Petrovic v City of Gosnells
[2006] WADC 164
•18 OCTOBER 2006
PETROVIC -v- CITY OF GOSNELLS [2006] WADC 164
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 164 | |
| Case No: | CIV:1943/2004 | 28, 29-30 JUNE & 21 JULY 2006 | |
| Coram: | FENBURY DCJ | 18/10/06 | |
| PERTH | |||
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | MARKO PETROVIC CITY OF GOSNELLS |
Catchwords: | Negligence Assessment of damages turns on own facts |
Legislation: | Nil |
Case References: | Bradburn v Great Western Railway (1874) LR 10 Exch 1 Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Richards v Mills (2003) 27 WAR 200 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF GOSNELLS
Defendant
Catchwords:
Negligence - Assessment of damages - turns on own facts
Legislation:
Nil
Result:
Judgment for the plaintiff
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Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr J Eller
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : John Eller
Case(s) referred to in judgment(s):
Bradburn v Great Western Railway (1874) LR 10 Exch 1
Federal Commissioner of Taxation v Scully (2000) 201 CLR 148
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Richards v Mills (2003) 27 WAR 200
Case(s) also cited:
Nil
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1 FENBURY DCJ: The plaintiff was born on 10 September 1957 in Bosnia. He attended school in that country and left at the age of 15. He thereafter obtained a drivers licence and commenced to earn a living driving a truck. He drove for two years prior to commencing national service in the military during which he acted as a personal guard to President Tito. He was thereafter a bus driver for seven and a half years.
2 The plaintiff left Bosnia in 1991 when he was about 34 and after spending some time in a refugee staging detention camp, he arrived in Australia on 6 December 1994. He is married with three sons.
3 At the time of his arrival the plaintiff could not speak English. He was unable to find employment and commenced a crash course in English and soon found employment as a part-time cleaner along with his wife. He eventually started up a business with his wife and the business operated with some success.
4 On 22 October 2003, the plaintiff was working with his wife contract cleaning a building operated by the City of Gosnells. The contract required the plaintiff to commence work at 4 am until about 7.00 to 7.30 am. At the relevant time the plaintiff was vacuuming with a machine he carried strapped to his back.
5 The plaintiff was working underneath a flight of steps and, so far as I can understand, he put his foot on some styrofoam which covered a hole in the flooring about 30 centimetres deep. As he put his weight on it the styrofoam collapsed and the plaintiff fell. His right leg went down the hole. He broke the fall on his right knee and hand. He said that he was in shock following the fall. He was carrying his vacuum cleaning machine on his back at the time. He got up and sat on the steps nearby. He said that he felt dizzy and nauseous. He went to the toilet and vomited.
6 Liability has been agreed at 85:15 in favour of the plaintiff. This action requires an assessment of damages.
7 After the plaintiff had finished work, which was after a further period of about five minutes, he went home. He stated that he had pain in his right knee, head, back and shoulder. He said that he had pain on the back of his head because he was hit with the vacuum cleaning machine in the fall.
8 The plaintiff's wife drove him home and on the way they called in at a medical centre for an appointment with a doctor. He saw a doctor that day who, so far as he could remember, was Dr Saverimutto. Apparently
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- he saw Dr Saverimutto on two occasions and then commenced to see Dr L Sam who had a surgery on Beaufort Street in Inglewood. At the time the plaintiff lived in Booragoon, on the other side of the river. He said that he travelled to see Dr Sam because friends had told him that Dr Sam would "do bulk billing" and "I don't have to pay upfront".
9 The plaintiff said that since the accident he has tried to return to the cleaning business and do domestic cleaning but has found that he is unable to do so. He was not able to provide any particular dates but said that he had tried "a couple of times".
10 On the two attempts that he tried to return to work the plaintiff said he did so for 15-20 minutes but did not feel well. He felt pain in the neck, shoulder and head so he stopped work.
11 The plaintiff said that the symptoms in his wrist have much improved but he has numbness in two fingers. He said that his knee is much better and now is "quite good". He said that he stopped work because of the pain he felt in his shoulder, neck and head on the right side. Since the accident he said that the pain in his head, in his neck on the right side, in his right shoulder, and his low back, was the same now as it has always been, save that his low back is sometimes worse.
12 The plaintiff was referred to Karen Goodall-Smith, a psychologist. He said that he felt better after his consultations with her.
13 The plaintiff spends his days watching television and listening to tapes. He has fish tanks and also looks after his fish. When asked how he felt generally he said that he does some things "so I don’t think about my pain." He said that he loved his cleaning job and is very unhappy that he cannot do "75 per cent of it."
14 The plaintiff was asked about the economic consequences of the accident. He said that since his fall he has received payment from his income protection insurance. He receives about $2,000 per month. He does not do much exercise. He has poor sleep patterns. He said that he has pain and because of his pain he cannot asleep.
15 Prior to the accident the plaintiff was a keen gardener and enjoyed fixing cars and engaging in the mechanical work. He also did lawn mowing. He cannot do these things any more. He said this was because he experiences a lot more pain if he does so and he is not able to bend.
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16 The plaintiff said that he consults with Dr Sam. He sees him every fortnight whether or not he needs prescription medicine. He said that he takes analgesic and sleeping tablets and also blood pressure tablets.
17 The plaintiff has had to pay for a number of medications that he obtained at Garden City and at Thornlie Medical Centre. He has been referred to Dr Finch and has had various injections but he does not like them. He has attempted therapy in a spa and swimming pool on doctor's advice. He has done this many times at $4 per visit of either spa or pool.
