Ristoski v Craker
[2015] WADC 151
•15 DECEMBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RISTOSKI -v- CRAKER [2015] WADC 151
CORAM: BIRMINGHAM QC DCJ
HEARD: 3 - 5, 7 AUGUST 2015
DELIVERED : 15 DECEMBER 2015
FILE NO/S: CIV 1423 of 2014
BETWEEN: BETI RISTOSKI
Plaintiff
AND
NATASHA DALMA CRAKER
Defendant
Catchwords:
Personal injury - Motor vehicle accident - Assessment of damages - Turns on facts
Legislation:
Nil
Result:
Plaintiff awarded damages of $78,900
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr T R D Mason
Solicitors:
Plaintiff: Simon Walters
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) Aust Tort Reps 81‑043
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15
BIRMINGHAM QC DCJ: The plaintiff was born on 1 October 1970. On 19 April 2013 the plaintiff was injured when the defendant's vehicle struck the rear of the plaintiff's vehicle. Although the impact of the collision was slight, the following day the plaintiff noted pain in the lower left side of her back.
The defendant admits liability for the injuries suffered by the plaintiff and the issue for trial is the quantum of plaintiff's damages in respect of the injuries she suffered.
At all material times the plaintiff was engaged as a trade's assistant/labourer in her husband's plastering business.
The defendant accepts that the plaintiff suffered some injury in the collision and that as a consequence is now unable to do heavy lifting. The defendant further accepts such restriction impacts upon the plaintiff's capacity to work, however disputes the extent of the injuries and incapacity claimed by the plaintiff. The defendant says that the plaintiff's pre‑existing and unrelated medical conditions substantially contribute to any symptoms that impact upon her today.
Evidence
The plaintiff
The plaintiff was born in Macedonia and came to Australia with her husband in 1994. In between raising a family, the plaintiff worked for Peters as a machine operator and later Woolworths as a shop assistant, generally working in a part-time casual capacity during school hours for approximately 8 years.
In 2008 the plaintiff's husband established his own plastering/ceiling fixing business, J & B Modern Day Ceilings. The nature of the tasks involved installing gyprock as is depicted in exhibit 1. The tasks include lifting the gyprock or plasterboard panels – often above head height whilst standing on trestles and securing it in place. The plaintiff described her work duties as including assisting to set up jobs, lifting into place gyprock panels to be installed in ceilings and holding them in position whilst it was secured in place by her husband. She assisted also in installing and finishing the plaster work on cornices. She said the gyprock panels installed varied in weight between 10 kg to 50 kg and were up to 6 m long. At times assistance from another person or a mechanical panel lifter was required for longer and heavier pieces.
The plaintiff said that on the day following the accident she experienced back pain her left side in the lower back. She consulted her general practitioner Dr Chang and was referred for CT and MRI scans. The plaintiff was also referred for physiotherapy including swimming and gym work for approximately seven weeks before ceasing as little real benefit was being achieved.
The plaintiff said that in September 2013 she received a lumbar injection to relieve the pain that had not then resolved. Following the injection the plaintiff returned to work for 2 to 3 hours per day but was required to avoid heavy lifting.
The plaintiff described her duties as essentially cleaning tools, sweeping and picking up rubbish but was restricted by the pain. The plaintiff said that the injury prevented her from doing heavy lifting and she had to look for work that avoided those tasks. She explained that because she was unable to do heavy lifting she was looking for part-time work that did not involve heavy lifting.
The plaintiff said that in March 2014 the plaintiff experienced a sudden onset of dizziness and vertigo that was unrelated to the accident.
When cross-examined the plaintiff was shown lengthy surveillance footage and questioned about the content and the extent to which it showed the plaintiff had been engaged in work activities. The plaintiff acknowledged that she was the person depicted in the surveillance film for extended period on several occasion during September and October 2014.
The two DVD's of surveillance film record the plaintiff's activities on 28 August, 3 September and 5 September 2014 (exhibit 3) and 14, 20, 21, 22, 24 and 28 October 2014 (exhibit 4). The surveillance report of Centaui Group dated 10 September 2014 (exhibit 5) and the Insurance Commission of Western Australia Fraud Investigation summary prepared by Mr David Ambrose (exhibit 6) were tendered by consent.
The surveillance film had been disclosed to the plaintiff's solicitors and viewed by the plaintiff prior to trial. The plaintiff gave her evidence in full knowledge of what she had been visually recorded doing over an extended period. The plaintiff's evidence must be considered in that context.
