New South Wales District Court CITATION: Sekuloski v Deku & Anor [2007] NSWDC 122 HEARING DATE(S): 17/05/2007 - 18/05/2007 JUDGMENT DATE: 13 June 2007 JURISDICTION: Civil JUDGMENT OF: Goldring DCJ DECISION: Verdict for the plaintiff in the sum of $124,615 CATCHWORDS: Damages - apportionment - no principle of law Stojan Sekuloski (Plaintiff) PARTIES: Noa Deku (First Defendant) J C Decaux Australia Pty Limited (Second Defendant) FILE NUMBER(S): 1858 of 2006 COUNSEL: Mr A .J. Lidden SC, Ms E.E. Welsh (Plaintiff) Mr J. Guihot (Defendants) SOLICITORS: Bryden's Law Office LP (Plaintiff) Dibbs Abbott Stillman (Defendants) JUDGMENT Issues 1 HIS HONOUR: In this case the issue is the extent to which, if any, a motor vehicle accident, in which the plaintiff was involved on 2 October 2002, contributed to his continuing injuries. 2 The defendant has never filed a notice of defence. It has not conceded breach of duty. It disputes that the accident has contributed more than marginally to the plaintiff's injuries. The Accident 3 On 2 October 2002, while the plaintiff was driving to work, the front right-hand corner of the defendant's car struck the rear quarter panel of the plaintiff's car. The defendant's car was travelling in the opposite direction to the plaintiff, and crossed the centre line of Kingsgrove Road before the collision occurred. Photographs in evidence show that the defendant's car was not damaged at all, except for a few scratches. There was a quite noticeable depression, possibly between 5 and 10 centimetres deep, on the rear quarter panel of the plaintiff's vehicle. The plaintiff says that he was thrown sideways quite hard, causing him to twist his neck. He immediately felt increased pain. The collision was much more than a "glancing blow", as one of the doctors put it, and as counsel for the defendant used the expression in his cross examination. Breach of duty of care 4 The fact that the defendant was driving on the wrong side of the road is sufficient to establish a breach of duty of care. The defendant has not pleaded, so contributory negligence is not an issue. Causation 5 I am satisfied that, on the balance of probabilities, the defendant's breach of duty caused a severe impact on the plaintiff's car, causing the plaintiff's body to be twisted violently to one side. As a result of this impact, he suffered, if not a fresh injury to the neck, at least a severe exacerbation of a pre-existing condition. He also suffered an exacerbation, to some extent, of a pre-existing back condition. The plaintiff's previous injuries 6 The plaintiff had been involved in a workplace incident in February 2002. At that time he was working in his normal work as a fettler on the railway, working with a group of other members of his gang, carrying 2 pieces of steel rail joined together in what was referred to as a "glue joint". The glue joint was about 10 metres long and was quite heavy. One of the other workers fell and the plaintiff was left bearing most of the weight of the glue joint. 7 The plaintiff immediately felt severe pain in his lower back. He did not stop working. However, a few days later he saw his local doctor and reported the back pain. 8 The plaintiff also reported that early in December 2001, he had slipped on ballast while working on the railway line and had sprained his ankle quite badly. He had received medical treatment for this injury. 9 Some weeks after the "glue joint" incident, he returned to work, but found that he could not do the work of a fettler. That work is heavy. It involves lifting heavy objects, such as rails and sleepers, doing pick and shovel work, and otherwise heavy manual work. 10 The plaintiff was placed on light duties as a cleaner for some weeks. He could do the sweeping required in this job. However, he was unable to lift heavy bins, which was part of the work. He was then given other light duties, in an office either at Homebush or Flemington. This work involved answering the phone, making phone calls and working with forms. Treatment after the earlier injuries 11 The plaintiff says that, although he had some time off work, he kept working, although his pain continued to be bad. He saw his local doctor, Dr Chowdhury, on a regular basis. He had analgesic medication. When his pain did not resolve, Dr Chowdhury referred him to a spinal specialist, Dr Diwan. Dr Diwan first saw him in the May following the work accident. Dr Chowdhury also gave him acupuncture, inferential treatment, and referred him for physiotherapy and hydrotherapy. The plaintiff said that he responded well to physiotherapy and hydrotherapy, which helped, and he continued this until the workers' compensation insurer refused to pay for further such treatment. 