18 As to the future the plaintiff said that he felt it was most important to cure himself and then return to his work. He said that prior to the accident he had planned to work until he was about 65 or 70 years of age. He said his wife provides him with transportation to and from his various appointments.
19 In cross-examination the plaintiff told me that he had lived in his present house since October 2005. He sold his previous house for $238,500 and bought his present house for $450,000. The proceeds of sale of another home of about $220,000 contributed to the price. Apparently the property was mortgaged in the amount of $260,000. He said that he was paying off interest at the rate of $1,600 per month.
20 The plaintiff said that he bought his present house because it had a swimming pool and he was able therefore to access treatment. However the pool was not heated.
21 The plaintiff said that when he had the fall at work, his point of impact with the ground was through one hand and one knee. He could not remember if he fell on his shoulder. He said that he had had no problems with his low back prior to the accident.
22 Counsel put the views of Dr Kerr and Mr Watson to the plaintiff as to his ability, relatively soon, to return to work. The plaintiff rejected that suggestion. He said that in some parts of his body the pain was greater. He said his hand and knee were better than they used to be. He said this was the first accident he had ever had of its kind. He had never had any prior symptoms.
23 The plaintiff said he had not attempted to return to truck driving since he had arrived in Australia. He had a truck driver's licence for a truck up to the weight of nine tonne. He said he obtained the licence because he thought that if his English improved he could do work
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- however he did not believe he could do so now because of the pain he suffers.
24 When asked whether he thought that he should be able to overcome his pain and return to work the plaintiff said that something inside him prevented him from doing so. He denied that it was in his mind. He said there was nothing wrong with his mind. He takes blood pressure tablets as a result of the accident. He has been taking them for about two and a half years.
25 The plaintiff was then referred to his "economic documents". Upon the application of his counsel the plaintiff gave some further evidence-in-chief about work he had done from time to time earning income from construction of fences. He admitted he received contract work in this regard, from RAC and QBE insurance. He said it was hard physical work requiring the digging of a trench 60 centimetres deep. He denied that he could do any of this work now because of pain he has in his neck, back and headaches.
26 He said that he supervised a fence construction job in early 2006. His children however did the physical work.
27 Later in the cross-examination the plaintiff was asked about various aspects of the financial documents and inconsistencies and lack of clarity in his earnings at that particular time. He did not seem well equipped to answer these matters and said that his wife, who was to give evidence, would be a more appropriate person to provide relevant information.
28 The plaintiff said that he would return to work if he was able to do so. He said that the protection income he is receiving at the moment ceases in 2008 and he will thereafter expect to receive a pension. He said that he had about $10,000 in cash in the bank.
29 The plaintiff was a fit looking man. He showed no signs of discomfort during the brief time that he gave evidence. He had a bemused sort of demeanour or effect in the witness box. It was very difficult to assess him as a witness because he used an interpreter, selectively, and the questions put by counsel were unsympathetic, on many occasions, to that fact. I found myself wondering whether he really did suffer the pain he complained of, based purely on his presentation. His evidence was patchy, brief, non-specific, and very short on detail. The examination on occasions appeared quite perfunctory. The plaintiff had recently upgraded his house and put himself into significant debt in a mortgage. This showed considerable optimism, I think, about his work prospects. But by
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- and large I must say that he was far from the most impressive plaintiff I have seen in the witness box. He seemed a pleasant enough person, personally. He had a sense of humour, but his poor English made it very difficult to be confident about any conclusions. He looked lean and fit and appeared to have no difficulty moving about so far as I could tell. Of course I did not see him in the workplace.
The plaintiff's family
30 Two witnesses were called on behalf of the plaintiff, being his wife and son.
31 Marljana Petrovic has been married to the plaintiff for 22 years. She and the plaintiff arrived in Australia on 6 October 1994. Neither she nor the plaintiff spoke any English upon arrival. They commenced going to school immediately upon arrival. Mrs Petrovic also completed a small business course.
32 Mrs Petrovic's English is as remarkably good as the plaintiff's is poor. Given they both started from the same non-English level, it is quite remarkable how well Mrs Petrovic has mastered the language.
33 Mrs Petrovic said that she and her husband started the cleaning business. They shared the work equally but her husband was "the man" and did the hard work and she did the lighter work. She told me that in relation to the Gosnells cleaning contract they would arrive at work at 4.00 am and work until 7.30 am.
34 After the accident Mrs Petrovic said that she could not take the plaintiff with her because they would not finish within the hours required. He was too slow.
35 The plaintiff was however able to assist in domestic cleaning which was not carried out pursuant to the same schedule. When she needed help she took her son Milan instead. I was told that the business did not pay Milan initially. He assisted out of filial duty.
36 Mrs Petrovic gave her evidence in an impressive manner. Indeed she is a most impressive woman and the plaintiff is very lucky to have her as his wife.
37 Mrs Petrovic explained the financial set-up of the cleaning business. She said it was difficult to pursue other work opportunities because her husband could not help because of his injuries. Mrs Petrovic looks after the financial accounts of the business. They employ an accountant. She
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- explained various figures. Before the accident she said the plaintiff worked harder than she. He did the heavier work. She did the light work and the book work. She said that she and her husband intended to work until they were 65 or so.