The plaintiff said that the work was essentially light duties and that she went to work with her husband on the occasions recorded because she was fearful of remaining at home alone whilst suffering vertigo. She said she was scared and emotional and had difficulties standing on the scaffolding to lift plaster board.
The plaintiff said that after she had the injection in September 2013 she was able to go back to work but was unable to do heavy lifting. The plaintiff acknowledged however that surveillance footage showed that she was able to carry a bucket of water weighing approximately 5 kg and was able to undertake a number of similar tasks as recorded on most days. She said that she did not work when she was inside the building and would just sit or stand around, that is to say, she was resting when not being viewed or recorded by the investigator.
The plaintiff said that she helped her husband for approximately six days a week and acknowledged that she had carried a step‑ladder and spent full days working with her husband. She further acknowledged that she had been required to walk over scaffolding and move frames over scaffolding and pick up ladders.
The plaintiff maintained that she had only worked with her husband on those days that she was filmed doing so.
Prior to the surveillance film being disclosed to the plaintiff and her solicitors, the defendant's solicitors administered interrogatories directed to the extent of the plaintiff incapacity.
On 29 May 2015, responding to defendant's interrogatories the plaintiff deposed as follows:
Answer 1
Prior to the occurrence of the accident the duties that I performed for J &B Modern Day Ceilings were helping to install gyprock panels, assisting with the installation of cornices, assisting with the installation of insulation batts, cleaning of tolls(sic) and buckets after use and sweeping the areas of the job site where work was performed. I was working 4 – 5 days per week, 6 – 8 hours per day.
Answer 2
Subsequent to the occurrence of the accident I stopped work.
On 21 September 2013 I had a root sleeve injection. The root sleeve injection caused me to improve and I decided to try some work again. The duties I performed during these times were sweeping the job site and cleaning tools and buckets used. I worked for two consecutive days, two hours per day.
Consequent to this the pain returned and I stopped work completely. exhibit 2)
The plaintiff said that she had recommenced work in 2014 but did not do any heavy lifting. She said that the work she did in 2014 was not her main job.
The plaintiff said that when filmed in the surveillance footage she was then attending work for a different reason, namely that she was sick and wanted to be out of the house. The plaintiff said that she wanted to help her husband even when she was unwell.
The plaintiff said that she was not aware that she had been filmed until 17 June 2015.
Significantly the plaintiff's work related activities as recorded on 3 September 2014 on the same day that the plaintiff had been examined by Mr Hill on behalf of the defendant's solicitors. At that examination, the plaintiff detailed to Mr Hill the extent of her restricted capacity.
The extent of the activities of the plaintiff that were observed and recorded included, inter alia, lifting and carrying ladders, metal stands and trestles, climbing through scaffold handling a ladder, manoeuvre equipment through scaffolding on the upper floor levels of a building, reach in behind seat in vehicle and pick up an esky in bending twisting motion, were carrying an esky, assisting her husband remove plaster cornices from roof rack of a van, involving reaching and lifting above head height, washing and cleaning tools, seemingly mixing plaster and carrying bucket of water. On a number of occasions the plaintiff worked on her own, whilst on others she was assisting her husband. On occasion she was observed to lift and carry tools and materials whilst her husband stood nearby and watched.
During the period 20 to 28 October 2014 the plaintiff was observed to commence works at the building site between 7.30 am to 8.15 am and to remain at the site and viewed from time to time during the day engaged in work related activities for approximately 7 to 7.5 hours on consecutive days (20 to 21 October) and in morning for 3.25 hrs (22 October). On 24 October the plaintiff commenced at 7.30 am work and remained at the site until 3.03 pm.
Given the covert nature of the surveillance, the film was taken from a position external to the premises in which the plaintiff and her husband were then working and did not show any ceiling fixing activities within the building.
Having regard to the plaintiff's answers to interrogatories and the surveillance material, I am unable to accept the plaintiff as a truthful and reliable witness. I do not accept the plaintiff's explanation for the activities recorded, namely that she had only worked on the days that she had been observed. I consider the likelihood of the coincidence of plaintiff only engaging in work activities on those days that she happened to be under surveillance does not accord with the probabilities.
In her answers to interrogatories the plaintiff did not allude to any period of work – light duties or otherwise being undertaken by her and stands in stark contrast to the activities depicted in the surveillance footage. Further, if, as the plaintiff suggests she was then restricted and found tasks painful, it is reasonable to assume that her husband would have assisted her with some of such tasks. The surveillance material suggests that at times he seemingly did not consider that necessary.
In the absence of corroboration by compelling independent testimony I would not give any weight to the plaintiff's evidence on any matter.
