Professional Painting Services Pty Ltd v Arnotts Biscuits Ltd

[2007] NSWDC 16

CITATION:	Professional Painting Services Pty Ltd v Arnotts Biscuits Ltd [2007] NSWDC 16
HEARING DATE(S):	31 January 2007
EX TEMPORE JUDGMENT DATE:	2 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $130,125.02; 2. The defendant is to pay the plaintiff’s costs of the proceedings; 3. The exhibits may be returned.
CATCHWORDS:	Workers Compensation recovery - exaggeration by worker
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
PARTIES:	Professional Painting Services Pty Ltd Arnotts Biscuits Ltd
FILE NUMBER(S):	Newcastle 132/06
COUNSEL:	M J Jenkins Plaintiff J C Chapman Defendant
SOLICITORS:	Rankin Nathan Lawyers Plaintiff Sparke Helmore Defendant

JUDGMENT

HER HONOUR

1 In this matter, the plaintiff, Professional Painting Services Pty Limited, brings proceedings pursuant to section 151Z(1)(d) of the Workers Compensation Act 1987 against Arnotts Biscuits Limited.

2 The action is brought to recover workers compensation paid to Mr Oscar Bashuru Gambo by Professional Painting Services.

3 Mr Gambo claimed that he was injured in a motor vehicle accident on 29 April 2004.

4 The accident occurred when a vehicle owned by Arnotts and driven by its employee collided with the rear of a vehicle driven by Mr Gambo.

5 At the time Mr Gambo was travelling to his place of employment with Professional Painting Services.

6 It was conceded by Arnotts that the claim qualified as one to be dealt with under section 151Z(1)(d) of the Act.

7 Breach of the duty of care was admitted.

8 The issues involved the extent to which Mr Gambo was injured in the accident so as to qualify him for damages in respect of any claim he might bring against Arnotts under the provisions of the Motor Accidents Compensation Act 1999.

9 A claim has in fact been made by Mr Gambo under that Act in the course of which his whole person impairment has been assessed orthopaedically by Dr Dixon Hughes in a report of 5 December 2005 and by Dr Akkerman, psychiatrist, in a report of 24 November 2005.

10 In his opening, counsel for Professional Painting Services foreshadowed an argument that the assessments of those doctors did not have the status of conclusive evidence provided for in section 61(2) of the Motor Accidents Compensation Act for the purposes of these proceedings.

11 It became unnecessary to deal with that argument, however, in the light of medical evidence and that of Mr Gambo himself which indicated that his condition would not sustain a finding that permanent impairment as a result of the accident was greater than 10 per cent so as to generate an award for non-economic loss.

12 Also abandoned was the claim in respect of attendant care services. Professional Painting Services pursued claims in respect of loss of income earning capacity, past and future, and medical expenses, past and future.

13 The essential difference between the parties was the extent to which Mr Gambo’s income earning capacity had been affected by his injuries.

14 Mr Gambo claimed injuries to his neck and low back and a psychological injury of adjustment disorder. He was forty six at the date of the accident and is now forty nine.

15 He was born in Ghana. He went to New Zealand in 1995 and came to Australia in 1999. He has five children, three of whom live in Ghana with his former wife and two who live in Australia with Mr Gambo and his current wife.

16 He was educated to Year 10 equivalent in Ghana where he was employed in farm work.

17 In New Zealand he said he cleaned out houses and many, many offices and he also worked as a house painter.

18 When he came to Australia he obtained work as a house painter and he continued to carry out that work on a semi self employed basis until shortly after the accident.

19 Pay slips in evidence indicated that he frequently worked six days a week and on occasion, seven days. Mr Gambo said he worked whenever work was available.

20 After the accident he complained of continuing constant neck and back pain which was worse with activity. He also stated that he continues to have pain in his legs, particularly his thighs. He said that his pain had not improved from the date of the accident to the current date.

21 In 2005 Mr Gambo obtained a security guard’s licence. He commenced work with Checkmate New Generation Security in May 2006 on a part time basis. His working hours have been gradually increased to the current four days, in shifts of six hours. He stated that the security guard work had increased his back pain because it involved long periods of standing and walking. However, he stated that he can continue with this type of work. He agreed that there was other unskilled work that he could do provided that it involved no heavy lifting or bending and that he could alternate between sitting and standing.

22 In cross examination he was taken to a large number of jobs for which he had applied with and without the assistance of a rehabilitation service. The result of the evidence was that although Arnotts accepted that Mr Gambo could not return to work as a house painter it did not accept that he was incapacitated by his claimed injuries to the point where he was unable to work full time in appropriate employment.

23 This position was based upon the evidence of the many varied jobs for which Mr Gambo applied which it was argued demonstrated his own awareness of the extent of his capacity. It was based also on medical reports indicating that Mr Gambo had presented to his examining doctors in an inconsistent manner such that he had exaggerated the nature and extent of his continuing symptoms.

24 I find that it was apparent that Mr Gambo overstated the extent of his ongoing symptoms in the course of various medico-legal examinations.

