Pasvouris v SCHMARR
[2006] SADC 92
•18 August 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PASVOURIS v SCHMARR
[2006] SADC 92
Judgment of Her Honour Judge Kelly
18 August 2006
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT
Personal Injuries - plaintiff a 32 year old gymnasium owner - injuries sustained in motor vehicle collision - plaintiff suffered injuries injuries to his left wrist - plaintiff is right handed - assessment pursuant to now repealed s35A of Wrongs Act 1936 (as amended) - numerical value 8 - non-economic loss $13,680 - past loss of earnings $5,000 plus interest of $1,465 - loss of earning capacity $25,000 - special damages Nil - future medical expenses $3,000 - gratuitous household services including interest $3,500 - total award $51,645.
Wrongs Act 1936 (as amended) s 35A, referred to.
PASVOURIS v SCHMARR
[2006] SADC 92The Accident 22 March 2002
The plaintiff claims damages for injuries and loss sustained in a road accident which occurred on 22 March 2002.
On the evening of 22 March 2002 he was driving a 2001 Yamaha R1 motorcycle south on Seaview Road at Henley Beach at approximately 50 kilometres per hour when a vehicle travelling in the opposite direction, without any warning, made a right hand turn in front of him. In the collision the plaintiff was thrown off his motorcycle over the vehicle and landed head first on the bitumen on the other side of the car. The plaintiff remained conscious throughout the incident and was helped to the side of the road by bystanders.
Liability has been admitted, and the action proceeded before me for the assessment of the plaintiff’s damages.
The plaintiff is a 32 year old man who was born on 4 September 1973. He was taken to the Royal Adelaide Hospital by Ambulance where he stayed for two nights before being discharged. X-rays revealed that he had suffered a fracture of the mid-shaft of the left ulnar in the lower arm and fractures to the proximal phalanx of the left finger and a fracture to the base of the fifth metacarpal.
The plaintiff was operated on at the Royal Adelaide Hospital; he underwent an open reduction and internal fixation of the fractured left ulnar with a plate and an open reduction and internal fixation of the fracture of the base of the left fifth metacarpal with K-wires. He was under the care of Dr Brian Wallace an orthopaedic surgeon specialising in lower limb surgery. Dr Wallace appears to be the only doctor called at the trial of this matter who was involved with the actual treatment of the plaintiff after the accident. After the operation the left forearm and hand was immobilised in a plaster back slab. Dr Wallace confirmed that the plaintiff was discharged from the Royal Adelaide Hospital on 24 March 2002 and was subsequently reviewed as an outpatient at the Hand Clinic of the Royal Adelaide Hospital.
The plaintiff complained of pain in the right hand. Dr Wallace said that an MRI scan was performed to investigate possible damage to the hand. That scan revealed no disruption of the tendons but indicated some possible soft tissue damage to the volar plate of the fingers. He was referred for physiotherapy and occupational therapy and was last seen in the Hand Clinic on 11 October by Dr Sandow. The plaintiff said for a period of time he wore antihyper-extenders on the fingers of the right hand. These antihyper-extenders were worn by the plaintiff for about a month after the plaster slab on the left wrist was removed.
Dr Wallace opined that the plaintiff’s prognosis for recovery was good. He thought the injuries were unlikely to require any further specific medical treatment.
The plaintiff had been involved in an earlier motor vehicle accident on 28 September 1996. A good deal of his cross examination was directed to the effects upon the plaintiff of that earlier accident. I bear in mind that the liability of the defendant in this matter is confined to the injuries caused by the accident on 22 March 2002. Whilst such liability does not extend to disabilities which result from pre-existing conditions, if a pre-existing condition is exacerbated by the effects of the subject collision, then it will be compensable to the extent of that exacerbation. So to, the defendant is not liable for disabilities which were going to arise irrespective of the accident on 22 March 2002. However, if the accident accelerated the onset of these disabilities and/or exacerbated them, then to that extent the defendant would be responsible. As King, CJ stated in Walker v Briddon Full Court 9 October 1986
The liability of the defendant is confined to the effect of the injury sustained in the accident; Such liability does not extend to disabilities which result from a pre-existing condition alone, nor to disabilities which would supervene irrespective of the occurrence of the accident. In particular, the defendant is not liable for any impairment of working capacity which results solely from the pre-existing condition or which would supervene irrespective of the occurrence of the accident.
As to the onus of proof I bear in mind the principles stated in Purkess v Crittenden (1965) 114 CLR 164
We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that 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 upon the defendant.
Educational & Work History of the Plaintiff prior to the accident on 22 March 2002
The plaintiff went to primary school and high school in Adelaide leaving school without completing year 10. He said at that stage he was more interested in subjects like Geography and Technical Studies with the emphasis on hands on type of work than other studies. He left school because he was offered a job through his family connections with a firm called H Kelly & Co, manufacturers of hydraulics and pneumatic equipment.
He was employed by that firm as a storeman for about two years. In that time his job involved invoicing, stock control, counter sales, deliveries and stacking of equipment. Some of the equipment that he was required to lift during the course of his employment in that firm was quite heavy weighing somewhere between 20 – 50 kilograms in the form of solid steel cylinders and the like.
The plaintiff’s second job was also one he obtained through his family connections as a console operator at the Caltex Service Station, West Beach.
He was employed at West Beach for about two to three years, until approximately 1992. The work involved console work, petrol sales, stacking of fridges and the like.
At some later stage the plaintiff undertook a basic mechanics course which lasted for about nine months at the Kilkenny TAFE. After he had completed that course he put out some resumes with some various local workshops but says he was unsuccessful in obtaining any work as a mechanic.
At about this time he started to drive a taxi helping out his brother who was leasing a licence at that time. The plaintiff took on the job of the night shift as his brother was married and had his own family. He said that during this time he gained some weight due to the lifestyle involved, the hours of sitting interrupted only by eating and sleeping. This job involved delivering parcels, lifting luggage in and out of the boot of the car, completing the paper work for submission to the accountant each year, and the like. The plaintiff said that he and his brother shared the expenses with each of them taking whatever was left over from their shifts for themselves. During the time he and his brother drove the taxi he did the labouring side of the service work necessary on the taxi. Immediately after the settlement of the plaintiff’s damages claim arising out of the motor vehicle accident on 28 September 1996 the plaintiff and his brother bought into a Chicken Shop venture before moving onto the purchase of a franchise gym at West Lakes.
The Plaintiff’s pre-accident lifestyle
Generally the plaintiff said that prior to the accident he was a socially outgoing and motivated young man. He often went to nightclubs and bars, played indoor soccer, tennis and enjoyed barbeques with friends and family and rode his motorcycle, mainly for recreational purposes.
Given his keen interest in cars from an early age he serviced all the family vehicles and would help out friends with their vehicles from time to time. At home with his parents with whom he has lived all his adult life he would help out also with domestic appliances such as dryers if servicing or maintenance was needed.
When his parents went away, which was often, to their property at Ardrossan he would garden, water, mow the lawn and generally look after the place while they were away. Sometimes he even had to do his own washing and ironing during these times.
His love for cars and engines led to him becoming involved to some extent with drag racing and competition at Virginia and elsewhere through his involvement with a racing team known as Demizio Lumina Racing team. He did some of the engine work for that team and acted as an observer at the front line when the vehicles left, watching to see that the suspension was performing properly. This interest also led him to purchase the 2001 Yamaha RI motorcycle, which he was riding on the date of the accident. He used it occasionally as transport but mainly for recreational purposes during the warmer weather.
The Plaintiff’s daily routine at Club Fitness
On 28 August 1998 the plaintiff and his brother purchased a franchise involving a gym known as Club Fitness at West Lakes. The plaintiff and his brother Eric operated the gym as a franchise until mid to late 2000 when the two brothers assumed ownership of the business.
The gym was situated at Brebner Drive, West Lakes and both the plaintiff and his brother Eric are Managing Directors of the company that now runs that gym.
The Club Fitness facilities included a 16-metre pool, spa, saunas, gym with pin-loaded equipment and free weights, a super circuit ramp and an aerobics room in which regular classes were conducted.
The plaintiff at various stages of his evidence both in chief and cross-examination described his daily routine at the gym prior to the motor vehicle accident.