Jordan Ristoski
Relevantly the plaintiff's husband, Mr Ristoski, deposed that he initially started working as a ceiling fixer some 20 years ago and formed his own company approximately 10 years ago. He said that he was assisted by his wife on occasions, though initially she found other employment.
Mr Ristoski said that when plaintiff ceased at Woolworths it was more profitable for her to assist him by holding in place the plasterboard while he would fix it into place. He described the task as involving a lot of physical work and that at times up to 20 kg weight was involved.
Mr Ristoski said that subsequent to the accident he was doing the majority of work and had to persist on his own. He said that it was possible to use a panel lifter to lift the gyprock panels but that it takes a lot longer and is not as efficient. Mr Ristoski said that he now sources more subcontractors and that since his wife's accident he is unable to take on as much work.
Mr Ristoski confirmed that he had seen the video surveillance film and recognised the properties where his wife was observed working.
Like the plaintiff, Mr Ristoski said that this wife only worked on the days that she was filmed.
Mr Ristoski said that in relation to the Burt Street, Mount Lawley property that they did not fit the gyprock at that building and the contract only involved the installation of framing for suspended ceilings. He said that he still does a lot of gyprock work and that when his wife was available, she was reliable and he did not have to call on other people.
Mr Ristoski acknowledged that without his wife he was able to do maintenance and light work and that the plaintiff had assisted him doing cornices. He further acknowledged that when subcontractors were engaged to fix the gyprock panels he was available to undertake other work.
Mr Ristoski said that in 2011 and 2012 he was doing an increasing quantity of subcontract work (exhibit 14). He accepted in cross‑examination that the drop in income of $60,000 in 2013 and 2014 was due in part to being overseas on holiday for an extended period and the use of subcontractors in lieu of doing fixing work himself.
I did not find Mr Ristoski a compelling witness. To the extent that his evidence as to the nature and duration of the plaintiff's activities, including the improbable consequence of timing as mentioned above, accords with the plaintiff's testimony it is similarly rejected as being unreliable and against the probabilities.
Dr Andrew Harper
Dr Harper is an occupational and public health physician. He reviewed and treated the plaintiff. In his report on 4 April 2014 Dr Harper noted the plaintiff's symptoms as including low back pain, described as a knife‑like sharp pain in the lower left lumbar sacral region. The pain was constant, worse in the morning and fluctuating during the day according to activity. It was aggravated by bending, doing housework, driving and walking and seating and prolonged standing. The pain radiated to the leg.
Dr Harper recorded that in March 2014 the plaintiff developed vertigo and nausea and further experienced mood changes in that she was feeling anxious as a result of the vertigo. He was informed by the plaintiff that she was free of significant emotional symptoms prior to the onset of vertigo.
Dr Harper considered that the plaintiff had sustained a strain injury to the lower back resulting in lumber disc herniation and radiculopathy. He considered that she was incapacitated for all forms of gainful employment.
On 29 June 2015 Dr Harper reviewed the surveillance films that had been disclosed by the defendant. He acknowledged that the plaintiff was seen to perform activities that were in excess of what she was capable of doing in April 2014 and that there had been significant improvement in her condition in the interim.
After reviewing the plaintiff again on 14 July Dr Harper revisited his opinion in the light of what had been displayed in the surveillance footage. He noted that he was able to observe a full range of back movements. There was tenderness of the lower back and potentially the facet joint area on the left. The plaintiff had persistent sensory changes in the left leg consistent with radiculopathy. The plaintiff's ability to squat was limited due to low back pain. Dr Harper opined that the plaintiff's injury was a strain of a lumbar of the spine with disc herniation and likely irritation of the L5 nerve root. Degenerative changes in the lower back were identified in the CT scan and MRI and were of moderate severity. He considered that the plaintiff's work capacity was limited and was as demonstrated in the surveillance films. In his opinion, the plaintiff had a retained capacity to undertake restricted work and was unfit to return to a pre‑accident work as a labourer. He considered that the plaintiff had a retained capacity for light physical work and work as a shop assistant. He considered that she was unfit for work in an office or as a driver or factory hand or labourer. In his opinion, the plaintiff needed to avoid heavy lifting and repetitive work above head level and repetitive bending and prolonged static postures.
Dr Harper considered plaintiff's condition was stable and that the injuries would not cause any premature retirement from the general workforce but it would preclude her from returning to her pre‑accident occupation as a ceiling labourer. In his opinion, the plaintiff's injury was of moderate severity with a mild to moderate residual disability affecting the lower back and left leg.