38 Mrs Petrovic was cross-examined about her and the plaintiff's acquisition of the matrimonial home. The purchase of this home occurred in October 2005 for the sum of $450,000. They financed the purchase from the proceeds of sale of another home and they borrowed monies secured by a mortgage in the sum of $260,000. The mortgage payments are $1,600 per month and in part these are paid from insurance the husband had in relation to his income.
39 As I have said Mrs Petrovic was a most impressive witness. I felt confident that she was doing her best to tell me the truth and that her evidence was reliable. I accept her evidence in relation to financial matters. She painted a picture of a family from Croatia who helped each other, who pitched in for the good of the family generally.
40 This impression was reinforced by Milan Petrovic, the plaintiff's son. He worked for quite some time without pay and did not expect pay. His rationale was that he was at university, that he was staying at home, and he felt a filial obligation to assist at the family's time of need. He was paid some wages for some period but this ceased once he became aware that the family was struggling financially. He spoke of the physical demands of cleaning and it was he who pitched in and did the heavy work his father did prior to the accident.
41 I have no hesitation in accepting the evidence of the plaintiff's wife and son.
The medical evidence
42 The first medical witness called on behalf of the plaintiff was Dr L Sam who was the plaintiff's general practitioner. He has a surgery in Beaufort Street, Inglewood. He has been seeing the plaintiff since about a week after the accident in October 2003. Dr Sam said that he does not run his surgery on the basis of patients making appointments; it is very much "first come, first served." Dr Sam was eager to make the point that he never asks his patient to return; they return when they feel they need to do so.
43 Dr Sam was defensive about this and it was soon easy to see why given the number of consultations he has had with the plaintiff since the
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- accident. Those consultations are referred to in the plaintiff's further re-amended schedule of special damages. A quick perusal of that schedule shows that the plaintiff was seeing Dr Sam twice and sometimes thrice per month for much of the period since the accident.
44 Dr Sam wrote five reports which are contained in exhibit 3. These reports are extremely brief, even abrupt in their flavour. They do not condescend to detail but simply answer specific questions put by the plaintiff's solicitors. They are not very informative documents. Dr Sam was asked about the opinions of other medical witnesses including Mr Watson and Dr Kerr but he disagreed with much of what they say concerning the plaintiff's ability to return to work.
45 In short, Dr Sam accepted the plaintiff's word in all matters, uncritically, and seemed to me to be more concerned about apparent over-servicing. He was very much in favour of the plaintiff's claim and supported him effusively. The plaintiff still owes Dr Sam an unspecified sum of money relating to the outstanding "gap" payments he feels he is owed.
46 Dr Sam seems to me to have reached an early and unjustifiable conclusion that the plaintiff has permanent incapacity. With all due respect to him he was unimpressive as a witness and his uncritical acceptance of everything the plaintiff appears to have told him is of concern. The fact that the plaintiff travels from Booragoon to Inglewood to see him because he is prepared to bulk bill these matters and his apparent discomfort about the number of consultations he has had with the plaintiff all cause me some disquiet in placing any significant weight upon Dr Sam's views in this matter.
47 The plaintiff was referred by Dr Sam to Peter Watson, a neurosurgeon in or about November 2003. Mr Watson wrote three reports which appear in exhibit 3 pp 1-6 inclusive.
48 Mr Watson's initial views were, having regard to x-rays and examination of the plaintiff, that the injuries were "largely soft tissue" and that conservative treatment was indicated. He felt symptoms would settle with time. In his second report dated 6 February 2004 he expressed the opinion that the plaintiff's injuries are:
"soft tissue and ligamentous to the lumbar spine and to a lesser extent the cervical spine."
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- He also said that "in the longer term Mr Petrovic has a good prognosis for return to work" which he estimated to be within three to six months from that date.
49 The second time Mr Watson saw the plaintiff was on 6 January 2006 and that was purely for the purposes of providing a report, not for treatment. He records the plaintiff's complaints of pain in the cervical spine, the right shoulder and the lumbar spine and expressed the belief that there was no evidence of nerve root impingement. In response to specific questions, Mr Watson summarises his views as follows:
"The ongoing symptoms and injuries to your client are of soft tissue and ligamentous injuries to the cervical and lumbar spine.
The likely development of Mr Petrovic's symptoms is that he is now probably reaching a status quo. His injury was almost two and a half years ago. I see no reason that one should not be optimistic about improvement looking at his scans (MRIs of lumbar and cervical spine) however his presentation shows no evidence of improvement.
The likely treatment Mr Petrovic will require in the future would be exercise or pain management treatment. I don't believe he needs any surgical intervention.
At the present presentation Mr Petrovic is unlikely to return to work. I think that he needs to consider rehabilitation towards sedentary employment and that probably does require reviews by vocational specialists. I see no reason that in the longer term looking at the favourable MRI scans and Mr Petrovic's favourable examination in neurological terms that he should not be able to carry out light duty work or sedentary occupations."
50 In his oral evidence Mr Watson's view was that the plaintiff was capable of doing lighter duties on a purely physical or neurological analysis, excluding the effect of any depression. He confirmed that there was no evidence of improvement over the period that he had seen the plaintiff and he confirmed that there was no call for invasive treatment.
51 The plaintiff was also referred by Dr Sam to Dr Phillip Finch who is a specialist in anaesthetics and pain medicine. Dr Finch saw the plaintiff on 15 September 2004. He wrote one report dated 25 July 2005 which is copied in Ex 3 p 27. Dr Finch examined plain x-rays of the plaintiff's cervical spine taken a few days after the accident and his view was that
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- they demonstrated degenerative changes at C5/6. He also found degenerative changes in the plaintiff's right wrist and osteophytes in his lower lumbar spine. A CT scan of the latter also demonstrated mal-degenerative changes "in a number of facet joints and modest disc bulges at L4/5 and L5/S1."