The gym operated the following hours:-
Monday to Wednesday 6.00 am - 9.00 pm Thursday 6.00 am - 8.30 pm Friday 6.00 am – 8.00 pm Saturday 9.00 am – 2.00 pm Sunday 9.00 am – 1.00 pm
Various staff were employed over that period of time and at one stage they were employing up to 23 staff, although not simultaneously.
Staff members opened the gym at 6.00 am and one person would stay on at Reception until about 10.00 to 10.30 am. The plaintiff usually got into work about 9.00 to 9.30 am.
During that first hour and a half when the receptionist would still be at the counter he would check the levels and chemical balance of the pools, go through the mail, process new members and input various data entries.
He would show potential new members around, do work around the preparation of promotional offers, run through price lists and the different types of information that were available at reception for potential new clients. Each Wednesday he would do the wages. Intermittently he would assist members with the weights, a task known as “member spotting” usually for female clients who couldn’t lift the weights. Some days he would do none of that work, other days he might spend an hour doing that work.
The plaintiff explained in cross-examination what he meant by book keeping and marketing in more detail and described the tasks involved as corresponding with companies that do direct mail outs, leaflet flyer drops, advertisements in the messenger, arranging for celebrities such as football players to come in on site during promotions. Bookwork involved checking the money from the previous day and doing profit and loss statements on a weekly basis.
Stock handling involved filling the two fridges which might take twenty minutes of his day. If he was busy others would do it. The plaintiff conceded in cross-examination that the majority of his day was spent doing counter work.
Urgent repairs and maintenance would be done as required after hours at night if really urgent or on week ends after the gym had closed. After hours maintenance work could take between four to five hours on a Sunday.
Wet area work involving repairs and maintenance could involve quite heavy manual tasks.
The plaintiff described in detail some of the physical tasks required with repairs and maintenance.
The spa was a high maintenance area which because of its nature required more chlorine. There were five lay down beds in the spa which was really a miniature pool and each of these beds had five vacuum blowers to blow the air through the jets. The spa needed to be backwashed daily and flushed out completely once a week.
The plaintiff explained that he and his brother did all of the labouring they could, including painting, cleaning gutters and roof, trimming trees and maintaining the equipment to save labour. As the gym was situated not far from the beach corrosion of fittings occurred more regularly and required more repairs and maintenance. Each two years the gym would be painted and they hired mini-scaffolding to do that work.
The pool required the daily balancing of chemicals. The plaintiff and his brother used a pool flow monitor but the pool regularly needed chlorine or acid added from either two or four hundred litre drums of chlorine or twenty litre containers of acid. This involved some manual pumping. In addition, the pool needed to be cleaned every Sunday, emptied out and scrubbed. The cleaning of the pool filters and pumps was done by the plaintiff and his brother but technicians were brought in for any malfunctioning.
The cardiovascular equipment in the gym which consisted of treadmills, bikes, steppers and rowing machines were maintained by the plaintiff and his brother. This involved cleaning the belts on the treadmills to ensure the speed sensors were accurate. To clean the belts required the taking off of the covers, vacuuming them and unclipping the speed sensor, spraying with some CRC and reconnecting it. To do this work the treadmills themselves which had motors weighing between 170 to 220 kilos needed to be flipped on its side.
The bikes needed the changing of cranks, pedals and chains and to do this it was necessary to unbolt the dust covers.
The gym solarium went through a lot of light globes, which the plaintiff and his brother changed. The plaintiff explained that this involved some quite intricate handwork and twisting motions with the hands.
The pin-loaded equipment in the gym was also high maintenance. It took two spanners to take off the cabling in order to get to the wires and pullies to do the repairs and/or maintenance of those parts.
There were two saunas, both on 24 hour thermostats. Each sauna had five different elements which seemed to burn out on a regular basis and needed changing. This involved the unscrewing of bolts to get into the metal box under the timber and was work performed by both the plaintiff and his brother. The plaintiff and his brother also did a lot of the plumbing work including the changing of washers on the hot and cold water taps throughout the gym.
The Plaintiff’s income pre and post 22 March 2002
The plaintiff’s evidence of pre accident earnings came mainly from him and the business income tax returns of the Pasvouris Family Trust in the years between 1999 up to and including 2005.
The plaintiff agreed in cross-examination that his average annual income as a taxi driver was somewhere in the region of ten thousand dollars ($10,000) perhaps more, but not significantly more.
The plaintiff said that he ceased taxi driving in 1997 for a number of reasons, partly because of the effects of the injury of 28 September 1996, partly because he was sick of taxi driving and because other opportunities came up for him and his brother.
The first venture that he and his brother embarked upon was a chicken shop in a new housing development in the northern suburbs. Although council approval had been given and some moves had been made by the two brothers to set up in that shop, the opportunity arose to purchase the gym and the plaintiff and his brother sold the plant and equipment in connection with the chicken shop business to another man and moved on. The plaintiff’s explanation for that was simply because a better opportunity had come up.
The plaintiff agreed that after he and his brother had purchased the gym and particularly after they were released from the franchise agreement that membership did increase and so did the income from that business.
In some respects the company tax returns for the business speak for themselves.
The income tax returns for the Pasvouris Family Trust in the years 1999 to 2005 inclusive reveal the following picture:-
Year Gross Income
$Gross Expenses
$Net Income
$2000 421,739 388,959 32,780 2001 433,781 372,994 60,787 2002 469,826 391,592 78,234 2003 487,709 417,147 70,562 2004 531,020 433,586 97,434 2005 383,733 308,693 75,040
The plaintiff’s personal income tax returns reflect the plaintiff and his brother’s evidence that the income from the business was usually shared on the basis of a 50/50 split between them. There are some years where there is a slight variation but in the main, the division seems to be about 50/50.
The plaintiff’s personal taxable income for the years 1999 to 2005 is as follows:-
Year Taxable Income 1999 21,426 2000 16,620 2001 34,995 2002 34,000 2003 34,180 2004 48,092 2005 35,894
In addition to the distribution from the Pasvouris Family Trust in each financial year both the plaintiff and his brother said that from a very early stage they were in the habit of drawing five hundred dollars ($500) per week each by way of expenses from the operating account at the gym. Quite where that fits into the overall picture was never made clear, but the practice continued throughout including the period immediately after the motor vehicle accident on the 22March 2002 and up to the present time.
Both the plaintiff and his brother said that there was a down turn in business at the time when it became apparent to some of their customers that the lease at 145 Brebner Drive, West Lakes would not be renewed.
The problems with the lease first surfaced towards the end of the year 2003 when the plaintiff and his brother in fact took the lessor to the Magistrates Court, however that action only resulted in the lease being extended for a limited period and in 2006 the lease finally expired and the plaintiff and his brother were forced to relocate. It will be necessary to return to this issue, but for present purposes, it is relevant to note that the plaintiff and his brother acknowledged that the drop in gross income in the financial year ending June 2005 appears to reflect the uncertainty and turbulence associated with the necessity to move premises and the fact that by that stage some of the clients were aware of the fact that the gym at that address, at Brebner Drive, West Lakes was to be closed in the near future.
Until that time it appears that the business was doing well. When the financial statements were put to the plaintiff this exchange followed:-
QMoving along over to p.140, this is the 2004 financial year. Half way down – you have that page do you.
AYes.
QHalf way down look at total business income 531,020. Again it’s going up. Previously it was 487,709. It’s going up again.
AYes.
QAnd your expenses, 433,686, do you see that there.
AYes.
QSo your expenses are going up with the gross figure of your income.
AAs well, yes.
QSo there seems to be a bit of a relationship there between the two.
AYes their does.
QAnd your net income, look, you’ve made more money in that year, 97,434.
AThat’s what it says, yes.
QSo it wasn’t all doom and gloom for the business, was it, after the accident.
AIt doesn’t seem that way, no.
QAnd that net profit that I just showed you, that would get distributed between yourself and your brother.
AI think so.
QThat was a 50/50 and there was a small distribution to your brother’s children.
AI think so.
QSo things are getting better and better each year.
AIt looks that way according to these books, yes.
I note that both the plaintiff and his brother stated that it was necessary in the month after the accident to extend the hours of staff at the gym to some degree. There was a good deal of evidence directed to this issue of the extended hours of the receptionists and other staff in the period immediately after 22March 2002 and later that year.