12 It became obvious that the plaintiff would not be able to return to work as a fettler while his injuries persisted. This caused him considerable anxiety, as he did not know what his future would be. The Plaintiff and his current condition 13 At the time of the work accident the plaintiff was 26 years old. He had left school in year 11 and was about to start an apprenticeship as a carpenter, when the employer went out of business. He returned to school, but left before the end of year 11. He then had a number of casual jobs, including some work in Michel's Patisserie, before he took some courses at Centrelink and obtained work as a cleaner. He then worked for periods as a toolmaker, and as a galvaniser as well as other jobs. The Michel's Patisserie employment is relevant because he told some doctors that in the course of this work he did suffer an injury to his back, from which he recovered completely. He grew up in Victoria, where his parents lived, but came to Sydney with his sister, he thinks early in 2000, and worked as a labourer for an employment agency until he obtained a permanent position as a fettler with the State Rail Infrastructure Corporation on 16 December 2000. 14 This work paid extremely well. His net wage was $674 per week. He enjoyed the work. 15 After the work accident in February he began to suffer from anxiety and depression. He was also subject to alleged harassment and bullying in the place where he was working on light duties. As a result of this, Dr Chowdhury referred him to a psychiatrist, Dr Rewais, who prescribed antidepressant medication. 16 Dr Chowdhury had prescribed Panadeine Forte, which the plaintiff said helped with pain relief. 17 The plaintiff's case is that before the motor vehicle accident, although his lower back pain was quite severe, his neck pain was not sufficiently severe for Dr Chowdhury to make any notes of it. Dr Chowdhury saw the neck pain as a new symptom, only developing after the motor vehicle accident. The plaintiff also says that his lower back pain became considerably worse after the motor vehicle accident. 18 The defendant's case is that all that occurred as a result of the motor vehicle accident was a temporary aggravation of back and neck pain caused in the work injury in February. The defendant's case is, further, that the plaintiff has not suffered any additional expense for out of pocket expenses as a result of the injuries received in the motor vehicle accident. It says that there may be a minor contribution to both loss of past earnings and future earning capacity, but no more than this. 19 Part of the defendant's case is that after the motor accident, the plaintiff did not see his doctor for some days. Indeed, the symptoms only became really disabling when, on 25 October, the plaintiff was working on light duties and reached for the telephone when, he says, his legs collapsed and he was in such acute pain that he was taken by ambulance to Concord Hospital. He was not admitted to the hospital, but he was given morphine and other strong analgesics before being sent home. Dr Fang, at Concord Hospital gave him a certificate that he was unfit for work for 3 days, but Dr Chowdhury gave him another certificate and he was in fact off work for about 2 weeks. He says he did not return to work after that, but the facts seem to suggest that he did. The defendant argues that there is no evidence that links the plaintiff's collapse on 25 October in any way to the motor vehicle accident. 20 The plaintiff is a solidly built man in who was born in Australia. His parents came from Macedonia. He says that he has had difficulty at school with English, and he is certainly not fluent in English. He seemed to have difficulty understanding a number of questions put to him and in remembering events that happened 5 years ago. A vocational assessment report prepared for his employers, but tendered in evidence in this case, confirms my impression that his literacy skills are not highly developed. He appears fairly slow to respond to questions and he does not have a good memory. Mr Lidden, his senior counsel, suggested that this would lead me to regard him as unreliable. Mr Lidden did not suggest that he was dishonest, and indeed I found him scrupulously honest, to the point where he gave answers to questions in cross-examination that were against his interest. 21 The defendant, however, does argue that the plaintiff is an unreliable witness and that his evidence relating to symptoms and times is insufficient to discharge the burden of proof that he bears in relation to the causation of his injuries. 22 I am satisfied that the plaintiff's memory of many events is unclear. I cannot accept all his evidence of what he remembers about his injuries and pain as evidence of those facts. It is necessary to place a great deal more reliance on the contemporary medical records. That evidence in fact provides substantial support for the plaintiff's case. 23 The injuries, which the plaintiff received in the "glue joint" incident, were quite severe. The primary site of his pain at that stage was the lower back. The medical evidence does suggest that he made some complaint of pain in his neck and, possibly, shoulders before the motor vehicle accident. There is no doubt that he suffered quite severe injury and pain in his lower back. The injury was sufficiently severe to cause him some concern that he would ever be able to work