52 Upon examination Dr Finch concluded that the plaintiff's:
"main problems lay in a facet joint injury in the cervical spine, possibly at about C3/4, C4.5. In the lumbar spine I concluded he may have an injury to the L4/5 disc or facet joint."
53 Dr Finch obtained MRI studies and the resulting reports demonstrated a number of degenerative changes but no significant "compressive features".
54 On 18 November 2004 Dr Finch injected the plaintiff's cervical facet joint nerves and this significantly reduced his neck symptoms. The following year, in June 2005, Dr Finch "proceeded to a radio frequency version" of his treatment of facet joint nerves in the neck and again this produced significant improvement.
55 Dr Finch reviewed the plaintiff on 25 July 2005 and he noticed upon examination of an MRI of the plaintiff's lumbar spine that there were degenerative changes.
56 Upon examination Dr Finch found the plaintiff to be depressed. He had restricted movement in his cervical region. Dr Finch summarised the plaintiff's problems thus:
"1. Firstly he has ongoing cervical facet disturbance and pain which has been improved with radio frequency blocks. …
2. In the lumber region your client has a degenerate disc which would most probably have pre-existed his accident. However he most probably disrupted the L4/5 disc on top of an already degenerate disc and has ongoing mechanical pain in the L4/5 segment. … I do not think he is an operative candidate.
3. Thirdly your client is depressed and has a number of psychological issues."
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57 In the penultimate paragraph of his report Dr Finch expresses the view that the plaintiff's ability to work has been compromised and the difficulty is exacerbated by his poor language skills.
58 In his oral evidence Dr Finch said that the improvement following injections needs to be very carefully assessed in the circumstances of this particular case. He agreed that degenerative change in the spine of a person nearing their 50th year is a common place finding. He confirmed that he believed the plaintiff had injured a joint in his upper cervical spine and his guarded success on injection seemed to confirm this opinion. He felt that the optimism of Mr Watson, the neurosurgeon, was misplaced because the plaintiff obviously had a problem in the neck and low back.
59 Dr Finch said that when he first saw the plaintiff, he presented with what he described as florid pain behaviour. He meant, perhaps exaggerated and over-sensitive pain behaviour. However, he felt that this had abated and that the plaintiff now presents in a much more straightforward way. He does not think the plaintiff has a low pain threshold although he agreed that the procedures he had carried out upon the plaintiff were not particularly uncomfortable. He did not think the plaintiff could work again as a cleaner.
60 Dr Finch was asked to provide a further medical legal report on 19 June 2006 by the plaintiff's solicitors. He wrote a report dated 26 June 2006 which is reproduced at p 3 of exhibit 9.
61 In this report Dr Finch describes having injected the plaintiff's "medial branch nerve supply to the facet joints in the cervical spine from CT/3 through to C5/6 on the right side".
62 Dr Finch said that the injections improved the plaintiff's neck symptoms to a reasonable extent. However, he states in the report that the plaintiff will continue to experience a pain state indefinitely.
63 Dr Finch commented upon a recent MRI report, dated 1 February 2006, which is included in exhibit 9 at pp 1 and 2 and in which the report writer observes an increase in the size of the right foraminal disc protrusion at C5/6. Despite this discovery Dr Finch reports that surgical opinion was to the effect that conservative techniques were still justified.
64 Dr Finch reiterated his view that the plaintiff is unfit to work as a cleaner but also stated that he "probably should retire from the workforce and seek a pension".
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65 The plaintiff was referred by his solicitors to Dr John K Ker, who is a consultant physician in rehabilitation medicine. Dr Ker saw the plaintiff on 18 December 2004 and wrote two reports which appear at pp 18-26 of exhibit 3. Dr Ker's view was that if the plaintiff's mood was no longer an issue, it would be hoped he could return to work, especially given that he had been self-employed. Because of the plaintiff's total situation, according to Dr Ker, there were gloomy prospects of the plaintiff being able to return to the workforce in a competitive environment. He took a bleak view of the plaintiff's future. Dr Ker noted that the plaintiff had had a simple strain injury to his cervical and lumbar spines, however he said, as to the future:
"In view of the persistent nature of this man's symptoms over 12 months and the evidence of modest degenerative change in his spine, I feel that the comprehensive resolution of your client's symptoms is unlikely, however, I do believe that with persistent treatment, the intrusiveness of his pain can settle further."
66 Nevertheless, in his first report, Dr Ker was guardedly optimistic and he summarised his views in his first report thus:
"In my view, with continuing treatment, your client will be able to effectively return to work and as such I would be hopeful that his working life has not been curtailed by this incident of injury. However, such an opinion needs to be qualified by the finding of degenerative change in his cervical and lumbar spine findings which may demonstrate, over time, some further advance and as such would, in my view, constitute an obstacle to your client working to the normal retirement age."
67 In his second report dated 17 January 2006 Dr Ker reviewed events since his previous report and observed there had been little if any improvement. At p 25 of exhibit 3(d), in response to the solicitor's question about the likely development of the plaintiff's condition Dr Ker said this:
"Prior investigation of this man's spinal symptoms have demonstrated evidence of degenerative pathology, both cervical and low lumbar, although I would draw to your attention that the radiological and imaging appearances of this degeneration are relatively modest.