The evidence of both the plaintiff and his brother was not particularly clear and neither of the two witnesses were able to point to any specific staff at any specific time, with the exception of Matthew Cuttler, and say that that person or those hours had been paid specifically as a result of the plaintiff’s inability to attend at work or in order to support him. The evidence in relation to the employee Matthew Cuttler, which came from Eric Pasvouris, is that Mr Cuttler was employed for a period of approximately two and a half months about 6 months after the accident. The wage records which form part of Exhibit P8D do confirm that for the period from 19 September to 25 September 2002, Matthew Cuttler was paid the sum of $149.82 in respect of three shifts where he worked on Monday evening from 5.00 pm to 8.00 pm, Tuesday evening from 5.00 pm to 9.00 pm, and, Wednesday from 5.00 pm to 9.00 pm.
There is also evidence from some of the pay records tendered by both the plaintiff and the defendant (Exhibits P8A,8B,8C,8D and Exhibits D8 and D9) that a number of employees were paid for work outside the core reception hours of 6.00 am to about 9.00 am on numerous occasions, both before 22 March 2002 and after that date.
The plaintiff and his brother said that some of the receptionists were paid to stay on after 9.00 am to cover for the plaintiff who was coming into work much later than his normal starting time after the accident, sometimes as late as 11.30 am.
In the light of all of the evidence, it is really very difficult to establish with any precision, what if any hours were worked in excess of the usual core hours by the employees who were then employed as receptionists at the gym, but I am prepared to conclude on the balance of probability that at least some of those additional hours in the year after 22 March 2002 were referable to the plaintiff’s non-attendance at work, or if he was at work, his inability to carry out all of the tasks formally undertaken by him after the hour of 9.00 am in the mornings.
Although the plaintiff says that this situation has continued right up to the present time, the evidence of the wage records themselves both prior to the date of the accident and subsequent show that reception staff often worked past the 9.00 am mark. In fact, it is difficult to glean from the evidence of the wage records tendered, any discernible difference in the hours worked by individual receptionists before and after the accident.
Both the plaintiff and his brother said that the plaintiff’s sister worked at the gym in the period when the plaintiff wasn’t there, and Eric Pasvouris himself worked extra hours to cover his brother’s absence.
The plaintiff’s evidence about the injuries he suffered in the accident is to be evaluated in the light of his previous medical history and the evidence he called to support his claims of ongoing disability as a result of the accident on 22 March 2002.
MEDICAL EVIDENCE – PREVIOUS ACCIDENT 28 SEPTEMBER 1996
By consent, a booklet of medical reports relating to the injuries suffered by the plaintiff in a motor vehicle accident on 28 September 1996 were tendered (Exhibit D1). By consent another booklet of medical reports dealing with the injuries suffered in the accident on 22 March 2002 was also tendered (Exhibit P5).
I deal first with the medical reports concerning the residual disabilities suffered by the plaintiff in the first motor vehicle accident. Mr Albert Russell in what appears to be a final report of 1 September 1997 proffered the following diagnosis.
Mr Pasvouris has suffered an injury to his cervical spine where we have a C4 a bony ridge flattening the anterior aspect of the thecal sac. At C5 – 6 he has a minor broad based posterior disc bulge with a bony ridge flattening the anterior aspect of the thecal sac. At C6 – 7 level he has a moderate central disc bulge deforming the anterior aspect of the thecal sac.
He has suffered a jar to his lumbar spine where he has L5 facet joint pain causing pain over the left sacro-iliac joint. This would be sufficient to have caused the pain in his left buttock which has now disappeared. The MRI scan showed minor loss of hydration of the L5-S1 disc with an annular bulge present.
Mr Pasvouris’ condition has become worse although his left thigh pain has gone. Prognosis is for continued disability at the present level. His condition has stabilised. He has been left with a residual disability estimated at 25% loss of function of the cervical spine and 20% loss of function of the lumbar spine.
Mr Lehonde Hoare a specialist surgeon on 7 April 1988 reported that in his opinion Mr Pasvouris was left with some 5% loss of the full, efficient and comfortable function of his cervical spine as a whole manifest as recurring headaches and recurring pain and discomfort down the left side of his neck into the left shoulder and left shoulder blade areas.
Mr Hoare also expressed the view that the plaintiff was left with some five percent loss of the full, efficient and comfortable function of his lumbar spine as a whole manifest as recurring pain in the lower part of his back.
In the surgeon’s view, that opinion should be taken as an estimate of the permanent residual disability suffered directly as a consequence of the accident on 28 September 1996.
Dr Peter Likos a general medical practitioner whom the plaintiff was apparently seeing at that time, reported on 1 April 1998 that Mr Pasvouris was complaining then of ongoing low back ache with intermittent cracking in his lower back, chronic neck pains and intermittent headaches and insomnia. He reported that the plaintiff had given up taxi driving due to the prolonged sitting nature of that work as well as the intermittent requirement to lift heavy luggage which apparently caused problems for the plaintiff.
In Dr Likos view the injuries to the cervical spine and lumbar spine region were likely to have long-term symptoms and he may require intermittent treatment in the form of physiotherapy or chiropractic treatment, swimming and analgesic medication. In Dr Likos view, the injuries left the plaintiff with a 15% loss of function of his cervical spine and a 20% loss of function of his lumbar spine. In the doctor’s view, these disabilities were permanent.
On 17 June 1998, Mr Michael Hone, orthopaedic surgeon reported to the compulsory third party insurer that in his view the plaintiff would be left with a permanent residual disability of a relatively minor nature, something in the order of 5% loss of function of the cervical spine and 5% loss of function of the lumbar spine.
That doctor reported that the plaintiff would benefit considerably from further treatment at that stage but that his general prognosis did not appear to be good as it was well over a year since the plaintiff had worked.
Ultimately the claim in respect of which those medical reports were obtained were settled by the insurer in August 1998.
The plaintiff in examination in chief referred to the accident of 28 September 1996 and stated that he had suffered injuries to the back and there were apparent disc bulges to the lower back for which he had physiotherapy for a while but there were no other injuries. The pain had settled but his back had never been good since that accident and he had been left with some impairment.
Whatever the prognosis of the various specialists in respect of the claim arising out of the accident on 28 September 1996, the fact of the matter is that the plaintiff did get on with his life. The gym was purchased approximately two weeks after the settlement of the insurance claim on 28 August 1998. The evidence of the plaintiff seems to be that he was able to carry out all of the duties involved in running that gym, resume his interest in motor sports and in particular commencing his involvement with the Demizio Lumina team after that time, resuming his social tennis and soccer involvement and other activities around the house.
The plaintiff said that he did not obtain any medical or other treatment for his ongoing symptoms. His only attendance at doctors appear to have been for the purpose of medico-legal reports in connection with his damages claim.
MEDICAL EVIDENCE – ACCIDENT 22 MARCH 2002
Dr Gordon Ormandy
Dr Ormandy is a general surgeon who after retiring from his practice as a general surgeon became a medico-legal consultant. In that capacity he saw the plaintiff on three occasions in 2004, 2005 and 2006.
In his first report Dr Ormandy expressed the view that the plaintiff had sustained a significant injury to his left forearm and hand in the accident. The plaintiff was still having pain associated with those injuries at the time of examination and in Dr Ormandy’s opinion he thought those symptoms of pain would persist. Dr Ormandy noted that there was some restriction of movement of the left wrist which had the result of weakening the power of the grip with his left hand.
In relation to the complaints of the plaintiff concerning his right hand the doctor expressed the view that the soft tissue injuries to the proximal interphalangeal joints of the index and middle fingers of the right hand did not leave the plaintiff with any functional incapacity in relation to his right hand.
Dr Ormandy also considered that the plaintiff suffered from a chronic ligamentous strain of the cervical spine which was caused in the accident by the plaintiff falling on it and striking his head and straining his neck.
In Dr Ormandy’s opinion the plaintiff had a permanent 10% impairment of his cervical spine and a permanent 15% loss of the full and efficient use of his left upper limb below the left elbow.
In a second report dated 24 February 2004, which was obviously requested consequent on his report of 22 January 2004 Dr Ormandy expressed the view that he thought the plaintiff had reached the point of maximum medical improvement and that the impairments of the cervical region and the fractures of his left ulnar and the fifth metacarpal were the only ongoing significant impairments suffered by the plaintiff. In that report and obviously in response to specific questions from the plaintiff’s lawyers Dr Ormandy stated:
Firstly he is clearly carrying out his current duties and probably will be able to continue in such duties. Although some of those duties require the lifting of weights of chemicals and some gymnasium-type weights, whilst such activities may cause from time to time some symptoms of aching in the injured areas such symptoms will probably respond quickly to rest and analgesics and should not exclude him from such intermittent tasks.
