Stavreski v Merrett - [2004] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STAVRESKI -v- MERRETT [2004] WADC 126

CORAM: FENBURY DCJ

HEARD: 8 JUNE 2004

DELIVERED : 18 JUNE 2004

FILE NO/S: CIV 184 of 2003

BETWEEN: STEFCO STAVRESKI
Plaintiff
AND
RICHARD CHARLES MERRETT
Defendant

Catchwords:

Damages - Negligence - Sprain to neck and wrist - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act, s 3C

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Brian C Sierakowski

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

Southgate v Waterford (1990) 21 NSWLR 427

Case(s) also cited:

Nil

FENBURY DCJ: This case requires an assessment of damages for personal injury suffered by the plaintiff in a motor vehicle accident that occurred on 17 November 2001.
As a result of the accident the plaintiff suffered soft tissue injury to his neck and right wrist.
The dynamics of the accident were that the plaintiff was executing a right hand turn having arrived at a T‑junction. He travelled through the intersection whilst facing a green light, turning right. The defendant, approaching from the plaintiff's left, had contravened a red light. The plaintiff's vehicle struck the defendant's vehicle on its right hand side at about the centre. The plaintiff's vehicle, a Eunos, was spun around approximately 180 degrees. It suffered damage in excess of its value and was "written off" by the insurance company.
The plaintiff maintains that he has suffered from symptoms in his neck and shoulder and in his right wrist more or less since the accident. At the commencement of the trial the plaintiff abandoned his claim for loss of earnings or earning capacity. The case therefore requires an assessment of the damages for pain and suffering, loss of amenities and loss of enjoyment of life. There is also a very minor claim for travelling expenses.