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- Given the limited response to procedural treatment in this case I am cautious in suggesting that substantive further physical improvement would take place.
I would also express a degree of pessimism concerning your client's ongoing depressive symptoms since it would appear to me that these have now been present despite sustained psychotherapy treatment over an approximate one and a half year period. The likely response therefore of your client's (sic) to such treatments and with it, his ability to 'cope' with his ongoing spinal pain, seems limited … "
- And later:
"Such has been your client's response to this injury – now over a two year period – that I would have thought his opportunities to return to work remain quite curtailed. This primarily is due in my view to the chronicity of his pain and the clear evidence of a depressive disorder."
"It is my opinion based on the history elicited, the mental state at his examination, having perused the copies of documentation which you sent me and based on my clinical experience that this man suffers from a chronic adjustment disorder with mixed anxiety and depressed mood (DSM IV TR) to a moderately severe extent."
69 Dr Ng said that by a process of elimination of other causes and lack of history, his view was that the plaintiff's psychiatric condition was precipitated by the accident. He also was of the opinion that "the significant stress associated with the ongoing physical symptoms that he reported and the restrictions to his physical functioning are the factors perpetuating his psychiatric condition".
70 Interestingly Dr Ng's view was that the plaintiff did not currently require anti-depressant medications. However, he felt he would benefit from ongoing psychotherapy with psychologist Caroline Goodall-Smith.
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71 In his last observations about the plaintiff's ability to work Dr Ng said this:
"I will not provide you with an opinion on his work capacity based on his physical problems as that is not my area of expertise.
Purely from the psychiatric perspective and excluding that he has any physical problems whatsoever and only considering the psychiatric diagnosis and the extent of his psychiatric problems, it is my opinion that this man is currently not capable of working in any paid employment."
72 Dr Ng's final report dated 12 January 2006 followed a review of the plaintiff on that date.
73 Similarly to his report four months earlier, Dr Ng's view was that the plaintiff still suffered from chronic adjustment disorder with mixed anxiety and depressed mood to a moderately severe extent.
74 Dr Ng commented upon the suggestion from the psychologist Goodall-Smith that the plaintiff suffered from post-traumatic stress disorder. His view was that categorisation of symptoms was not as important as the acknowledgment that the plaintiff "has pathological depressive and anxiety symptoms however they are categorised".
75 Dr Ng's view was that the plaintiff had not improved despite ongoing psychotherapy, small doses of anti-depressant medication and other medical attention. Nevertheless, Dr Ng felt that the plaintiff's psychiatric condition should improve.
76 However, Dr Ng's present view was that the plaintiff, from a psychiatric perspective, (solely) was currently totally unfit for any form of work due to the significance of his depressive and anxiety symptoms.
77 Dr Ng gave satisfactory evidence. He observed that when people are depressed they tend to experience their pain more than when they are not. He also felt that the plaintiff's sense of loss of role and relevance was an important factor.
78 The final medical witness called on behalf of the plaintiff was Ms Karen Goodall-Smith who is a psychologist. Her report is reproduced at exhibit 3 p 47. It is clear from exhibit 12 that Ms Goodall-Smith has seen the plaintiff on a large number of occasions.
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79 Ms Goodall-Smith's opinion was that the plaintiff has suffered from a post-traumatic stress disorder. Her view is that the plaintiff's psychological symptoms are as a result of the accident. She felt the plaintiff would need ongoing support and treatment for 18 months, at least, from October 2005. She felt it was "unrealistic" for the plaintiff to engage in physical work. She also felt that the language barriers together with his high level of anxiety would prevent him from adapting to employment. She felt that it is possible the plaintiff might be able to do some part-time work in 12 to 24 months.
80 In cross-examination Ms Goodall-Smith emphasised her view that a person's subjective reaction to the incident is what is important, not the objective modesty of the event itself. She felt that she would need to see the plaintiff every two to four weeks for about two years. Ms Goodall-Smith has seen the plaintiff on a large number of occasions. Her evidence was consistent with the evidence of medical practitioners in a general sense.
81 There were two medical witnesses relied upon by the defence. Dr Alan Home who is a consultant in occupational medicine was called to give evidence.
82 Dr Home's report is reproduced in exhibit 10 at pp 1-10 inclusive.
83 He is a consultant in occupational medicine to whom the plaintiff was referred by the defendant's solicitor and who saw the plaintiff on 27 April 2005. Dr Home's view was that the plaintiff's symptoms were unusual given the circumstances of the accident. He wrote a 10 page report dated 27 April. In the section of his report marked "Assessment" on p 7, Dr Home states:
"Based upon the mechanism of accident, it is consistent that the worker would sustain a bruising injury to the right knee, and in particular the patella and patella femoral joint. It is possible that he would sustain a lateral flexion force through the lumbar spine such as to cause a muscular ligamentous soft tissue injury.
He may have also sprained his right wrist as he fell, noting that he put his right hand out to break his fall. A muscular injury in the region of the shoulder girdle could also arise from such a mechanism.
A history of severe and constant pain in multiple areas extending 18 months post injury is most unusual, given the
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- mechanism of accident. The failure of any form of treatment for his symptoms is also unusual."
84 Later Dr Home states:
"Based upon the objective clinical findings, it is possible though not certain, that Mr Petrovic has sustained a soft tissue injury to the right side of the cervical spine, and a soft tissue injury to the lower segments of the lumbar spine."