In that report he further expressed the view that the plaintiff would be advised not to use his left arm if that was required to lift or manoeuvre any heavy materials or objects. He considered that the plaintiff would be quite capable of working as a taxi driver on a full time restricted basis.
Dr Ormandy provided a third report in relation to the plaintiff on 3May 2005 after examining him again on the same date. In addition to the examination Dr Ormandy referred to the fact that the plaintiff had also provided him with a written account of his current symptoms and some ongoing work restrictions and restrictions to his domestic and social sporting and recreational activities.
Dr Ormandy also noted that in the intervening period the plaintiff had not sought any treatment for any of the injuries sustained in the accident.
At that time the plaintiff was reporting the same symptoms in his left arm, left wrist, right hand and neck but increased headaches.
Dr Ormandy adhered to his earlier opinion in that report and added that it may be advisable for the plaintiff to consult with a doctor concerning his reported depression.
Although the plaintiff was reporting symptoms of low back pain Dr Ormandy was of the view that there was no measurable impairment of his lumbar spine as a result of that.
He added this again, clearly in response to specific questions:
When in my report of the 24th February 2004 I referred to his clearly carrying out duties at the gymnasium and being able to continue with those duties it may be unreasonable for him as I suggest to continue with the heavier gymnasium type activities and to treat himself with rest and analgesics. He has clearly opted to avoid altogether such physical activities. The restrictions in respect to his former work as a storeman remain the same.
Dr Ormandy saw the plaintiff one further time on 17 January 2006 as a result of which he reported that the plaintiff’s symptoms remained the same as did his opinion as to the permanent impairments which he had expressed in his first report together with a supplementary report expressing the view that the state of his left wrist with a metal plate inserted in it amounted to a “body image impairment of 1%”.
Dr Ormandy was cross examined closely as to the various opinions which had been expressed by him in his reports. He agreed in cross-examination that the plaintiff had not told him that he had suffered a previous injury to his neck in the accident on 28 September 1996. He said that the only information that he had about that accident was that he had suffered a back injury which had led to some ongoing low back pain leading up to the time of the most recent accident. Dr Ormandy said that the failure of the plaintiff to inform him about the ongoing symptoms in relation to the neck injury was an important matter. In his view given the information contained within the medical reports of Dr Likos, Hone, Russell and Hoare concerning the after affects of the accident on 28 September 1996 he would revise his opinion in relation to the neck impairment down to 5% instead of 10%. When questioned further about the claimed injury to the cervical spine Dr Ormandy had this to say:
QWhat sort of effect, in your opinion, will this neck pain have on this plaintiff’s ability to carry out his work?
ALittle or none. My opinion as to his work capacity is based entirely upon his left wrist.
QSo you have no regard at all to his neck in – I did not have any regard to his neck or his back in my opinion as to whether he could carry out the duties, but I have now given evidence in this court.
In examination Dr Ormandy confirmed his view that the plaintiff should avoid any activities that would be likely to cause pain in the left wrist. He was asked about what he referred to as the refinement of his opinion between the date of the report of 24 February 2004 and the conclusion he drew in the report of 3 May 2005 (refer to above) he said:
A........So I have obviously received more descriptive information as to what he did, whereas when I said in my earlier report that I thought he was clearly doing duties and couldn’t continue to do so, I based the continued to do so on the basis that he was doing his normal duties but I did not at that stage know what those duties were.
QWhen you refined your opinion in your subsequent report was that because the plaintiff was telling you he couldn’t do it or is that on the basis of your examination.
AI refined my report based upon the information that I now had as to what he was physically required to do with his left wrist and, therefore, an examination of his left wrist and my understanding that such activities would be likely to cause pain at the site of the injury of his left wrist.
He then reiterated his view that there were some tasks involved in the pool maintenance and the stocking of the refrigerators that in his view he would be wise to avoid as those activities may aggravate the left wrist. He was then asked:
QWould it cause him to be away from work, because what we have here is a situation where the plaintiff comes to us and says he is working about 13 – 18 hours at work and he attributes that because of the injuries he sustained in the accident. Really, when we go through the list of duties that this plaintiff performs, in the whole scheme of things the heavy physical tasks don’t occupy a great deal of his time and what I want to know from you, is whether there is any objective evidence to say that the plaintiff couldn’t be there on full time hours if he avoided some of the heavier tasks.
Objection .....
QDid you understand that question
AYes and I see no reason from my physical examination or from the history to say that he could not attend his normal hours in that place but just during those normal hours it would be wise for him to avoid the activities that we have specified.
At the conclusion of his evidence Dr Ormandy was asked:
QSo if you knew that this plaintiff was playing tennis, once a week, and the experience, according to Dr Magasdi of “some aggravation of the left wrist but he was able to carry out a game of tennis” wouldn’t that cause you some concern.
AHave we now left the consideration of the neck and we are now onto the left wrist, are we?
QYes. Well it’s a whole body approach, isn’t it, that we are looking at the neck, the back, the left wrist.
AWell, I repeat, I have done it so many times but I hope I am not boring the court; I repeat, that my opinions about this man were based upon a consideration that he had ongoing pain in his neck as a result of two accident. I gave him a 10% impairment of his neck which I considered to be reasonably low but that I consistently thought that the problem in his left wrist and hand was a significant ongoing problem and that it brought about certain restrictions. And I note in this particular paragraph that you have drawn my attention to, and it would appear even scolded me for not having read it more thoroughly and taken it into account, that his problem with playing tennis, even once a week, and it was reduced to once a week because it gave him pain in the left wrist when he did a two handed back hand, you know, all it does is support my view of his left wrist. As far as his neck is concerned, OK, he said that Dr Magasdi says that it is surprising he could serve and it didn’t hurt his neck. I don’t think that alters the significance of my report. I don’t know that you are suggesting that but I don’t think it alters that, because, you know, I haven’t been all that impressed with this man’s complaints of pain. He has pain, it is subjective, I can’t put quantum value on it and neither can anybody else.
QAnd that is the difficulty in this matter, isn’t it.
AWell, if the court is asked to apportion compensation for pain and suffering it may be a problem but I think it is a minor problem.
Dr Ormandy’s view therefore seems to be that the only significant injury in respect of which there is any ongoing disability is the injury to the plaintiff’s left wrist and arm. There is no discernible impairment in relation to the lower back and indeed the level of back pain in Dr Ormandy’s view had returned to what it had been prior to the motor vehicle accident by the date of his first examination on 22 January 2004. Dr Ormandy found that the plaintiff had suffered a chronic ligamentous strain of the cervical spine, which he assessed as a permanent 10% impairment of the cervical spine, even though he appeared to revise that down when given the information about the earlier accident. However, on any view of the matter Dr Ormandy’s view was that this was not a significant impairment and did not affect his capacity to carry out his duties.
Dr Creston Magasdi
Dr Creston Magasdi is a C.A.S.A. Aviation Examiner and medico-legal consultant who told the court he had spent most of the last 25 years doing medico-legal work, particularly injuries work at his practice at North Adelaide.
Like Dr Ormandy he saw the plaintiff on a number of occasions, five in fact between 10 September 2002 and 25 January 2006 for the purpose of medico-legal reports in connection with the plaintiff’s claim.
The first time Dr Magasdi saw the plaintiff was on 10 September 2002 some six months after the accident. At the time of the examination the plaintiff was still complaining of occipital area headaches once every three or four days, periodic tightness, impaired mobility in the musculature at the back of the neck with some soreness intermittently in the trapezius areas in the back of the neck, some periodic deep seated aching in the left lower arm generally brought on by physical activity or changes in the weather, grip strength and function of the left hand improved but still reduced to what it was normally and some impairment in the use of the right hand particularly with some hyperextension over the proximal interphalangeal joints of the 3rd and 4th index fingers of the hand. At that time he told Dr Magasdi that he was no longer taking any medication and had stopped physiotherapy in July.
As with Dr Ormandy the plaintiff did not report any neck injury as a result of the motor vehicle accident of 28 September 1996 reporting only a lower back injury which took some time to get better from.
On examination on that day the doctor reported that rotation of the right and left neck movements were normal, flexion was 5 – 10% reduced and extension 10% reduced and uncomfortable, the cervical arc was good in range, free and not accompanied by any significant spasm pain and lateral flexion equal and normal in both directions. He found slight tenderness in the soft tissue surrounding the TI spine at the base of the neck.