again as a fettler. There is, I find, no evidence that, before the motor vehicle accident, the neck pain was as severe as it now is. 24 In his evidence, the plaintiff maintains that after the "glue joint" incident, although he was injured, he was making some progress. The defendant says that the documentary evidence shows that this was not case. In particular, the defendant relies on two documents which suggest that, only a few days before the motor vehicle accident, the plaintiff saw the spinal specialist, Dr Divan, and reported that there was no improvement in his condition -- rather, that his condition was not changing. There is certainly a report from Dr Divan to Dr Chaudhury, dated 1 October 2002, to this effect. This is not entirely consistent with the plaintiff's evidence, but it does not appear totally inconsistent with it. Dr Divan's concern was with lower back pain, the condition for which the plaintiff had been referred to him. It would be consistent with the evidence, taken as a whole, that the plaintiff's lower back had not improved significantly between the "glue joint" incident and the motor vehicle accident. The plaintiff's evidence was that he did think that his condition had improved somewhat. His memory is not good. 25 The defendant relies also on another document produced from the subpoenaed records of Dr Divan. This document is a questionnaire, and the plaintiff admitted that he completed this document. He cannot remember when he completed it. The defendant argues that I should infer that this was completed when the plaintiff visited Dr Divan in late September, which is the visit referred to in the report that I just mentioned. It is clear from the evidence that the plaintiff continued to see Dr Divan for many months both before and after the motor vehicle accident, and it is quite possible that the form was completed after any one of these visits. It purports to be a document completed by the patient after a "follow-up" visit. It could have been completed on any such visit. I am not prepared to make the inference that it was completed on a visit before the motor vehicle accident. As I understand the defendant's case, this document is to be taken as an admission by the plaintiff that his back and neck pain remained unchanged from February 2002. I can only treat it in this way if I make the inference, and I do not do so. 26 The defendant also argues that the collapse by the plaintiff at work on 25 October cannot be related causally to any of his symptoms. The evidence, however, leads me to infer the opposite. It is open to the court to draw an inference that the plaintiff's acute symptoms on that day were the result of his previous injuries, that is, the injuries suffered in the "glue joint" incident in February, as exacerbated (if I should so find) by the motor vehicle accident. I make that inference. The medical evidence 27 The medical evidence consists mostly of documents produced on subpoena either by the treating doctors, Dr Chaudhury and Dr Divan, or by the workers compensation insurer. The plaintiff's workers compensation claim was resolved by agreement shortly after the plaintiff's services were terminated by his employer in September 2003. This claim related primarily to the "glue joint" incident. It is not in dispute, therefore, that from February 2002 until the resolution of the claim, the plaintiff was paid some workers compensation, and the workers compensation insurer met medical expenses. 28 As I have mentioned, neither of the treating medical practitioners, Dr Choudhury and Dr Divan, placed a great deal of emphasis on the plaintiff's complaint of injuries to his neck (and shoulder) before the motor vehicle accident in October 2002. When Dr Divan saw him shortly before the motor vehicle accident, he ordered further radiological imaging, including CT scans of the lumbar spine. There was no x-ray or CT scan of the cervical spine until after the motor vehicle accident. 29 The plaintiff had imaging of his lumbar and sacral spine before that time. This reveals some organic spinal damage at the L4/5 joint. Although some of the medical opinion attributes this to a pre-existing condition, the majority seems to conclude that if this was not the result of the "glue joint" incident, that incident had exacerbated the injury to the point it became symptomatic. 30 The fact that the doctors did not consider it necessary to obtain x-rays or scans of the cervical spine until after the motor vehicle accident leads me to the conclusion that, although the plaintiff previously complained of pain in his neck and shoulders, there was insufficient evidence to satisfy either the general practitioner or the treating orthopaedic spinal specialist that the symptoms in the cervical spine were sufficiently symptomatic as to present a real problem until after the motor vehicle accident, and that the symptomatic nature of the neck was therefore a result of the motor vehicle accident, either as a new injury, or as an exacerbation of a previously existing injury, as a direct consequence of that accident. 