85 And later:
"Given the non-organic clinical findings, I would be reluctant to recommend any ongoing invasive treatment. Indeed, I would consider that the use of invasive treatment should be curtailed or undertaken very cautiously in a patient presenting with more than three positive non-organic clinical signs. The reason for this is that there is clinical evidence of psychological or motivational factors impacting upon the presentation of disability, and this will also influence and modify the response to such treatment."
86 And then in relation to a specific question Dr Home says at the bottom of p 8:
"In relation to your further question regarding Mr Petrovic's work capacity, I cannot comment on his previous work capacity from the date of the accident to the present. However, in relation to his current clinical presentation, I would state that Mr Petrovic is presenting in the clinical setting as a man who has severe functional disability and he is conveying a picture of total incapacity. … I consider Mr Petrovic physically fit to undertake semi-sedentary or light manual employment, including light office cleaning.
. . .
It would be reasonable to exclude him from very heavy manual cleaning such as use of industrial polishers, heavy vacuuming and carrying an industrial backpack cleaner."
87 In his final sentence Dr Home concludes that it is likely that vocational rehabilitation will be unsuccessful "on psychological and/or motivational grounds".
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88 Dr Home was quite an impressive witness. Of course if the plaintiff is excluded "from very heavy manual cleaning…" then he is not going to be able to pull his weight in the family cleaning business.
89 The further medical witness relied upon by the defendant, whose report was tendered by consent and who did not give evidence from the witness box, was Dr Victor Cheng who is a psychiatrist. Dr Cheng wrote an 11 page report dated 3 November 2005 which appears at exhibit 10 p 11.
90 Dr Cheng had difficulty in identifying any thought disorder with the plaintiff because of the language barrier, even though the plaintiff's wife was there to assist in translation.
91 However, in his diagnosis Dr Cheng concluded the plaintiff was suffering from an adjustment disorder that fitted within the diagnostic criteria, although not suffering from a major depressive episode at the time of the consultation. Dr Cheng did not think the plaintiff was suffering from post-traumatic stress disorder. At p 20 of exhibit 10 in the middle of the page Dr Cheng reports:
"In my opinion Mr Petrovic's extended sick leave from work and lack of regular activities has resulted in a reduction in his self-esteem and sense of identity. This has resulted in increasing depressive symptoms and increasing anxiety symptoms and has reinforced his perception that he is disabled. It is likely that as his mood has deteriorated so has his pain tolerance.
At the time of the assessment Mr Petrovic had a conviction that he was disabled and that he needed to have appropriate treatment before he was able to return back to work. He did not appear to have a clear understanding of what he was able to do and whether he was likely to cause further injury to himself if he did regular household tasks. As a result, Mr Petrovic has withdrawn himself from almost all useful activity, restricting himself to occasionally watering the lawn.
In my opinion he is capable of a higher level of function than what he is currently performing. For example if he was able to go for walks on a regular basis without great difficulty then it is likely that he should be able to perform at a higher level of function than he did at the time of the assessment.
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- Some of the other perpetuating factors are that Mr Petrovic did not really have a role in his current household which was the result of cultural factors. For example, he stated that he did not do any housework, cooking or washing around that house as this had always been his wife's job. He felt that he was not able to get back to servicing the cars or doing the gardening. Therefore it is not surprising that at present he felt useless with the result that he then feels depressed about this, anxious that his wife might leave him and worried about his future prospects. If Mr Petrovic was able to do some of the chores around the house or other useful activity, then it is likely that this would help support his self-esteem, self-confidence and sense of identity and would have some beneficial effect on his mood and anxiety symptoms.
In my opinion, the more Mr Petrovic is inactive, the more his self-esteem, self-confidence and sense of identity will suffer. This will be detrimental to his mood and anxiety symptoms and reduce his tolerance of pain. Unfortunately, this can be a repeating cycle which leads to a reduction in activity levels and increased levels of distress over time and may explain why he appears to be much more disabled than what his original injuries might suggest.
. . .
Therefore in terms of the extent of his psychiatric impairment resulting from his alleged accident, it is my opinion that at the time of the assessment, his major causes of his reduced functioning was the result secondary consequences (sic) of his injury rather than a direct effect of his injury being; his long period of inactivity, the negative impact on his self-esteem, self-confidence and sense of identity as a result of his extended sick leave and his illness belief. This helps explain why he has had such a significant level of disability/impairment following a relatively trivial injury.
92 As to the plaintiff's future work capacity Dr Cheng's view was that with help he should be able to return to the workforce, and, further, his return to the workforce will in turn have a benefit to his psychological state and also his pain."
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General damages
93 Nearly three years have past since the plaintiff fell at work. Although the fall was relatively minor and seems to have caused soft tissue injury, the plaintiff has had a miserable time since. He has developed a psychological and/or psychiatric reaction and appears to have "dropped his bundle". The loss of self-esteem and perceived loss of status in the family resulting from his disability to do heavy work has been a self-perpetuating problem that appears to have led to depression, less resistance to pain and thus incapacity.
94 There seems no doubt the plaintiff has had these difficulties since the accident and until trial. The preponderance of the medical evidence seems to be to that effect.
95 Although, as I have indicated, the plaintiff was unimpressive as a witness, I do not feel he was trying to deceive the Court and, as I have also said, his fundamental complaints appear supported by his wife, whose evidence I accept.