Dr Magasdi expressed the view that the plaintiff had suffered from a musculo ligamentous sprains in the neck as well as fractures in the shaft of the left ulna in the carpus and in particular the 5th metacarpal of the left hand, with some soft tissue ligamentous sprains and possible hyperextension injuries to the right hand as well.
Dr Magasdi noted that it took the plaintiff some two – two and a half months before he could commence reasonable return to his physical work as well as other activities. He thought that he was making reasonably good recovery but the situation had not yet stabilised.
On 13 February 2003 some five months later the plaintiff reported approximately the same symptoms to Dr Magasdi however Dr Magasdi noted in that report
I understand that he has resumed playing tennis but reduced the frequency to once weekly and where it most affects him strangely is not in serving but in the double handed backhand activity where the pain in his left arm becomes progressively worse and generally aches afterwards.
He expressed the view in that report that:
I suspect that he would have some ongoing residual impairments and symptoms but I am hopeful with his very positive attitude, he may overcome these still and as such I would perhaps feel that a final assessment should be deferred for a further few months.
In 9 October 2003 Dr Magasdi saw the plaintiff again and noted that the plaintiff was still left with a number of residual symptoms but noted that unfortunately the plaintiff had not followed his advice to have ultrasound application to the left arm and had not been using any anti-inflammatories.
Dr Magasdi recommended that he have this treatment and also that he increase his fitness in the form of swimming, walking and tennis and try to loose about 20 –25 kilograms in weight. He considered at that time that the overall impairment in terms of percentage assessments of the whole body was some 6 – 7%.
Dr Magasdi saw the plaintiff on two subsequent occasions being 2 May 2005 and 25 January 2006. At the examination on 2 May 2005, Dr Magasdi had received the letter (Exhibit P5A) referred to in evidence, which the plaintiff sent to Dr Magasdi detailing his current complaints. At that stage he reported symptoms including headaches, which had increased to 4 – 5 times per week, intermittent tightness and soreness at the back of the neck (apparently the left side was worse on this examination even though on the previous two occasions the right side had been worse). Some tenderness and aching in the mid-zone of the left lower arm where the plate was, periodic soreness and aching in the lower lumbar back, soreness and pain in the left hand and some difficulty and soreness in the right hand as well. The plaintiff was reporting reduced grip strength in both hands. Dr Magasdi noted the plaintiff was still overweight and did not appear to have taken any medication nor had any medical treatment, physiotherapy or chiropractic treatment since the date of his last examination.
At that stage Dr Magasdi noted:
I would also confirm my original estimate that he is left with some residual symptoms, some debilities in his work, social, fitness activity, and probably also with some degree of a post traumatic stress reaction with some depressive manifestations, hence a loss of interest in his hobby activities, in his social activities, and which probably would benefit from a course of either psychological counselling or similar, although I would not feel that he would be a candidate for putting him on anti-depressant medication.
By the date of the last examination on 25 January 2006 which appears to have been just prior to and for the purpose of giving evidence at Court the plaintiff had reported same or similar symptoms, and in addition, an ongoing generally disturbed sleeping pattern as well. Once again the doctor noted that in spite of the complaints the plaintiff did not appear to be taking medication or analgesics for pain control, had not had any further treatment, was continuing to work with his brother at the gym where he coped with some of the work but is not able sometimes to demonstrate fitness activities or use some of the equipment.
Once again Dr Magasdi confirmed his opinion that the plaintiff had been left with a permanent residual impairment in many of his activities which he was prepared to assess at 7%.
Dr Magasdi expressed the view that removal of the plate in the plaintiff’s left wrist may reduce some of the problems but it certainly wouldn’t cure the problem entirely.
In cross examination in court Dr Magasdi appeared to be quite annoyed that he had not been given the earlier medical report in relation to the plaintiff’s injuries after the first accident on 28 September 1996. However he said he had been told by the plaintiff about the previous neck injury, he had told him that it was a transient injury and did not leave him with any long-term problems. Dr Magasdi said even though that wasn’t included in his report he remembered that the plaintiff told him that.
He was asked about the significance of those earlier reports and had this to say:
Q.......he gave you a history of the first two weeks to a few months of neck pain. Isn’t that what you said to us before, from your memory.
AThis is not what he said to his examining doctors at the time and, I mean, everybody realises that a client will perhaps even embellish slightly his current problems which refer to that case. He will not embellish them when he has another case.
QYou see that a lot, don’t you?
AAbsolutely.
Dr Magasdi was asked for his comments about the change in reported symptoms between the date of his first examination in 2002 and the examination in May 2005.
QLets put aside the subjective complaints of the plaintiff. From an organic basis, is there an explanation for why his condition is deteriorating, or do you think it might be because of non-organic factors.
AIf you remember when I said to you earlier when you deal with a client, particularly – accident, they tend to somewhat embellish at this time, I found this letter to be that. (exhibit P5A). That is why I sent it on. I have no doubt that this man had some realistic problems. By this time I think he magnified those problems. He was suffering a degree of depression, frustration and he – I quite agree, I think that he probably presented a much bigger problem than he has had previously, yes.
QMuch different than you found on your examination.
AYes.
QAs far as you are aware he really hadn’t had much treatment in the past, had he up until 2005. Apart from a period immediately after the accident he really hadn’t had much treatment.
AWell, I don’t believe he needed much more treatment. I think for this type of injury 6 – 10 weeks of physiotherapy after which some fitness activity is all that you need.
He was asked concerning the plaintiff’s capacity to go back to work:
QWhen you first examined the plaintiff in September 2002....... did you feel that the plaintiff could work full time hours?
AAt the time when I saw him 6 months after the injury
QYes
ADepending on what type of work you mean.
QLets say if his work mainly consisted of some marketing, some bookkeeping, some computer data entry, some work at a counter behind the – at the gym. There was some pool maintenance work. He was checking the pool levels, the chemical levels in the pool. Do you think he would be capable of performing that work.
AI seem to remember that he said to me that he had difficulty in the pool area which he had difficulty using scoopers and vacuum things, but he could test the water, but he found it difficult to cope with full service and that was the main area complained of at that time. All the other work he was coping reasonably well, but he did reduce his working hours, at that time. But the answer to your question do I feel that he could have worked full time, I don’t know what full time is in a self employed position, but he could have worked 30 to 40 hours a week probably, yes.
.... I would have recommended to him to avoid heavy lifting, bending and certain activities with his left hand and arm, which was still quite painful and swollen.
Dr Magasdi was asked what he meant by the whole body permanent impairment in the order of 6 – 7% and he explained that he had included in that assessment the problems with the lower back, the neck and the left wrist. He said that if he was asked to look at the neck he would have probably said about 3% in relation to that. He was then asked about the reference to depression.
QI think in your report you referred to psychological factors or depression.
AThey were only my impressions, I’m not a psychologist or psychiatrist. All I can say is what I felt from his explanation what was going on, yes.
QSo it wasn’t a diagnosis of any sort.
ANo, and I did I think at some stage recommend that he probably should be assessed by a psychologist for that purpose.
Professor Robert Bauze
The defendant called Professor Robert Bauze. He saw the plaintiff on 14 June 2005 and later provided a report.
Professor Bauze, was a specialist orthopaedic surgeon, who practised orthopaedic surgery full time from 1969 until about two years ago. In the last two years he stopped operating and began to concentrate on medico-legal reporting. He told the court he had done some training in that regard and as a result was an accredited or approved assessor for the Motor Accident Authority disputes in New South Wales for impairment, WorkCover and Comcare.
Professor Bauze concluded that the plaintiff sustained a fractured base of the left fifth metacarpal, fractured shaft of the left ulnar and sprains of the cervical spine and lumbar spine in the motor vehicle accident on 22 March 2002.
In Professor Bauze’s opinion he presented in June 2005 with considerable complaints of pain and a weakness in his left hand and arm which Professor Bauze was unable to substantiate by examination or investigations. In the Professor’s view there was some comparative stiffness in his left wrist compared to the right and he did have uncomfortable catching and sensitivity in the ulnar over the area where the plate was as a direct result of the accident. The pain experienced by the plaintiff in the right fingers was in Professor Bauze’s opinion an aspect of hyper-mobile ligaments and not related to any injury.
