until the end of March 1999. Mrs Biskupic testified that after that job, she had work available for the plaintiff for another 32 weeks. That would approximate to the date of judgment. She has engaged another painter in the plaintiff's stead. However, this person has his own equipment and is paid a different rate from the plaintiff. In my view, it does not necessarily follow from this fact alone that the plaintiff would have worked for the same period of time as his replacement. Mrs Biskupic gave no detailed evidence of what jobs have been available and what jobs will be available in the future. Her evidence was fairly general in that she said that she is very busy giving quotations for work and at present needs three more painters. However, Mrs Biskupic said that although at present the business needed painters, that situation could change.
Under cross-examination, Mrs Biskupic testified that her business was slow in 1995/96. At that time her husband did a lot of the painting himself. Accordingly to her records of the plaintiff's employment with A & Z, there was no need of his services between 26 July 1997 and August 1998. There were times when the work available would not suit the plaintiff, as a painter with the appropriate equipment was required. She said that a few times the plaintiff would call A & Z looking for work. Sometimes A & Z would call the plaintiff.

Findings as to economic loss

The plaintiff has only worked for A & Z intermittently from 1992 until 1996/97. There is no evidence that the plaintiff applied for painting jobs other than with A & Z. For some of that time the plaintiff has had his own business or has been in Yugoslavia. However, overall, the plaintiff has not had a steady work history. From time to time he has survived because of family assistance. His present social security payments total $350 per week. For the financial years 1996/97 and 1997/98, his social security payments totalled $5887. Using his present weekly social security payments as a rough guide, that means he received social security benefits for 16 or so weeks over that period. Given his other employment over those years, I find it implausible that he could have survived financially without some supplement to his income. However, there was no evidence of income from other sources other than I have outlined.
Mrs Biskupic's evidence was, in effect, the plaintiff would have had work from 24 August 1998 until the present time and probably longer. However, there are a number of factors, which cause me to doubt whether the plaintiff would have actually worked continuously from 24 August 1998 until the present. These include his minimal work with A & Z over the last 7 years; the big lapses of time when he was not employed by A & Z which are only partially explained by evidence of his other activities and the very vague evidence of Mrs Biskupic as to the requirements of A & Z; the unsatisfactory evidence as to his efforts to secure employment with A & Z during that time; the lack of any or any detailed evidence of efforts to obtain painting work with an employer other than A & Z; and the fact that the plaintiff seems to have survived financially from 1992 until the date of his accident on very limited substantiated income.
However, given that by August 1998 the plaintiff was then father of two young children he had to support, his circumstances had changed considerably. I accept his evidence that he genuinely needed work and was prepared to take up the job offer from A & Z. That job was to last for 22 days but it seems that the person employed to replace the plaintiff worked until the end of March 1999 on that and other jobs. There is no evidence as to how many days a week the plaintiff would have worked or for what period of time, or if any was taken off for public and other holidays. There was no evidence as to how much the plaintiff would have been paid for the whole job (save for the daily rate) nor any evidence as to how many days his replacement worked.
In the circumstances, I am prepared to award the plaintiff loss of past wages from 24 August 1998 until 31 March 1999, taking off say, four weeks to reflect Christmas and contingencies including other breaks. I round off the period to 24 weeks and infer from Mrs Biskupic's evidence that the plaintiff would ordinarily have worked five days a week. That amounts to 120 days at $150 per day gross, or about $110 after tax.
As to work after March 1999 until the present, given the uncertainty mentioned above as to whether the plaintiff would have worked continuously with A & Z, I award a global amount of $7,700 which represents 70 days at $110 per day.
As to future loss of income, in my view, the bulk of the medical evidence is that in another 12 months to two years the plaintiff's symptoms should resolve thereby allowing him to return to work as a painter. It is not possible to predict with any certainty when in that time frame the plaintiff will be fit to return to work.
The degree of uncertainly as to the period of time the plaintiff would have been employed by A & Z is exacerbated by the fact that A & Z cannot predict with any accuracy, whether the business will continue to be busy and more importantly whether there will be work for the plaintiff. The plaintiff's previous work history does not convince me that it is more probable than not he would seek, let alone find, work as a painter with another employer. I take into account the plaintiff's previous work history, the uncertainty as to when the plaintiff will be fit to return to work and the other factors I mentioned when assessing past loss of income. The best that I can do given the evidence is to award a global amount of $10,000 for loss of future income.

SUMMARY OF DAMAGES

General Damages  $3,735
Past loss of earnings -
24.08.98 - 31.03.99
120 days @ $110 per day            $13,200
01.04.99 to present
70 days @ $110 per day                   7,700                  20,900
Loss of future earnings  10,000
Total  $34,635