96 The assessment of general damages is governed by the provisions of the Civil Liability Act 2004.
97 Section 9 provides:
"Restrictions on damages for non-pecuniary loss (general damages)
(1) If the amount of non-pecuniary loss is assessed to be not more that Amount A for the year in which the amount is assessed, no damages are to be awarded for non-pecuniary loss.
(2) If the amount of non-pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
(3) If the amount of non-pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be
- awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows –
- Amount A minus (Amount assessed minus Amount C)."
98 As published in the Government Gazette of 26 May 2006, Amount A is $14,000 and Amount C is $42,500.
99 I agree with counsel for the plaintiff that there was support for his complaints in the medical evidence. The plaintiff has suffered symptoms in the upper part of his cervical spine which have not resolved and which will continue for a time. His symptoms in his cervical spine would appear to be his principal source of discomfort although he does have difficulties in his low back. Apart from physical symptoms the plaintiff has also suffered psychiatric symptoms in the nature of an adjustment disorder and this has led to anxiety and depression. There is no doubt in my view that the plaintiff has had a miserable time in the last three years.
100 In my view having regard to the three years that have past since the accident and the medical evidence which is to the effect that the plaintiff will continue to have symptoms for a period, perhaps two years, but has prospects of recovery, a fair award for general damages is the sum of $40,000.
101 Thus s 9(2) of the Act would apply and thus $40,000 less $14,000 equals $26,000 general damages.
Special damages
102 By letter dated 21 August 2006 from the plaintiff's solicitors enclosing a letter dated 15 August 2006 from the solicitors for the defendant it is apparent that special damages have been agreed in the amount of $5,138.
Past economic loss
Private insurance benefits
103 Since an unknown date shortly after the accident the plaintiff has been receiving income from payments made to him pursuant to some form of private income replacement insurance policy. I am not able to be more definite about this because the policy was neither produced nor tendered in evidence. This is an unsatisfactory situation. However, there would seem to be no doubt that the plaintiff has been receiving these payments. That was the effect of his sworn evidence and that of his wife.
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104 The plaintiff was involved in a family cleaning business in which he did the heavy work and his wife provided clerical services and physically assisted with the lighter work. The business was conducted as a partnership and each of the plaintiff and his wife shared equally in the profits so the plaintiff was not paid wages. Predictably, the plaintiff's case was that in the assessment of damages for past economic loss, no account should be taken of the payments made to him pursuant to whatever insurance policy it was that he had in place.
105 The defendant's case was to the opposite effect, namely that having regard to the quantum of the payments made to the plaintiff (approximately $2,500 net per month), although this assertion was not supported by documentation, these payments should be discounted from whatever claim for past economic loss the plaintiff may otherwise have (which was asserted to be nil). Furthermore, given the policy the plaintiff had taken out stood to continue until 2008, the defendant maintained his receipt of payments would also affect his claim for future economic loss.
106 The High Court in Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 at 168-9, referred to Pigott B in Bradburn v Great Western Railway (1874) LR 10 Exch 1 at 3, which was specifically approved by Windeyer J in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 588, 598 as follows:
"The plaintiff is entitled to recover the damages caused to him by the negligence of the defendants, and there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident happening to him. He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause of his receiving it."
107 The High Court continued in Scully at 169, citing further from Windeyer J in Espagne,
"In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if…they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the
(Page 23)
- express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have…This description covers accident insurances and also many forms of pensions and similar benefits provided by employers… The decisive consideration is, not whether the benefit was received in consequence of, or as a result of an injury, but what was its character; and that is determined…by what under his contract the plaintiff had paid for…the test is by a purpose rather than by a cause."
108 Espagne was referred to by Anderson J in the West Australian Full Court in Richards v Mills (2003) 27 WAR 200 at 215. After citing principles formulated by Windeyer J, Anderson J observed:
"The benefits in question in this case are to be enjoyed notwithstanding that employment has ceased; and that benefits were paid for during employment by the services rendered by the respondent in the employment. The purpose of the benefits is not to compensate the respondent for the damages she sustained in the accident nor is it a payment in lieu of salary any more than any other pension is a payment in lieu of salary. It is simply one of the fruits of the respondent's past service, payable upon the onset of disability. It is a benefit 'both independent of and cumulative upon whatever right of redress against others might arise out of the circumstances of' the onset of that disability."
109 As I have mentioned there is dearth of evidence in the case relating to this but on any view of it it seems to me that given it is undeniable the plaintiff and his wife were in partnership and did not receive wages but shared profits, that the arrangement he had made in case of accident was of a kind which should not be brought into account in the calculation.
110 As I have indicated above the payments received by the plaintiff from private insurance arrangements should be ignored from consideration of economic loss.
111 The plaintiff puts his claim upon the basis that the assessment of past economic loss relates to the cost of substitute labour and loss of capacity.
112 Consistent with my favourable view of the plaintiff's wife and son I have no doubt that the payments made to the plaintiff's children and Liliana Novic were all required to be paid because of the need to replace
(Page 24)
- the plaintiff's labour. Milan Petrovic's commitment over a considerable time to unpaid labour in the family business emphasises the point.
113 I accept the written submission put on behalf of the plaintiff that:
"There is no reason to suspect that the plaintiff would not, but for the accident, have continued to be a working member of a viable partnership in respect of which he received half of its profits."