31 Dr Chaudhury's reference of the plaintiff to Dr Divan appears to have related primarily to the complaint of pain in the lower back. One medico legal expert, Dr Hall, appears to have formed the view in his report dated 9 April 2002, some time before October 2002, that the plaintiff's prognosis for his lower back injury was good. This is the only opinion to that effect. The plaintiff's memory is that his back condition was improving, but this does not seem consistent with Dr Divan's report to Dr Chaudhury of 1 October 2002. 32 It also seems that the general practitioner, Dr Chowdhury, considered that, after the "glue joint" incident in February, the plaintiff's mental condition was sufficiently serious to warrant a referral to the psychiatrist, Dr Rewais, who treated the psychiatric condition and was able to deal with it to the extent that the plaintiff's condition, in terms of depression and anxiety, appeared to have resolved by the time of the motor vehicle accident. He does not appear to have been treated for a mental illness since that time, and the only subsequent psychiatric evidence, from Dr Robertson, suggests that his mental condition has stabilised. 33 He certainly has suffered pain as a result of his injuries, and anxiety and concern because his physical condition means that at no time since the "glue joint" incident in February has he ever been sufficiently fit to be able to resume the highly paid work as a fettler. 34 The workers compensation insurer appears to have treated the plaintiff somewhat harshly. It refused to provide certain treatment that had been recommended by medical experts and ultimately denied liability, before the claim was settled. 35 The radiological evidence suggests that the injury to the cervical spine/neck was not organic, but was in the nature of a serious soft tissue injury, which has persisted. Only one specialist, Dr Ellis, finds evidence of minor damage to the cervical spine. His report was prepared after the motor vehicle accident. 36 The plaintiff suffers from a type of "pain syndrome" and anxiety resulting from his injuries. This condition has now stabilised. 37 At one stage the plaintiff appeared to suffer an adverse reaction to the analgesics that had been prescribed after February 2000. He was referred to a gastroenterologist, Dr Garvey, and his treatment was changed. As a result he is unable to use some strong analgesics. However, the gastric condition appears to have stabilized. 38 My conclusion is that a) The motor vehicle accident exacerbated the plaintiff's lower back condition to a small but significant extent. This condition is demonstrated by radiological evidence and is permanent. b) The plaintiff's neck became symptomatic to a significant extent only after the motor vehicle accident and as a result of that accident. 39 The injuries resulting from the "glue joint" incident form the bulk of the plaintiff's permanent and disabling injuries. 40 The injuries resulting from the motor vehicle accident account for 27.5% of the plaintiff's injuries. Damages 41 The plaintiff does not claim permanent and total disability. However, with one possible exception, the medical evidence is that he will never again be fit to work at heavy tasks, such as a fettler has to do, and because of his educational and other limitations, he may not be suitable for a wide range of other duties, although he says he was able to do the light duties assigned to him by his employer immediately before the motor vehicle accident. 42 I accept that his net weekly wage at the time of the motor vehicle accident as a fettler was $674. His earnings and future earning capacity have been reduced by 50%. 43 Exhibit J is a bundle of reports and other documents tendered by the plaintiff to demonstrate the time he has been off work. This shows that he was unfit for work for the following periods: 25/10/02-16/2/03, 28/2/03-3/3/03, 7/3/03-21/3/03, 15/6/03-29/6/03, 27/6/03-30/9/03, 30/9/03 to date (less 5 weeks employment at Sundown Parklea Hotel, Shepparton, Victoria). The total is 3.5 years plus 35.5 weeks and the lost past earnings @ $674 pr week amount to $146 595. Superannuation at 9% of this figure is $13 194. 44 The plaintiff claims damages for loss of future earning capacity. His remaining working life, to age 65 is 34 years. Given a loss of 50% of earning capacity, damages are to be calculated by multiplying $337 by the 5% multiplier for this period (865.9) and deducting 15% for ordinary vicissitudes of life. This produces a figure of $248 037. To this must be added 9% for loss of future superannuation benefits ($22 323). 45 Past out of pocket expenses are agreed at $2996. 46 I find that the plaintiff will require future treatment, medication, counselling, physiotherapy and hydrotherapy, and a pain management program. I am prepared to allow a lump sum of $20 000 for this. 47 Total economic loss is therefore $453 145. Twenty-seven and one half percent of this is $124 615. and there will be a verdict for the plaintiff in that amount. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.