Professor Bauze considered that the complaints of the plaintiff in regard to his lumbar spine and his cervical spine were not supported by physical examination or by the x-rays and there was very little ongoing impairment of function evident.
In Professor Bauze’s opinion, the relative loss of movement in the left wrist compared to the right did not amount to an impairment of function.
Professor Bauze was of the view that there would be some further improvement at least in the comfort of his left forearm if the plate and screws were to be removed. In the Professor’s opinion the plaintiff had the full capacity to work.
In cross-examination Professor Bauze was questioned about the view he formed that there was some decreased left hand grip which was not organic. He explained what he meant by that which was that he thought the plaintiff was not trying hard enough in the test that he administered. He was asked:
QHow did you measure the grip so as to reach that opinion?
AThat’s my forty years experience. That’s all I can say.
QWhat do you do? Do you get him to crush a can or something? How do you measure his strength?
ANo, fingers. You give the person your two fingers and you say squeeze my fingers and when someone is not trying hard enough it is very easy to tell and sometimes – there is two sorts of responses you get with – abnormal responses. One would be when it just feels different and they’re just not trying. Because someone can say I can go, I am trying hard. Otherwise you can detect contraction of all of the muscles of the hand very forcefully but with no grip. When I am doing that I can’t grip but that is not true, obviously. Otherwise they hold your hand and it is just nothing. So this person, I thought, was not trying hard enough. Not that he was having an abnormal response as it were with the odd grip.
The report of Kathy Trankalis of 7 March 2003 and the results of the tests she undertook using the Jamar dynamometer were then put to the Professor. Specifically it was suggested to him that there was some built-in facet of the test to detect whether proper effort was being made. The Professor said this:
QYou don’t agree with that.
ANo. The proper effort is – assessment of proper effort relies really on the observer who is conducting the test. The dynamometer test in my opinion does not give an infallible objective assessment of grip strength. To know that a person is providing optimal effort requires judgment the same as I’m saying my test of the person’s fingers is a test of judgment of whether the effort is appropriate or not. So I don’t think that that is correct. No. I would be surprised if, and maybe I am wrong, but I would be surprised if Kathy Trankalis would dispute that.
Later in his cross-examination Professor Bauze was asked if in his opinion the opinions of Dr Creston Magasdi and Dr Gordon Ormandy were reconcilable. He had this to say first in relation to Mr Ormondy and then in relation to Dr Magasdi:
AWell yes because in fact I think that he is saying the same as me and he is just – well it would seem to me that he is giving some weight to complaints, which are not really backed up by his own examination. I think his examination and mine and our general impressions and conclusions are the same except, a belief of a degree of impairment, which is not based on guides which I am using.
QI will ask you the same question in relation to the last two reports of Dr Creston Magasdi …
AI don’t think there is a lot of difference.
QBetween the three.
AI think the three of us are saying on objective findings virtually the same thing.
He was then asked:
QBut you accept that there could be pain that he has in his wrist, his right finger, his neck and his back. He could have had those now following from the accident, couldn’t he?
AHe could have yes.
QIf he has painful areas, I suggest to you that it would be reasonable for him not to engage in activities to aggravate them but would you’re answer be, well perhaps he should otherwise he is doing nothing.
AWell, yes, it’s about right. Not just perhaps he should, he must, otherwise he will – well, see, I actually think he is probably doing more anyway, but if he isn’t doing anymore, he should because otherwise he is going to be an invalid the rest of his life.
QWhen you just said to Her Honour you think he is doing more, do you mean to say that he is lying to you about what he can and can’t do?
AAbsolutely.
QIs he lying to you about the grip strength as well?
AYes, that’s what I said.
QYou put it that bluntly, but that’s what it means then. That’s all right.
AWhen someone isn’t giving full effort then that means he is lying.
Ms Kathy Trankalis report 7March 2003
The plaintiff relied on a report of Ms Kathy Trankalis arising out of an evaluation of the plaintiff carried out on the 7March 2003 (Exhibit P12A). That report was admitted into evidence by consent.
The plaintiff sought to tender a further report of Ms Trankalis dated the 17January 2006 (MFI 12B). After hearing argument I declined to admit the second report of Ms Trankalis. When the hearing of this trial resumed again in May 2006 it became apparent that contrary to earlier reports that she had suffered an injury in a motor vehicle accident that in fact she had been admitted to a private hospital suffering from a depressive illness and had apparently been unfit for work as a result of that since the 2February 2006 when she was first examined, it would appear, by a doctor.
The second report of Ms Trankalis which on its face indicates that she assessed him again on the 17January 2006 and prepared a report for signature on the 1February 2006 is not signed by her, but is signed by a staff member. In the circumstances I cannot be confident that Ms Trankalis actually adopted that report and I so concluded because of the proximity of her illness to the date when this report appears to have been completed. It seems to me that very little weight in any event could be attached to her report in the absence of the witness being called. The opinion expressed by Ms Trankalis and her conclusions in the first report based on her examination and the plaintiff’s own report to her have been very much in issue in this trial. Given all of these matters I did not consider that it was in the interest of justice to admit her second report.
As to the report of the 7March 2003 (Exhibit P12A), I note that this evaluation was carried out approximately one year after the accident and to that extent events have overtaken that report. In addition there are also much more recent reports available from the other doctors who examined the plaintiff.
I have some reservations about accepting the conclusions of Ms Trankalis in that report of the 7March 2003 (Exhibit P12A) in the absence of the witness being cross-examined in court. It seems to me, in the light of the comments made by Professor Bauze as to at least one of the tests she performed, that clarification and explanation as to the methodology employed by her, is called for, and in the absence of that I do not consider that I can place much weight on that report.
In any event I note that Ms Trankalis appears to have relied to a great extent on things that the plaintiff told her as to his condition at that time.
In particular one of Ms Trankalis’ conclusions which she expressed at p 10
It was considered likely that Mr Pasvouris would require assistance with tasks above shoulder height and fine manipulation and/or application of force, including hanging out clothes, mowing lawns, pruning, cleaning windows, climbing a ladder to clean the gutters and so forth, if living alone.
In the light of Professor Bauze’s opinion which I accept and in the light of the evidence of some of the plaintiff’s more recent activities including playing tennis, I do not accept that that opinion, even if valid at the time, would be valid today.
Findings and Conclusions
The plaintiff’s evidence was that after discharge from hospital he continued to suffer pain in a number of areas in his body. In particular he said that he suffered lower back pain after the accident. He did not mention that in his first claim to the insurer on the 3April 2002 possibly because his injuries to his hand were causing him more pain at that stage. He said that the tightness to his neck was a lot more intense after the second accident and although his right hand was no longer a problem by September of 2002 he knocked it in a certain way it did hurt. In his left hand he was still experiencing deep throbbing pain in the left ulna as at September 2002. He was unable to explain why he did not complain to Dr Magasdi in September of 2002 about the lower back pain. He thought he would have made a complaint but when the report of Dr Magasdi of 10 September 2002 was put to him he could not remember why he would not have mentioned it. He did agree in cross-examination that by about 6 months after the accident the pain was not so severe generally and that he was on the road to recovery.
The plaintiff said that he went back to work about three months and two weeks after the accident. At that time he still had anti-hyper extenders on his arm and all he was able to do at that stage was punch numbers into a computer with one finger and give out locker keys for client’s of the gym. By September of 2002 he said he was building up to about 13 to 18 hours per week.
He started doing his own rehabilitation at about that time by swimming and doing exercises in the gym pool at night. The plaintiff claims that he played tennis only once in that twelve month period. This statement is in conflict with things he told Drs Magasdi, Ms Trankalis and Ms Kathy Shields. When these inconsistencies were put to the plaintiff he maintained that each of the three experts must have either misunderstood him or got it wrong because he was adamant that he had not played tennis more than once in the twelve month period after the accident.
The plaintiff called a friend of his named Nicholas Desyllas who gave evidence about the frequency with which the plaintiff played both indoor soccer and tennis prior to and subsequent to the accident. The evidence of Mr Desyllas was not particularly helpful only because the dates when he recalled doing these things with the plaintiff were very imprecise. For example he was not able to even remember when he stopped playing tennis, he thought it was 2003/2004 somewhere there. He gave evidence about one occasion when the plaintiff was obviously still in the plaster mould from the hospital in 2002 where he had taken the cast off and tried to play tennis and that was the only time that he had seen him playing tennis after the accident.