Dr Harper acknowledged that the unrelated vertigo was a significant contributor to the plaintiff's restricted work capacity.
Dr Harper found neurological signs consistent with the radiological evidence when he examined her. Dr Harper rejected Mr Hill's assessed loss of function of 5% as being too low. In his opinion the plaintiff had a moderate loss in the order of above 10%.
In cross‑examination Dr Harper confirmed that the plaintiff had disclosed to him that the only time she worked was those occasions where she had been filmed and that it only involved two episodes of work.
Dr Harper said that the plaintiff would be unable to return as assistant to her husband although the restriction was more than just heavy lifting. He considered however that the vertigo would also impact upon her capacity to work as a labourer in a construction site particularly as a ceiling fixer.
Dr Harper said that on interrogating the plaintiff in relation to what he had been viewed on the film the plaintiff had volunteered that she was carrying awkward but light objects.
Dr Harper said that the film did not demonstrate prolonged activity over hours. He accepted however that the absence of video was a consequence of the plaintiff otherwise being out of sight inside of the building where the work was being undertaken. Whether she worked in there or not is dependent upon other evidence.
Dr Harper considered that in regard to her pathology, the plaintiff's symptoms and the nature of her condition did not translate into the plaintiff's ability to undertake work for any sustained period.
Dr Harper opined that the video were a very biased mechanism for assessing patients and referred to articles that he had written on the subject. Seemingly Dr Harper had not appreciated the duration of the periods of surveillance when informed that the plaintiff had been observed on some days to be at work continuously for in excess of seven hours.
When asked whether the duration of the time that the plaintiff was seen to work altered his opinion Dr Harper responded (ts 79):
It tells me that she is able to be at work over that period time.
It does not tell me that she can do heavy lifting of a manual
labourer, ceiling fixing.
The impression I gained was that Dr Harper had, at best, made a very cursory review of the surveillance material and was somewhat dismissive of its content. Dr Harper's recollection of the contents was limited and his attention to detail in respect of the duration and nature of the activities recorded was seemingly wanting. His notes had not referenced the activities observed and recorded on a number of the days. Further, Dr Harper has seemingly not appreciated that on several of the days the plaintiff had work a full day. Dr Harper seemingly accepted without reservation that the plaintiff had only worked on those days that she had been filmed working.
As noted above I find such coincidence against the probabilities.
Dr Nick De Felice
The consultant psychiatrist Dr Nick De Felice was engaged by the plaintiff to report. He considered there was no limitation on the plaintiff's current work capacity from psychological symptoms arising from her accident.
In his report dated 26 June 2014 [sic 2015] Dr De Felice commented upon the observations recorded in the surveillance material that had been provided to him. He could not reliably conclude that it was the plaintiff.
In his opinion none of the DVD material particularly shed any light on Ms Ristoski's psychiatric symptoms.
In his opinion psychological symptoms suffered by the plaintiff did not affect her work capacity nor did it leave her with any residual psychiatric disability. He was unable to conclude that she had exaggerated any psychological symptoms.
Dr Chee Meng Chang
The plaintiff's general treatment and history post-accident was described in the reports of Dr Chee Meng Chang (exhibits 9A, 9B and 9C). Dr Chang recorded that the plaintiff had taken analgesics and attended physiotherapy but did not obtain benefit from those. After being referred to a root sleeve injection she found benefit from the procedure and then progressed to an exercise program.
In a report of 14 July 2015 (exhibit 9C) Dr Chang, having viewed the surveillance material reported that the plaintiff was shown to have no difficulty bending over or lifting. Dr Chang opined that the plaintiff was fit for full‑time work as a consequence of the range of activities recorded. Dr Chang considered however that the CT and MRI findings were such that the plaintiff should not engage in heavy lifting.
Dr Ross Goodhardt
Dr Ross Goodhardt, a consultant neurologist, gave evidence for the plaintiff and his reports that at 15 July 2014, 28 June 2015 and 20 July 2015 were tendered. Dr Goodhardt reported that when he first examined the plaintiff in July 2014 the plaintiff reported that she had been in good health prior to the accident although had received some occasional treatment for vertigo but with no previous history of back injury. On observation the plaintiff was unable to walk on her left toes due to pain and there was a significant reduction of the range of movement in the thoraco‑lumbar spine with flexion and also on extension. A MRI scan of the lumbar spine performed on 3 January 2004 showed moderate disc degeneration noted at L4/5. In his opinion the plaintiff had sustained a predominant soft tissue injury to the thoraco‑lumbar spine with accompanying radicular symptoms in the left leg. Dr Goodhardt considered that the plaintiff was unable to return to her pre‑accident occupation as a labourer. He opined that the plaintiff sustained a permanent 12.5% loss of full efficient function of her thoraco‑lumbar spine as a result of the injuries, her symptoms being classified as moderate severity.