The plaintiff

The plaintiff was born on 11 October 1978. At the date of the accident he was 23 years old. At the time of trial he was nearly 26.
Following his completion of year 12 at Mirrabooka Senior High School the plaintiff attended TAFE where he commenced a four year course in computer systems engineering which he completed in 1999. During his tertiary education the plaintiff did not play any sport nor engage in any regular exercise.
Following completion of the TAFE course the plaintiff attended at Edith Cowan University on a full time basis where he commenced another computer course, gradually reducing to part‑time when he started working with the Education Department in 2001.
The plaintiff commenced employment with the Department in that year as a computer technician. It was full‑time work. He worked at Mirrabooka, Morley and John Forrest High Schools. He would spend one or two days, as the case may be, at each of those schools, every week. The work involved repairing, replacing and upgrading computers.
In due course the nature of the plaintiff's employment with the Department changed and he commenced working at the Clarkson Community High School as a network administrator. This work was different to the previous work the plaintiff performed where he was required to cart about heavy computers. As an administrator he spent far more time sitting in front of a computer. He was mainly involved in "software" work.
Prior to the accident the plaintiff had never suffered from any significant physical ailments and specifically he had never suffered any significant injury to his musculo skeletal system.
Immediately following the accident the plaintiff's recollection is that he felt pain in his right wrist. He was also shocked. He went home and went to bed. The next morning he found that he had pain in his neck, down the middle and at the back of it and also into his right shoulder at the top of the shoulder blade. It felt like a cramping pain especially when he lifted his head and turned his head. He did not go to work that day because he was feeling unwell. He thought that his symptoms would abate. He did not seek immediately medical attention.
Approximately 10 days later the plaintiff attended upon his general practitioner, Dr Deleuil, who wrote two reports being Exhibits 1A and 1B. Dr Deleuil had been the plaintiff's general practitioner since birth. He knew the plaintiff very well.
At the time the plaintiff went to see Dr Deleuil he was suffering from pain in his neck and with headaches. He could not concentrate because of the headaches. In his report Dr Deleuil described his findings on that first post‑accident consultation, being that the plaintiff "had a wrenching injury to the spinal support muscles in the affected areas". He prescribed rest and suitable analgesics. He also referred the plaintiff for physiotherapy and provided him with anti‑inflammatory medication. Upon review the plaintiff still had a limited range of movement.
Upon further review by Dr Deleuil's locum on 31 January 2002 the plaintiff's medication was changed. The diagnosis of soft tissue injury to the neck and dorsal spine "was confirmed". By that time, apparently, the plaintiff's symptoms in his right wrist had settled.
Dr Deleuil did not see the plaintiff again until 23 March 2002 where he noted the plaintiff's complaints were of ongoing problems exacerbated by his sedentary occupation. He prescribed Feldene.
In his initial report Dr Deleuil felt the plaintiff's neck condition would gradually improve with time.
According to the plaintiff's evidence after seeing Dr Deleuil and being referred for physiotherapy the plaintiff attended on eight occasions at an unnamed clinic in Tuart Hill. The plaintiff found the physiotherapy treatment very unpleasant. He always felt worse after a treatment than he had before. It was painful. He reached the view that he was doing himself more harm than good so he stopped seeking such treatment.
The plaintiff's evidence was that it had been suggested that he exercise more. He commenced swimming. This helped occasionally but only in the short term. The plaintiff also maintained that the various medications prescribed by Dr Deleuil had made him feel sick.
At work the plaintiff stated that he found it very difficult to concentrate. However, he did not take any time off because "schools rely on their computers" and he felt he was duty bound to battle on.
During the remainder of 2002 the plaintiff said that he occasionally went to the gym but found that exercises did not help him.
The plaintiff did not describe any specific adverse effect of his residual symptoms upon his social life but complained about discomfort in the work place. With respect to his wrist he said that he could not do heavy lifting at work. With respect to his neck he said that sitting would make it ache and "it was always there". When he had discomfort he would take Panadol. He needed Panadol about two or three times per week.
The plaintiff said that Feldene and Brufen made him feel ill. He said that he attended upon his general practitioner in 2002 on a couple of occasions but no more than that because "there wasn't much he could do for me".
In 2003 the plaintiff stated that his symptoms were a little less intrusive. He still had headache and neck pain but not as often as in the previous year. He said that his wrist pain still troubled him occasionally especially when working on his computer for lengthy periods of time.
In 2004 the plaintiff said that his headaches were about the same, occurring once or twice a week. Similarly he had neck and shoulder pain with about the same regularity. He said that the shoulder pain and neck pain were always "together". When he had his aches and pains they lasted about a day. The pain included a numbing sort of sensation sometimes and "gets really annoying". The plaintiff said that he found it hard to relax and to get to sleep. He found he could not do housework or gardening as easily as previously.
The plaintiff married in 2003 and he and his wife bought a house. The house required some renovations. Over a period of a few months in 2003 the plaintiff painted four rooms in the house including the ceiling. He is right handed. He used a paint brush and not a roller. His evidence was that he had a significant increase in symptoms in his right wrist following that activity. He also said that when he was doing the ceilings his neck would cramp up a bit.
On the issue of whether or not he would take medication to assist his symptoms the plaintiff says that he always preferred not to use drugs at all. He does not go to the gym at all and nor does he engage in any exercise. He took the view that these activities did not do him any good.
In his evidence the plaintiff was calm and relaxed in his demeanour. He was casual, if not offhand, in his description of his circumstances. I never had any reason to doubt what he said nor was he cross‑examined upon the basis that there was much that was contentious.
In Dr Deleuil's second report he describes the plaintiff complaining of a return of his neck symptoms in January 2003. He was seen again in March 2003 and the doctor's impression was that the plaintiff "had reached a plateau". The doctor reported:
"His neck was still painful. The most painful movement was extension and he had reduced range of movement on rotation to the right. He advised he had a new job which required more computing. This made his pain worse. He again complained of pain in his right wrist and he was tender in the middle of his carpus. I had the wrist x‑rayed again…and there was no abnormality on plain x‑ray.
After being seen on 15 March 2003 the plaintiff was again seen on 9 June where –