25 I also find that there was evidence that established that Mr Gambo did not co-operate fully with medical recommendations in respect of physiotherapy and the gym programme for muscle strengthening.

26 However, I do not accept that this leads to the conclusion that Mr Gambo was capable of, or able to secure full time work. My reasons for this conclusion are as follows.

27 The only evidence that Mr Gambo was fully recovered was contained in the report of Dr Perla of 12 December 2005. I note that Dr Perla is not an orthopaedic specialist but is described on his letterhead as a WorkCover approved injury management consultant. Dr Perla noted the inconsistencies in presentation in respect of the complaint of neck pain. In his opinion, Mr Gambo suffered a temporary aggravation of pre-existing degenerative changes in his neck and back from which he had recovered.

28 Dr Pillimer reporting in September 2005 accepted that Mr Gambo could have ongoing symptoms but said that he had difficulty in assessing those symptoms because of the inconsistencies in his presentation.

29 Dr Dixon Hughes examined the plaintiff in November 2005 on behalf of the Medical Assessment Service operated by the Motor Accidents Authority. He reported in December 2005 having noted inconsistencies. He diagnosed the following injuries as permanent impairments resulting from the motor vehicle accident: soft tissue and possible disc injury to the cervical spine with symptoms but with no evidence of structural injury or neurological impairment; soft tissue and possible very minor disc injury to the lumbar spine with symptoms but with no evidence of structural injury or neurological impairment.

30 Further, there was evidence from Mr Gambo’s treating medical practitioners, Dr Guirgis, an orthopaedic specialist and Dr Latif, a general practitioner. Dr Guirgis was consulted on a number of occasions. He diagnosed disc derangement at the C4/5 and C6/7 levels and at the L4/5 levels with aggravation of pre-existing spondylitic changes. He reported that those injuries explained Mr Gambo’s symptoms.

31 Dr Latif’s opinion mirrored that of Dr Guirgis. Dr Latif issued medical certificates indicating that Mr Gambo was partially incapacitated for work and he gradually increased his working hours to thirty per week.

32 Mr Stambouliah, a psychologist and Dr Akkerman, psychiatrist, both diagnosed an adjustment disorder. Dr Akkerman said the disorder was a permanent condition.

33 It will be seen that Dr Perla was the only medical practitioner who was of the opinion that Mr Gambo had fully recovered from the consequences of the accident.

34 Aside from the medical evidence there was the evidence from Mr Gambo that he applied for a large number of positions without success in securing employment except in one case where he was offered work as a security guard which he declined. He said he did so because this work involved rotating shifts. He said child care arrangements were such that if he were required to undertake an afternoon shift his wife could not work and he did not want her to lose her employment so that he could take up his. I accept this explanation as reasonable in current economic circumstances where it is necessary that both parents work in paid employment in order to support a family.

35 My findings, therefore, are as follows:

1. Mr Gambo suffered and continues to suffer symptoms resulting from injuries to his discs in his cervical and lumbar spine as a result of the motor vehicle accident.

2. His symptoms are not as severe as those stated to medical experts or to me in the course of this hearing.

3. It was reasonable that he limit his working hours to those specified in his general practitioner’s medical certificates.

4. Although the adjustment disorder might have been responsible for some delay in his returning to part time employment, it was not reasonable that he did not return to any employment until May 2006.

36 As to the future, Mr Gambo stated that he continues to search for employment in which he can work full-time. He stated that he does not know, at this stage, if he would cope with full time work. I find it probable that in due course he will secure appropriate long term employment but he will remain vulnerable to the exigencies of the labour market in securing appropriate employment from time to time.

37 In accordance with my findings, damages for past economic loss have been assessed as claimed on the basis that Mr Gambo could have returned to part-time employment by May 2004. I accept that his pre-accident income earning capacity was $492 per week net and I have adopted the figures set out in the schedule of worker’s damages provided by Professional Painting Services which I have marked exhibit Q to arrive at a figure of $39,567 for past economic loss.

38 The current loss is now only $45 per week. Although it is my assessment that Mr Gambo will probably, in due course, return to full time work, it is also evident that he will face difficulties in securing appropriate employment. In the circumstances, I have discounted the amount claimed slightly so as to allow $20,000 for future income loss, inclusive of superannuation.

39 Past medical expenses are agreed in the sum of $27,457.31.

40 For the future, I regard the amount claimed as moderate and reasonable and I have allowed $7,000.

41 Superannuation for the past income loss has been allowed in the amount claimed at $6,707.31 on the basis that Mr Gambo moved from self employment to a situation where his employer would have been obliged to make superannuation contributions on his behalf.

42 The Fox v Wood component is allowed, as agreed, in the sum of $16,498.57.

43 I need to correct that part of my judgment relating to the award for superannuation on past income loss. The amount allowed is $4,273.24. I also allow interest in the sum of $15,385. This will result in the following orders:

1. Verdict and judgment for the plaintiff in the sum of $130,125.02.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits may be returned.

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