In his report of 28 June 2015 Dr Goodhardt commented on surveillance material that he had then viewed. He noted that the footage on 14, 20 and 21 October did not reveal any significant restriction in the activity demonstrated during the period. He considered that that plaintiff had sustained a predominant soft tissue injury to the lumbar spine. Dr Goodhardt remained of the view that the plaintiff had suffered 12.5% loss of full or efficient function of the thoraco‑lumbar spine. Following his examination of the plaintiff on 20 July, Dr Goodhardt noted that the plaintiff had returned to some work duties and had assisted her husband as a ceiling fixer in cleaning tools and carrying equipment.
On examination there was restriction on flexion and extension in the thoraco‑lumbar spine. He reported that when discussing the video surveillance with Ms Ristoski, Ms Ristoski confirmed that she had recalled undertaking the activities depicted and that on the days following that recorded activity she had been required to increase her Nurofen therapy. Dr Goodhardt confirmed that the plaintiff had continued to avoid moderate to heavy cleaning duties at home.
Dr Goodhardt said that following his direct questioning of the plaintiff he had no reason to change his opinion. He considered the plaintiff continued to experience symptoms including accompanying radicular symptoms in the left leg.
In cross‑examination Dr Goodhardt acknowledged that prior to speaking to the plaintiff he observed that there did not appear to be any significant restriction in the activity demonstrated during the period recorded in the surveillance footage. Dr Goodhardt noted that the video surveillance post-dated his review and his assessment that the plaintiff had 12.5% loss of full efficient function of the thoraco‑lumbar spine as a result of her injury was unchanged. He considered that her symptoms were likely to persist for the foreseeable future.
Dr Goodhardt acknowledged however that when viewing the activities the plaintiff recorded on 5 September he did not see any major impairment to her mobility. When invited to comment on the plaintiff's activities recorded, including the plaintiff carrying a bucket of water and a ladder, Dr Goodhardt queried whether the plaintiff was able to do that for 40 hours per week or 60 hours per week and continue for a week in, week out or whether in fact the plaintiff was required to rest for an afternoon or a day or two or increasing her analgesic requirements after such activity.
Dr Goodhardt said that when he discussed it with the plaintiff she told him that she could cope with the duties depicted but she was using or relied on painkillers at the time. Dr Goodhardt said:
These are the sorts of questions that I asked her directly in relation to what I have seen in the video. And I gained the impression she was not able to sustain that sort of activity at that sort of regular basis. She could certainly do it from time to time. (ts 118)
In relation to the plaintiff's capacity for sustained or prolonged activity Dr Goodhardt's said that he had gained the impression that the plaintiff would have to rest up for a period and that if she carried a number of buckets of water or whatever she would not be able to sail through that and then turn up the next day.
Dr Goodhardt acknowledged that it would be important if the plaintiff was shown to have been working for extended hours from 7.30 am to 3.00 pm carrying objects, eskies, lifting heavy items and negotiating scaffolding. Upon re‑checking his notes it was apparent that Dr Goodhardt had seemingly only had regards to the activities of the plaintiff and noted her as working on 14, 20 and 21 October 2014. He said that he stopped making notes after viewing the 21 October activities.
The impression I gained was that Dr Goodhardt had not viewed all of the relevant surveillance material and was seemingly unaware as to the length of the time that the plaintiff had worked each day together with the number of and frequency of days worked. Dr Goodhardt accepted that the surveillance material in fact suggested there was fairly prolonged activity over a number of consecutive days. He further accepted that such fact could well be significant.
The defendant's case
Mr John Hill
Mr John Hill, a consultant orthopaedic surgeon, gave evidence for the defendant. His reports dated 10 March 2014, 8 September 2014 and 17 February 2015 were tendered (exhibits 19A – 19C).
In his report of 10 March 2014 Dr Hill noted that the CT scan conducted on 3 January 2014 showed moderate L4/5 disc degeneration greatest on the left and no evidence of impingement on the L4 or L5 nerve roots at that level. There was mild L3/4 disc degeneration. Dr Hill considered that it would be necessary for the plaintiff to have some vocational assessment and that there would be some risk of the return to awkward or heavy labouring would risk aggravation of the pre‑existing degenerative changes in the lumbar spine.