In this area I find the plaintiff has been exaggerating the effect of the injuries on his social life. There is no other explanation for three experts recording that he was playing tennis in that year if he hadn’t told them he was.
The plaintiff said twelve months after the accident he was still getting headaches after sitting in front of a computer for any length of time. By this stage he said he was doing about 15 to 18 hours work a week.
The plaintiff did agree that the most significant injury he suffered was to his hands but that after the accident his whole upper body was sore. He couldn’t tell if it was the neck, back or chest.
He said that the wires were removed from his wrist just after he went back to work about three and a half months after the accident.
The plaintiff gave evidence that during this period of time when he was building up his hours that he and his brother employed receptionists for extra hours in the vicinity of two to three hours a day. In addition to that, he said that a man called Matthew Cuttler was also employed in about September of 2002 specifically to assist during the evenings and because he was unable to spot for members at the gym at that time.
The plaintiff said that after about twelve months after the accident his condition stabilised somewhat and so did his working hours, which were usually between 13 to 18, perhaps up to 20 hours a week sometimes.
The plaintiff in contradiction to his brother said that the gradual build up of hours to that level of about 18 to 20 hours has stabilised since about March of 2003. His brother Eric Pasvouris said that in 2004 his brother had built up the hours to about 18 to 20 hours but by 2006, he had built up his hours to a good 30 to 35 hours per week.
With regard to the duties he formerly performed around the gym the plaintiff’s evidence was that he now is unable to do a number of activities. For example, he is now using smaller bottles of chlorine when maintaining the pool. Instead of carrying one twenty litre bucket he now breaks that task down into a number of small six to eight litre buckets. He can still do work on treadmills but anything which requires two hands or any twisting motions with his hand he has difficulty with. In addition if he does undertake those tasks it aggravates his left wrists and he finds that it aches for days. His brother Eric now scrubs the pool and does a lot of the maintenance work. The plaintiff doesn’t take any overhead globes out anymore. The plaintiff also needs help to lift weights in the gym room.
The plaintiff’s explanation for the reduced hours he spent at work was in the main that he suffered headaches three to four times per week and that he was also embarrassed that he could not lift weights and assist clients, particularly female clients as he had in the past.
He did agree that spotting for members in the gym did not occupy a huge part of his working week and that the activities which require heavy lifting and jobs of precision which hurt his hands also did not constitute the bulk of his daily duties at the gym. In fact the plaintiff in cross-examination agreed that these heavy activities sometimes occupied thirty minutes a day, perhaps less.
After the reports of the medical specialists referred to earlier in these reasons were put to the plaintiff he conceded that in fact one of the main reasons for quitting taxi driving in 1998 was because he was looking for lighter work as a result of the aftermath of the injuries he had suffered in the 1996 accident. He agreed that some of the problems he had experienced from the injuries after the 1996 accident continued up until the 22March 2002, in particular prolonged sitting in front of a computer screen, headaches which he was experiencing at two to three times per week prior to the accident and some heavy lifting.
In particular he agreed that one of the reasons that he had gone into the gym business after the first accident was so that he could work at his own pace and he did agree that heavy physical work was a very small part of his working week at the gym.
Both the plaintiff and his brother Eric said that the business was doing quite well and in the years between 2002 up until the present time the business was doing better each year until they ran into the hurdle of the expired lease and the necessity to move premises. That business caused a great deal of stress to both the plaintiff and his brother. There was litigation in 2003 which was not resolved in a particularly satisfactory way because the plaintiff and his brother were still on notice to quit the premises at West Lakes which finally happened earlier this year.
The plaintiff has not sought any medical treatment for his various symptoms. The only medication that he has taken is panadeine forte in the immediate period after he left the hospital. He tries not to even take painkillers.
The plaintiff said that he has not been out in the boat he and his brother purchased prior to the accident and has not been fishing since the accident. He has ceased to have any interest in the racing team that he was formally involved in.
The plaintiff agreed in cross-examination that he did not disclose to doctors Ormandy, Magasdi or Professor Bauze his previous history of ongoing intermittent neck pain and lower back pain as a result of the first accident.
I note in this regard that doctor Ormandy told the court that he did not assess any residual disability in the lower back as he didn’t think it had been made any worse by the accident. Professor Bauze was given no history of any prior back complaints. And in his examination on 10 September 2002 the plaintiff reported no lower back pain to Dr Magasdi.
On the basis of the evidence before me I conclude that the plaintiff did suffer a temporary exacerbation of his pre-existing neck and back injuries from the motor vehicle accident in 1996. On the basis of the evidence however I find that the exacerbation of those injuries and the symptoms from it had subsided after a period of about twelve months after the accident. There is no evidence to suggest that the symptoms which the plaintiff now suffers at least in regard to the neck and the back are materially different to the symptoms he was experiencing prior to the accident on 22March 2002.
The evidence does however persuade me that the plaintiff has been left with some residual disability in the left wrist.
Dr Ormandy as late as January of 2006 noted that the base of the fifth metacarpal was tender to palpitation and still slightly swollen. Compared with the right hand the grip of the left hand in his view was reduced. I note that the plaintiff is a right handed person.
Dr Magasdi in his latest report of January 2006 made similar observations expressed in slightly different terms. Even Professor Bauze noted that he was continuing to experience pain in the left wrist in the area of the ulna, during part he thought to the plate underneath the scar area. This would have the effect of causing him problems and discomfort, especially if he got hit in that area. The difference between Professor Bauze’s opinion and the two doctors called on behalf of the plaintiff at least with regard to the injury to the left wrist appears to be semantic rather than substantive.
I find on the basis of the whole of the evidence that the plaintiff does have an ongoing disability as a result of the injury to the left wrist. The area hurts if he accidentally hits it in the course of his work or even if he sleeps on it at night. The effect of that injury is that the plaintiff needs to avoid some activities which require fine work involving precision movements with the hand. Examples of some of the work that the plaintiff would find difficult to perform now would be some areas of the pool maintenance and general maintenance of the spa and sauna, particularly changing the lights and aspects of the plumbing. To some extent the effects of the ongoing disability in the left wrist do overlap with the residual effects of the neck and back injuries which the plaintiff suffered prior to the accident on the 22March 2002. However, I accept that overall the additional disability as a result of the injury to the left wrist has left him unable now to perform tasks in and around the pool and spa which prior to the accident he was performing. I accept also that one of the reasons he now no longer does spotting for gym members is directly as a consequence of the injury to the left wrist. Once again that was a task that he performed from time to time prior to the accident.
I do not accept that the hyperextension of the right hand which was noted by both Professor Bauze and Dr Ormandy to be a congenital problem is as a result of the accident.
Dr Ormandy was the only doctor to place a percentage on this functional disability of the left wrist in the order of about 15%. This finding needs to be reflected in the award for damages for past and future pain and suffering. It is of course relevant as well to the plaintiff’s loss of earning capacity.
I find that the plaintiff did return to work part time three and a half months after the accident. At that time he was working about thirteen hours a week which he gradually over the next six to twelve months built up to eighteen to twenty hours a week. I do not accept that his working hours have been stable at that figure ever since. I find that the plaintiff is either working now thirty to thirty five hours a week, or if he is not, then his failure to complete a relatively normal working week is not due to the results of the accident on the 22March 2002. Moreover, I find that this has been the position since early 2004.
I find that the plaintiff is able to work full time, albeit that there are some activities which he should avoid, including fine work involving any precision movements of the hands.
I accept the evidence of both the plaintiff and his brother that a relatively small component of the plaintiff’s working week was involved with pool maintenance, the lifting of weights and other activities from which the plaintiff is either now somewhat restricted or completely unable to perform. I observe again that some of the disability that flows from the injury to the left wrist overlaps to some extent with the pre-existing disabilities from the earlier accident in particular the plaintiff’s preference for doing lighter work and avoiding any activities which require heavy lifting – such as carrying twenty litre containers of chlorine.
ASSESSMENT
I turn now to the assessment of damages.
