IN THE DISTRICT COURT OF QUEENSLAND

SOUTHPORTNo:  D511 of 1999

tibor joseph horvath

Plaintiff

AND

snezanna rajic

First Defendant

AND

anto rajic

Second Defendant

AND

nominal defendant

Third Defendant

REASONS FOR JUDGMENT – ALAN WILSON SC, DCJ

(Delivered the 10^th day of August 2001)

The plaintiff claims damages for personal injuries he suffered, as a passenger, in a motor vehicle accident which occurred at about 10 a.m. on 8 January 1998 on the Pacific Highway at Pimpama. Liability is admitted. The second defendant was driving the first defendant’s vehicle in a southerly direction on the highway when it struck the rear of the car in front of it which, it is alleged, in turn, hit the back of the car in which the plaintiff was a passenger.

The action was listed for trial with another matter.^[1]  I was told on the morning of trial the other action had settled, but not the terms of settlement. Much time at trial was taken up with a perceived need to disentangle the injuries (and their effects) suffered in the accident on 8 January 1998 from those caused by the accident to which that other action related - which occurred on 11 December 1997, only four weeks earlier, and also involved injuries to the plaintiff’s back.

Both Mr Howe for the plaintiff, and Mr Newton for the defendants agreed that the circumstances, and nature of each of the plaintiff’s accidents and injuries on those dates meant the case fell within the second category identified by Windeyer J in Faulkner v Keffalinos:^[2] i.e. the primary obligation on the plaintiff was to show, on the balance of probabilities, that he had suffered injury in the second accident through the defendant’s negligence; but, he was not obliged to go further and attempt to disentangle, and identify with complete precision, the relative contributions of each of the tortfeasors to his accumulated injury and loss.^[3]  Rather, as Mr Newton for the defendant put it, the defendant “…is obliged to disentangle if he wants to say that you are not going to compensate the package” - a colloquial summary of the majority judgment in Purkess v Crittenden,^[4] at 168:

“…Both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence…which if accepted would establish with some reasonable measure of precision what the pre-existing condition was or its future effects both as to their nature and their future development and progress were likely to be.”

In the first accident, the plaintiff’s primary injury was to his neck, and upper back; in the second, he complained of a low back injury. His work history had usually involved fairly heavy physical labour - as a meat worker and truck driver - but an unrelated health problem had caused him to leave his last job of that kind (as a meat worker) over a year before the first accident, and he had been attempting to set up in business, with his wife, as a photographer. He frankly acknowledged the effects of both accidents would inhibit any attempt to return to his former, heavy work but much of his evidence, and that of a number of medical specialists, addressed attempts to prove the second accident had the more deleterious effects, and the defendant’s efforts to prove the contrary.

The Plaintiff

The plaintiff was born on 24 May 1965, and is now 36. He married in 1986. The marriage, which subsists, has produced three children aged 12 years, 9 years, and 6.5 months. His wife gave evidence about the care she has provided her husband, and additional domestic burdens which have fallen upon her. He left school at age 16 and then worked as a slaughterman at a meat works for five years. Then, he moved to Melbourne, where he met his wife, and worked in the removal business, and in a factory. Later, the family returned to Brisbane where he worked for garbage removalists before returning to employment as a meat worker in around 1990. He left that job in July 1996, in unhappy circumstances, having been diagnosed with anxiety and depression as a consequence of workplace discrimination at the meat works^[5]. Thereafter, he worked for a short time as a surveyor’s assistant and, then, undertook a business management course while commencing a full-time photography business, in partnership with his wife. After the second accident he completed about seven photography jobs (at weddings, polo matches and the like) and then, effectively, gave up work altogether; and, has remained unemployed up to the present time, receiving social security benefits.

The plaintiff impressed me as an honest, candid witness. It was very much to his credit, I thought, that he did not personally attempt to blame all his ongoing disabilities on the second accident but, frankly, conceded the continuing effects of the first. While he struggled, from time to time, to differentiate the effects of the injuries from each, his difficulties appeared to be a manifestation of a genuine effort to answer as best, and as truthfully, as he could.^[6]

His evidence was that, in the second accident, he was jolted backwards and forwards and immediately felt pain in his low back.⁷ The defendant produced photographs, and video, and called the driver of the immediately following vehicle, Mr Page, to show the effects of the collision, in terms of vehicle damage, were very minor but, as I have said, the plaintiff impressed me as a truthful witness and one of the orthopaedic specialists called by the defendant, Dr Bruce McPhee, conceded that impact force is not a reliable measure of consequences, in terms of injuries suffered.^[8]  It was also suggested that the plaintiff had suffered some low back injury in the first accident. The plaintiff denied this categorically^[9] although his GP, Dr Maria Heves, in her report to the plaintiff’s solicitors 18 August 1998^[10] recorded “Mild cervical and lumbar muscle spasm and tenderness” after the first accident. The issue was taken up with a number of specialists: Dr Langley, orthopaedic surgeon, said a whiplash injury of the kind suffered in the first accident could cause muscle spasm down to the lumbar spine in the form of “referred pain”;^[11] Dr Bruce McPhee disagreed,^[12] but Dr Staples, neurologist, concurred with Dr Langley.^[13]  Insofar as it is possible to resolve this dispute between experts there is, at least, respectable opinion in support of the proposition that the plaintiff’s whiplash injury might have produced symptoms of the kind observed by Dr Heves; in any event accepting, as I do, that the plaintiff is a witness of truth, I find he either reported, or was observed to have, some minor low back symptoms after the first accident but they do not signify any real or meaningful injury, to the low back, in that accident. Rather, I am satisfied the principal injury in the first accident was to his neck, i.e. of the whiplash type.