On 3 September 2014 Dr Hill examined the plaintiff. He was told that her vertigo had settled. The plaintiff described to him that she continued to have left low lumbar back ache that was aggravated by bending activities for example, bed making, vacuuming and going upstairs. She described this being slightly better than when previously examined.
Mr Hill considered that Ms Ristoski had lumbar spondylosis associated mechanical back pain and referred mid‑left radicular leg symptoms. Dr Hill said he would not recommend that she return to her pre‑accident employment as a labourer and specifically a ceiling fixer. He considered that the plaintiff had significant pre-existing degenerative changes of the lumbar spine and as such there was increased risk of aggravation by such activities. The plaintiff was however fit for a wide range of occupations that did not involve heavy lifting, awkward physical activities such as would be required as a ceiling fixer and repetitive bending activities. In his opinion the plaintiff had been left with a mild to moderate disability affecting her lumbar spine. He assessed her disability as being the equivalent of a 10% loss of efficient function of her thoraco‑lumbar spine.
In his report of 17 February 2015 Mr Hill reported on his observations following viewing the surveillance film recording the plaintiff's activities.
In his opinion the activities shown in the surveillance material discredited the plaintiff's history given to him. He considered that the activities recorded displayed that the plaintiff had more apparent agility and ability than had been indicated to him at any time of his examination on 3 September 2014.
Significantly the second item of activities was recorded on 3 September 2014 - later on the same day that the plaintiff had been examined by Dr Hill.
Dr Hill considered that the activities displayed discredited the plaintiff's presentation and that there was no requirement for plaintiff to have domestic assistance to do more awkward domestic activities. Further Dr Hill considered that the plaintiff had demonstrated that she was then able to return to at least a significant component of her pre‑accident employment as an assistant to her husband.
Dr Hill was of the view that whilst the plaintiff should not undertake heavy lifting, she was obviously able to undertake awkward physical tasks and bending activities. In his opinion the plaintiff was able to lift and carry quite heavy awkward items such as ladders and metal trestles and had a demonstrated capacity to undertake overhead activities.
Dr Hill could see no reason why the plaintiff would not be able to undertake such activities in the confines involving ceiling fixing. The only restriction he recommended was in respect of heavy lifting activities.
Dr Hill opined that the level of permanent disability previously assessed should be reduced to no more than 5% loss of the efficient function of her lumbar spine as a result of her injuries sustained in the accident.
Dr Hill acknowledged that without the accident the plaintiff might have been able to continue in her employment with an asymptomatic degenerative spine for some time.
Whilst accepting in cross-examination that the surveillance material only demonstrated short snapshots of activity and that the items lifted appeared to be light, he observed the plaintiff's recorded movement on the scaffold was different to demonstrated to him upon examination on 3 September. The plaintiff had told Dr Hill that she had not done walking that it would hurt her back and her children did the washing and cleaning.
Dr Hill accepted that what the plaintiff was recorded doing on 3 September was not inconsistent on the objective findings with how she presented on the day. Dr Hill considered however that it was important that the plaintiff was seen to be able to work on successive days for a reasonably long number of hours. Relevantly it discredited what subjectively the plaintiff had told him on 3 September namely that she could not do activities and that she avoided some. Significantly the plaintiff had not indicated to Mr Hill that she had returned to helping her husband in the workplace as she did later that day.
Dr Hill said that he would expect that the plaintiff's capacity would have improved but that the activities observed in the surveillance material were more significant and that it was difficult to accept there would have been such significant improvement in what she perceived to be her ability within that time frame.
Findings
As noted above, I do not accept the plaintiff as a truthful or reliable witness. I have similar reservations in respect of the evidence of Mr Ristoski for the reasons stated.
I found Mr Hill to be a thoughtful, thorough witness whose evidence is in contrast to that of Dr Goodhardt and Dr Harper.
Dr Goodhardt presented as being somewhat dogmatic in his approach and steadfastly refused to acknowledge a range of activities observed in the plaintiff as being significant. Dr Goodhardt in particular and Mr Harper had both seemingly been fairly cursory in their examination of the surveillance material and dismissive of it. It was apparent from Dr Goodhardt's somewhat limited notes that seemingly a significant portion of the surveillance film was either not viewed or alternatively not viewed thoroughly by him. If Dr Goodhardt had viewed all of the material I am confident that he would have made a note of it. He did not do so. On the evidence I find that Dr Goodhardt did not have proper regard to all of the surveillance material and accordingly with the extent to which his opinion and observations were unaffected by it, I prefer the evidence of Mr Hill.
I prefer the evidence of Mr Hill to that of Mr Goodhardt and Dr Harper to the extent that there is any difference in opinion.