114 It is put on behalf of the plaintiff that through the four financial years prior to and including the accident 50 per cent of the partnership profits was averaged out at $21,117.75 per annum or approximately $356 per week net. Approximately 152 weeks have past since the plaintiff suffered those injuries and he quantifies the claim as follows: 152 weeks x 356 = $54,112. From this sum should be deducted the sum of approximately $6,000 being the "approximate sum of the plaintiff's distribution of profits in the 2004 financial year of $5,734 and his distribution of $322 in 2005".
115 I think this is a fair way of assessing past economic loss and I accept the plaintiff's counsel's figures. Given the passage of time since the trial and making appropriate adjustments I accept the plaintiff's counsel's invitation to make a "global" award and, making allowance for interest and also a modest discount for the contingencies of life and I think a figure in the region of $50,000 for past economic loss including interest would be fair and reasonable.
116 Of course it is put on behalf of the defendant that having regard to his receipt of accident insurance, that he has in fact suffered no past economic loss. As I have indicated I do not accept that submission.
Future loss of earning capacity
117 The plaintiff was born on 10 September 1957 and calculations are suggested upon the assumption that he would work for about 16 years before retirement giving a multiplier of 543. There are three scenarios suggested for the calculation of future earning capacity.
118 Scenario one relies upon the State minimum wage of $484.40 gross, being the minimum rate as of 7 July 2005. After tax this equates to $420.96 and a calculation is proffered that multiplying that by 543 (multiplier for 16 years) x .96 (for contingencies) = $219,438.02. That sum is a suggested calculation for future loss based upon total incapacity. The plaintiff suggests that 30 per cent retained earning capacity might be
(Page 25)
- reasonable which would equate to an award in the amount of $153,606.61. 50 per cent retained capacity would amount to $109,719.01.
119 The plaintiff submitted that an alternative scenario based upon the Cleaners and Caretakers Award Wage of $499.60, is almost identical.
120 The third scenario suggested by the plaintiff was to average the four financial years prior to the accident, which is said to be the year ending 30 June 2001, 2002, 2003 and 2004 which results in $21,117.75. This is $356.41 net weekly x 543 x .96 = $185,789.40. Again, this sum assumes total incapacity.
121 The plaintiff's submission was that 30 per cent retained earning capacity is favourable in the circumstances of the case. As counsel put it in submission 17:
"There must be considerable doubt as to whether the plaintiff will ever return to remunerative work. While there is scope for improvement in his condition the doctors (in particular Dr Finch) are not hopeful. Dr Watson, for example, considers that the plaintiff would not be fit for any work other than sedentary employment even if he were to improve. Clearly, Mr Petrovic has no 'transferable skills' into work of a lighter and sedentary nature. Notably, Dr Watson, in his evidence, was of the opinion that the plaintiff would never be able to return to any work which involved his working without stretched hands. That kind of work is at the very nub of cleaning, particularly vacuum cleaning and mopping as was readily conceded by Dr Home in cross-examination."
122 Counsel for the defendant commented upon the plaintiff's solicitor's scenarios of future economic loss and asserted that the calculations were incorrect and unreliable because of lack of clarity in the hours worked by the plaintiff prior to the accident. Counsel pointed to the lack of tendering of documentary evidence including the contract from the City of Gosnells and he submitted that "at best it seems that he worked at the City of Gosnells with his wife for three hours per day five days per week prior to his accident".
123 Of course that submission ignores the evidence that the plaintiff and his wife did domestic cleaning in addition to contract cleaning at the City of Gosnells.
(Page 26)
124 It is true that some of this evidence was vague but the favourable impression I have from the plaintiff's wife and family, which to some extent can benefit the plaintiff in the pre-accident sense, I think, strongly suggests to me that they worked hard in the business and would have been likely to have worked a normal full working week.
125 In any event the defendant suggests that the plaintiff should not be entitled to any claim for future economic loss because he receives insurance protection payments until the year 2008 and the loss of income is therefore "extinguished".
126 The weight of the medical evidence, certainly from Dr Watson, Dr Finch and Dr Ker, strongly tended to the view that the plaintiff could not work as a cleaner at the present time. That is in a physical sense. The plaintiff also suffers from psychiatric problems and both the psychiatrists seem to agree that he is incapacitated at the present time in a psychiatric sense. The conundrum is that if he could be got back to work then his ability to work will improve because his psychiatric/psychological problems are likely to be ameliorated.
127 All doctors seem to be of the view that he is not likely to be able to perform heavy work. Even the defendant's witness Dr Home, an occupational therapist, seemed to agree that the plaintiff could not do any heavy manual cleaning and he could not therefore contribute in the family business in the same way.
128 On the other hand the plaintiff must have some retained physical capacity. His presentation in court is consistent with that. However the loss to him of the ability to do heavy cleaning work, he being a man with modest English skills, is a very significant loss.
129 I think the plaintiff has retained more than 30 per cent earning capacity but not as much as 50 per cent and somewhere in between is fair and reasonable. Accordingly, in my view, the damages should be calculated upon the basis that the plaintiff has 40 per cent retained earning capacity and I think the scenario one calculated by the plaintiff's solicitors is reasonable and the plaintiff would be entitled to an assessment amounting to 60 per cent of $219,438.02 = $131,662. I think the plaintiff is entitled to an assessment in that sum.
130 It follows therefore that in my opinion the quantum of this claim should be assessed at:
General damages $ 26,000
(Page 27)
Special damages $ 5,138
Past economic loss $ 50,000
Future economic loss $131,662
$212,800
131 Given the agreed apportionment of 85/15 in favour of the plaintiff, the plaintiff is therefore entitled to 85 per cent of this sum which is the sum of $180,880.
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