"He complained of pain in the cold weather. He did not take any analgesics for the pain. He was computing all day in his vocation."
The plaintiff was again seen on 12 April 2003 where there was little change.
In his summary and response to specific queries Dr Deleuil observed that the plaintiff's symptoms seemed to have deteriorated as a result of changes in his work place. He felt that the plaintiff's symptoms should settle with time. There was no cause for active intervention.
In cross‑examination Dr Deleuil said that he was surprised the plaintiff had not come to see him over the previous six months. But he said that the plaintiff was "a retiring boy" and "not pushy". He said that the plaintiff was a young person who should recover quickly from an injury like this but that the plaintiff, like some people, had not done so. He said it was "very heartening to know that the plaintiff had painted four rooms of his house including the ceiling".
The plaintiff was not referred by his general practitioner for any specialist opinion or treatment.
However the plaintiff's solicitors referred him to a neurosurgeon, Mr Peter Watson, who wrote two reports dated 4 April 2002 and 7 April 2004. Mr Watson's first report is uncontroversial and unsurprising and really says little more than what had been said by Dr Deleuil.
When seen two years after the first report Mr Watson observed the plaintiff:
"Describes his ongoing neck pain as being in the superior cervical spine at C1 and C2 and nuchal or occipital region headache. The pain radiates down the paraspinal muscles but principally on the right side into the trapezius muscle and across to the right shoulder. He then has pain separately into his right wrist which he describes as being exacerbated by any attempts at lifting."
In his opinion Mr Watson says that the plaintiff does continue to suffer symptoms of soft tissue and ligamentous nature to the cervical spine with referred pain into the right arm. He still felt the plaintiff's symptoms would gradually settle in time. With reference to the need for exercises and perhaps a swimming programme and membership of a gym Mr Watson said that he anticipated the plaintiff would require "further treatment for another two to three years".
In cross‑examination Mr Watson expressed ignorance of the fact the plaintiff had painted four bedrooms in his house. He agreed that this might have explained the pain and discomfort the plaintiff felt in his wrist. He said that painting certainly can also affect a person's neck. He reiterated that he thought that an average recovery for an injury of this kind was two to three years post‑accident. He thinks that the plaintiff needs to do exercises and swimming but there is no further need for him to attend for neurosurgical review.
Apart from the date of the accident, and perhaps the next day, the plaintiff has worked full‑time since the accident. He continues to do so.
The plaintiff has been able to cope with life with fairly minimal medical interventions. The plaintiff does not like physiotherapy because it makes him feel uncomfortable. He does not take prescription analgesic or anti‑inflammatory medication because they make him feel unwell. He takes Panadol on occasions. The plaintiff is perfectly entitled to have these views about physical therapy and medication and he is perfectly entitled to decline to follow the various medical advices he has received.
However the plaintiff's views on these matters may well have other significance. The plaintiff has only resorted to physiotherapy for the one series of treatment and this was early in his post accident history. He had eight physiotherapy treatments on that occasion. He has not sought relief from physiotherapy since. Yet he complains of symptoms at all material times.
I think that if the plaintiff's symptoms were as significant as he says, he would have persevered with physiotherapy for longer or sought like relief at a later date. The plaintiff did not do so because the treatment caused unacceptable discomfort. Accepting that explanation at face value, and assuming competent physiotherapy treatment, it suggests that the after effects of the treatment, the aches and pains, were more significant than the symptoms in respect of which the plaintiff sought relief. That seems to me to place the plaintiff's symptoms at the lower end of the scale of loss of amenities, pain and suffering in the circumstances.
A similar observation might be made of the plaintiff's disinclination to take prescription medication in the form of analgesics or anti‑inflammatories.
On another matter I have the clear impression from the evidence put before me that the plaintiff's complaints of pain and discomfort, made in the witness box, are less vociferous than those he implicitly made to the authors of the various medical reports tendered in evidence. Given his personality and Dr Deleuil's description of him, perhaps less significance than otherwise should be attached to the plaintiff's casual presentation in court. I do have the suspicion that he understated his symptoms in his evidence in the witness box.
In cases of soft tissue injury for which there is no independent corroborative evidence it can be very difficult to assess the extent of a person's symptoms. It is a very personal thing. The combined effect of the matters to which I have made reference seem to me to support the view that the plaintiff's symptoms were not that bad. To describe them as having "nuisance value" only, would be harsh. But the symptoms seem to have been tolerable. They have been endured for two and a half years and they continue.
By reference to the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act a limit is imposed upon the award of damages that can be made for non‑pecuniary loss in cases such as this. By s 3C(3) the prescribed maximum amount at this time, that can be awarded under this head of damages, is $249,000. This amount can only be awarded for a case that was assessed to be "a most extreme case". The task for the Court is to assess, by the expression of a percentage, where the plaintiff's case falls, but keeping in mind that the statutory maximum retained for the most extreme case is $249,000. This approach is in accordance with that spelt out in Southgate v Waterford (1990) 21 NSWLR 427 at 440.
A person who was rendered a quadriplegic as a result of an accident would seem to be accepted as falling into the class of a most extreme case. Having regard to the impact that quadriplegia would have on a person's non‑pecuniary loss, and having regard to the effect that this accident has had upon the plaintiff's loss in that regard, a fair assessment is that the plaintiff's injuries amount to about 8½ per cent of a most extreme case. Thus, the plaintiff would be entitled to $21,165 and after deducting amount B which is the sum of $12,500 this gives a sum of $8,665 which I award for the plaintiff's non‑pecuniary loss.
With respect to travelling expenses the amount claimed is the grand sum of $49.70. This is based upon calculations spelt out in a brief schedule assuming 35 cents per kilometre. The plaintiff's eight attendances upon a physiotherapist and his seven attendances upon his general practitioners, were not disputed. Although there is no evidence about rates before me, or about distances, given the lack of disputation upon the matter I am prepared to make an award but I think 35 cents per kilometre is excessive. I award the plaintiff the sum of $35 for travelling expenses. Accordingly the plaintiff is entitled to judgment in the sum of $8,665 general damages plus $35 travelling expenses which gives a total of $8,700.