I do not accept the evidence of the plaintiff and the extent to which she suffered the disability that she claims. I accept that the plaintiff has suffered some injury to her spine and loss of effective function but in my opinion it is more proximate to the level of 5% as opined by Mr Hill than 10% to 12% as assessed by Dr Goodhardt.
Findings
The plaintiff is entitled to be compensated for the loss of earning capacity as opposed to her loss of earnings. It follows that the correct question is whether as a result of the accident the plaintiff has been rendered less capable of earning an income. In determining that I am required to look at her capacity of work beyond particular employment in which she was engaged at the time of the accident. Compensation is only payable for the loss of earning capacity as productive of financial loss: Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 per Murphy JA (Pullin JA and Newnes JA agreeing).
In the present case the distinction between loss of earnings and loss of earning capacity is significant because of the difficulty in the plaintiff proving precisely how her inability to work as a labouring assistant to her husband in his business as a ceiling fixer has impacted upon her earnings. It is apparent from the evidence however that she is unable to partake in all of the duties that she would otherwise have done as a labourer in that role. In particular it is accepted that she is unable to perform heavy lifting.
Notwithstanding the difficulty and the absence of precise evidence I am required to assess how the plaintiff might be compensated with respect to the injury occasioned by the defendant's negligence.
The plaintiff's counsel, Mr Clyne, urges the adoption of the approach taken in Bowen v Tutte (1990) Aust Tort Reps 81‑043, namely to take account of the existence of a residual earning capacity by deduction of a percentage amount from the figure calculated for the total loss of earning capacity.
There is no dispute that the plaintiff's asymptomatic degeneration became symptomatic as a consequence of the accident. Further, the preponderance of the medical evidence is that her spine is such that she should never again return to heavy labouring aspects of her previous employment as a labourer in her husband's heavy ceiling fixing business. That said however, I am satisfied when regard has had to the surveillance material, particularly that recorded in October 2014, the plaintiff has a capacity to do a variety of lighter duties and seemingly to work continuously at that rate.
I do not accept the plaintiff's evidence that in the time off camera she was not otherwise actively engaged. Further, the extent to which the plaintiff was engaged in the ceiling fixing business and working as a labourer prior to the accident also is wholly dependent upon the plaintiff's evidence and that of her husband. Mindful that the plaintiff was engaged to work at Woolworths and other places part‑time during the same period, the extent to which she was engage in the ceiling fixing business of her husband must be questioned.
Further, the nature of the business operated by the plaintiff's husband did not necessarily require heavy lifting at all times, particularly when the nature of the work related to installing the framing for suspended ceilings with the gyprock then installed by subcontractors.
During the financial year ending 30 June 2013 the plaintiff had been employed at Woolworths and part‑time work also at Peters and Browns (ts 94 ‑ 95).
In the years 2012 to 2014 the plaintiff and her husband's business had been engaged in contract work. The contract expenses recorded in the accounts of J & B Modern Day Ceilings for the subcontractors for the financial year ending 2012 was $121,000, $76,000 in 2013 and $43,000 for 2014. It was apparent that the plaintiff's husband business was paying more for contract labour in 2012 before the plaintiff was injured. Further, Mr Ristoski said that he was giving work out as he was unable to keep up with it.
Exhibits 14, 15 and 16 record the J & B Modern Day Ceilings profit and loss statements for the year ending 30 June 2011 – 30 June 2014 as follows:
Year
Profit
Income
2011
$102,149
$248,253
2012
$143,385
$348,093
2013
$170,303
$339,815
2014
$149,610
$281,013
It is acknowledged by Mr Ristoski that he was doing more work for himself and did not have as much work in 2014. Further, Mr Ristoski accepted that the use of subcontractors was a regular practice prior to the plaintiff being injured (ts 97). Significantly, in relation to the 2014 profit figure, there was a considerable reduction in the amount of contract work undertaken. Further, the income for that year was affected by reduced work availability together with the impact of the plaintiff and her husband being absent overseas on a planned holiday in July/August 2013 (ts 101).
An additional factor to be considered in determining the extent to which the plaintiff's reduced capacity sounds in a loss of income is the extent to which her capacity to perform lifting tasks (regardless of the accident) was affected by the onset of vertigo that limited her capacity in any event.
To the extent that there is any loss of income as a consequence of the plaintiff's injury it is difficult to discern on the evidence. It is accepted that the parameters of the plaintiffs employment have been reduced by the injury and the corresponding restriction to her capacity consequent upon the need to avoid heavy lifting however it is not possible to calculate or quantify that loss with any precision.