Non-economic Loss – Pain & Suffering
This action is subject to the provisions of s35A of the Wrongs Act 1936 (SA) which, though now repealed, is applicable to the assessment in this case. The sum prescribed by the Act in relation to this claim is $1710. So, according to the severity of the injuries and the effect of them on the plaintiff’s life a numerical value of between 0 and 60 is to chosen and applied to the prescribed sum. For the reasons stated elsewhere I have concluded that the plaintiff has some ongoing pain and disability in the left wrist as a result of the accident. I do not accept that the other symptoms complained of by the plaintiff arise as a consequence of the accident on 22 March 2002 although I do accept that there may have been some temporary exacerbation of the ongoing cervical pain and headaches which the plaintiff had been experiencing since 26 September 1996. I do not accept that the symptoms of headaches and cervical pain now nor indeed the ongoing complaints of back pain after the accident are materially different from the ongoing symptoms that the plaintiff was experiencing prior to 22 March 2002. In my view an appropriate numerical value to apply to the prescribed sum is 8. So the allowance for past and future pain and suffering and loss of enjoyment of the amenities of life becomes $13,680.. There is no interest to be added to this sum.
Economic loss
Past Loss of Earnings
In the light of the plaintiff’s concession that there has been no loss of wages since the accident, principally because of the contribution made by family members including his sister and his brother during his period of incapacity there will be no award for loss of wages.
Nevertheless, I do accept that there was a period of approximately six to twelve months when either Receptionists or another person was employed to cover for the plaintiff’s non-attendance at work by 9.00 to 9.30 in the mornings and also there was a period during which the person Matthew Cuttler was employed to cover for the plaintiff at nights in the gym. I have already remarked elsewhere that it is really not possible to assess with any precision the precise quantification of those hours given the state of the evidence before me. However I indicate that I have for the purpose of providing some guide to my assessment used a figure of an extra two hours per night for five nights a week for two and a half months in relation to the employee Matthew Cuttler and a figure of an extra two Reception hours per day for a period of approximately twelve months from the 22 March 2002 by way of extra hours worked directly referable to the plaintiff’s non-attendance at work by reason of his injuries.
The problem under this heading of damages is that the business bore the expense of the additional outlay during that period of incapacity of the plaintiff. The plaintiff shares fifty percent in the net outcome of the business activities of the gym so it is notable that fifty percent of this extra expense is borne by the other sharing partner the plaintiff’s brother Husher v Husher (1999) 197 CLR 138.
Whilst I accept this evidence it is obvious from the foregoing that I have reservations about the detail and doing the best I can on all of the evidence and using figures referred to above I award the plaintiff the sum of five thousand dollars ($5,000.) under this heading of damages. The plaintiff is entitled to interest on the component of past economic loss calculated from the time the liability arose until today’s date. Since the entirety of that loss crystallized fairly quickly after the accident (within twelve months) I have not applied any discounting on account of its slow accumulation. The period is now four and a half years since the accident and applying a rate of 6.5% according to the Third Schedule of the Supreme Court Rules I make an allowance of interest in the sum of $1,465.
Future Loss of Earning Capacity
Any assessment of the plaintiff’s future loss of earning capacity must involve findings as to his current employment and the likelihood of that employment continuing. As the court pointed out in Husher (supra)
Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning “sole traders” or “partnerships” or “wage-earners” or “trading trusts”, and then attempting to deduce some rule of general application to all cases falling within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff had had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff’s earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future.
I bear in mind that when assessing this head of damages I must take into account all contingencies both positive and negative which might arise hereafter.
Between the hearing in February 2006 and the resumed date of hearing in May 2006 the plaintiff and his brother signed a new lease for ten years with two rights of renewal over premises at Tapleys Hill Road. At the date of conclusion of these proceedings the plaintiff and his brother were awaiting council approval subject to which the new gym was expected to be operating some time later this year in July or August if all went well.
Although Mr Eric Pasvouris claimed that his brother had not been pulling his weight since the accident in 2002 and that he was sometime after the date he gave evidence in February 2006 resolved to have a serious discussion with his brother about whether the two would continue together operating the gym I find that the fact that by May of 2006 the new lease had been signed by the brother is evidence enough of the fact that the two brothers do intend to continue in partnership together. I do not accept that there is any real risk that the two brothers will not continue to work together in the gym business, subject of course to the normal exigencies in obtaining council approval for the new venture.
The income disclosed from the business in the tax returns for the years 1999 to 2005 show that the plaintiff and his brother continued to make a good living from the business. Now there is no doubt that the income from the business dropped in 2005 – however I find that this drop is related to the uncertainty of the continuation of the business at 145 Brebner Drive West Lakes as a result of the lease problems the plaintiff and his brother experienced from 2003 onwards.
The plaintiff’s employment history since leaving school has been almost exclusively within the context of the businesses of family friends or family businesses with his brother. If for any reason the plaintiff finds himself on the open labour market in years to come then by reason of his ongoing impairment arising from this accident and having regard to his educational history and working background I do find that he will be at some disadvantage on the open labour market. Some modest allowance is therefore justified under this heading being the value of the chance that the plaintiff’s wrist disability will impact on his capacity to earn in the future. In my view only a modest allowance is indicated on the evidence before me. The present value of this loss I assess at $25,000. This heading of loss attracts no interest.
Special Damages
There are no past special damages claimed. The medical evidence was somewhat equivocal as to whether the plaintiff ought to undertake another operation to remove the plate and screws in his left wrist. One doctor thought it would make no difference, another doctor thought it may improve the symptoms the plaintiff experiences. In my view it is reasonable to make an allowance for the plaintiff to undergo that operation as it could have a beneficial effect. On the basis of the figures provided by Dr Wallace in his letter of 30 January 2006 (Exhibit P6). I award the sum of $3,000 as the present value of the cost of surgery.
Gratuitous Services rendered by the Plaintiff’s parents
The plaintiff said that after his discharge from the hospital he was cared for at home by his father and his mother. For the first couple of months he was largely incapacitated as both of his hands were to some extent immobilised. He needed his father’s assistance to go to the toilet and to shower. His mother fed him and helped him dress during that period. Mrs Efstratia Pasvouris, the plaintiff’s mother confirmed in her evidence that she and her husband provided this sort of care for the plaintiff until towards the end of June 2002. In addition, Mr Pasvouris senior took the plaintiff to the hospital where he went from time to time for treatment at the hand clinic.
Mrs Pasvouris said that after the plaster was removed he got a bit better and started to drive his motor vehicle. It appears from the report of Dr Wallace that the plaintiff was last seen for physiotherapy or occupational therapy at the hand clinic on the 11October 2002. The plaintiff confirmed as much in his evidence that after that time he did his own form of therapy including swimming, hydrotherapy and massage at the gym.
I find that Mr and Mrs Pasvouris senior did provide those services to the plaintiff, at first after his discharge from hospital on an intensive basis but gradually as he got better their assistance tapered off. It is obvious from Mrs Pasvouris’ evidence that the plaintiff was driving his car again by about July, and it is obvious from the evidence of both the plaintiff and his brother, although the date is not precise that the plaintiff did go back to work, albeit for reduced hours in July 2002.
I find that the plaintiff is entitled to damages for the gratuitous services provided by his parents during the period from 23 March 2002 until the beginning of July 2002.
I make that finding however against the background of the evidence of Mrs Pasvouris, which I accept, that she always performed the majority of household chores in that house in any event including the cooking, cleaning and the ironing.
There was some evidence about the plaintiff’s responsibilities for mowing the lawn, watering the garden and doing those kinds of jobs when his parents were away in Ardrossan. Although the plaintiff claims not to be able to do any of those duties now, I cannot accept the plaintiff’s evidence, nor his mother’s evidence, that at this stage the plaintiff is unable to perform any duties in the garden including even watering the garden with a hose.
The plaintiff presented a schedule of rates prepared by Homecare Service, (Exhibit P10), for rates of pay to do with overnight and daytime nursing and other charge out rates for support workers performing personal services. I accept the defendant’s submission that to mathematically calculate the value of the services rendered by Mr and Mrs Pasvouris in this way would be entirely artificial. Doing the best I can and using those figures as a rough guide I award the sum of $3,500 inclusive of interest under this head of damages.
CONCLUSION – SUMMARY
Quantum
Plaintiff’s damages
Non-economic loss
Pain and suffering
(prescribed sum 1710 numerical value 8) $13,680.00
Economic Loss
Past loss of earnings $ 5,000.00
Interest $ 1,465.00
Future Medical Expenses $ 3,000.00Special Damages NIL
Loss of earning capacity $25,000.00
Gratuitous services $ 3,500.00
(provided by the plaintiff’s parents
inclusive of interest) _________
Total $51,645.00
Accordingly, there will be judgment for the plaintiff against the defendant in the sum of $51,645.00, which sum includes interest.
I will hear the parties as to costs.
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