The plaintiff is now 45 and affected by other restrictions that are not incident related.
In my view modest global allowance in respect of the past economic loss for the 2 ½ years post‑accident period is appropriate, particularly in respect of the immediate post-accident period. Giving due allowance for the impact of the onset of vertigo and reduced work generally with downturn in business activity, I consider that a global award of $12,500 is appropriate in respect of the plaintiff's past economic loss.
In assessing the plaintiff's future earning loss it is necessary to consider the extent to which the reduction in the plaintiff's future loss of earning capacity results from the plaintiffs reduced capacity. Whilst the plaintiff is now longer able to do heavy lifting there are many aspects of her work with J & B Modern Day Ceilings that are well within her capacity. It is apparent that a number of aspects of that business do not require heavy lifting at all, indeed as was the case pre-accident. It is seemingly unlikely that the plaintiff would find labouring work in the open workforce outside the work she did for her husband in his business.
Further, the effect of the onset of vertigo and its acknowledged frequency, must necessarily impact upon the plaintiff's capacity to perform the activities required of her, such as standing on trestles and holding the sheets of gyprock panels above head height. Notwithstanding such factors, I am satisfied that the plaintiff is entitled to some allowance in relation to future economic loss.
I accept that any loss should recognise that the plaintiff is 45 years of age and that save for the accident would have been able to continue working for another say 15 to 20 years. I further accept that the plaintiff had a capacity on 2013 figures to earn in the order of $1,000 per week assisting her husband for approximately 30 hours per week. Further, in alternate employment for a corresponding period the plaintiff's income is likely to be less than that figure.
Given the difficult nature of the work and the other factors militating against the plaintiff continuing to work as a labourer in her husband's business I consider that it is reasonable to assume that the plaintiff would not have worked in that capacity much beyond the age range of 60 ‑ 62. Adopting such assumption a straight calculation if the plaintiff is wholly disabled from employment (using 6% tables) would sound in a loss of income in the order of $560,000.
Adopting a Bowen v Tutte approach and assessing a percentage of lost capacity however is not easy and must be approached cautiously. I am compelled on the evidence to have due regard to a number of variables including, inter alia:
1.the extent of the plaintiff's retained capacity as demonstrated by the surveillance material and generally recognised by each of the doctors (save for the question of heavy lifting);
2.the impact of vertigo upon her ability to perform such work activities in the future;
3.the risk her pre-existing degeneration being aggravated in the future in any event as noted by Mr Hill (exhibit 19C, page 5);
4.possible downturn in the plaintiff's husbands business;
5.the extent to which the absence of the plaintiff's services might otherwise be met by the use subcontractors to undertake the heavier work as had occurred prior to the injury in 2012;
6.the extent to which the plaintiff's incapacity is confined to heavy lifting only;
7.the prognosis of some continued improvement of the plaintiff's injuries; and
8.the extent to which there are aspects of her husband work that are within the plaintiff's capacity that permit her to work on a full time basis.
Having regard to all of the circumstances I consider that the plaintiff's lost capacity for future employment to be in the order of 5% ‑ 10%. Adopting a mid-range of 8% and rounding up I find the plaintiff is entitled to an award in respect of future loss of $45,000.
Non-pecuniary loss
Mindful that the initial impact was not severe, the plaintiff did not have symptoms until the next morning or visit her doctor until after the weekend and further was able to go on a pre‑arranged overseas family holiday for some six weeks a few months later, the extent to which the plaintiff suffered disability must be viewed with some scepticism. It was diagnosed as predominantly a soft tissue ligamentous injury with some disturbance but no actual nerve root compression.
Whilst there has been some interference with the plaintiff's lifestyle, however it is seemingly not of great magnitude and not necessarily consequent upon the injury suffered at the hand of the defendant. The impact of the onset of vertigo is unrelated to the accident and has undoubtedly affected the plaintiff considerably. There is a prognosis with continued improvement in respect of her injuries.
In the circumstances, at their highest, the plaintiff's injuries are not more than 10% of the most extreme case.
In the circumstances the plaintiff is entitled to an award of general damages $19,900.
Future medical expenses
It is accepted that some allowance for future treatment should be made and in the circumstances I consider an allowance of $1,500 to cover any on-going physiotherapy and exercise expenses together with any over the counter medication as required.
I find that the plaintiff is entitled to an award of damages in respect of the injuries suffered on 19 April 2013 in the sum of $78,900 comprised as follows:
General damages
$19,900
Past economic loss
$12,500
Future economic loss
$45,000
Future medical expenses
$1,500
Total award
$78,900
0