When describing the symptoms consequent upon each accident he said, firstly, that his neck was only troublesome, now, a few times a year;^[14] that pain in and around his thoracic spine, which had appeared after the first accident, was present constantly, throughout each day;^[15] and, that his lower back and sciatic pain came and went throughout each day, aggravated by most forms of activity and, in particular, bending, lifting, carrying, and walking.^[16]  He underwent physiotherapy and other treatment for both injuries and has consulted a number of doctors, including specialists and therapists (whose reports are discussed later). He had taken various medications and still takes Feldene occasionally for pain but finds that he suffers stomach problems if he uses it constantly. He also takes codeine. It would now be impossible, or at least very difficult, he said, to return to work as a photographer because of the need to walk considerable distances and carry equipment; and when he attempted those things while undertaking “big weddings” or sports photography, or photographing horses he put himself at risk of a sciatic attack (something which had occurred during those attempts, after the accident).^[17]

During examination-in-chief the plaintiff said he would relate “50 per cent each way” to his neck and upper back problems on the one hand, and difficulties associated with his low back injury on the other.^[18]  In cross-examination, he struggled to answer questions from Mr Newton concerning the effects on his capacity for his former employment as a consequence of the injuries suffered in the first accident, regardless of the second^[19] and conceded it would “probably not” be possible for him to return to work as a meat worker, or truck driver, by reason of his thoracic pain, alone. Nevertheless, he resisted the proposition that the second accident had not contributed to his incapacity to work at all, reiterating what he had said earlier about the difficulties he had encountered with sciatic pain, when attempting to continue his photographic work. In re-examination he said that it was his low back pain which would cause him extreme pain with truck driving, and at the meat works where his work would involve a deal of stooping forward, and twisting; and, lifting.^[20]

Medical Evidence

Thirty-five reports from doctors, therapists and radiologists were tendered in a bundle (Exhibit 1), and five specialists and the psychologist, Mr Egan, were questioned by telephone. Dr McCombe, orthopaedic specialist, was regrettably unavailable for questioning.

A significant number of reports confirmed the plaintiff had, apparently, suffered injuries to the neck and upper back in the first accident, and to the low back in the second.^[21]  A CT X-ray of 16 January 1998 showed a small, central posterior disc protrusion at L5-S1, also seen (although slightly less prominently) in a follow-up CT of 17 July 1998, and in an MRI of the lumbar spine of 27 January 1999, which refers to it as a “minimal disc bulge”  (although some specialists doubted that interpretation).

Dr John Morris, orthopaedic surgeon, saw the plaintiff in about November 1998 on referral from Dr Heves, and diagnosed a musculoligamentous injury to the cervical spine, and probably the lumbar spine and said, “This will just take time to settle”. Dr Staples, neurologist, also saw the plaintiff at the behest of Dr Heves in about February 1999 and, similarly, diagnosed musculoligamentous type injuries and concluded there was no significant neurological damage.

Dr McCombe, orthopaedic surgeon, reported to the plaintiff’s solicitors on 4 October 1999. He described both injuries as “two whiplash-type injuries to his whole spine,” the subsequent history suggesting they were moderately severe. In the absence of early recovery there was unlikely to be further improvement and the plaintiff’s condition should be considered permanent and chronic. There was no evidence of any pre-existing degenerative condition that might account for the plaintiff’s symptoms, which were measured as causing a 15 per cent disability of the whole body. Dr McCombe does not attempt to differentiate between the effects of the two accidents.

Dr Yelland, neurosurgeon, reported to the defendant’s solicitors on 22 March 2000 and, similarly, diagnosed a musculoligamentous strain to the spine. In his opinion, the X-rays did not reveal any significant abnormalities or pre-existing degenerative changes. He diagnosed a whiplash injury “Which has become chronic”. The plaintiff has, as a consequence, been left with a five per cent impairment of total bodily function. Dr Yelland said:

“Both injuries would seem to have contributed to his residual complaints, but I cannot say whether one was more important than the other”.

Dr Bruce McPhee’s evidence has already been mentioned. He reported to the defendant’s solicitors on 4 April 2000, and 3 January 2001. The X-rays revealed, he thought, evidence of degeneration involving a lumbosacral disc which probably pre-dated the two accidents but had been aggravated by them in conjunction with musculoligamentary injuries to the spine. Clinical examination was marked, the specialist said, “by numerous abnormal signs consistent with functional overlay”. The overall disability was measured at five per cent. The plaintiff should not, Dr McPhee thought, be precluded from work of a sedentary nature and his former occupation of photographer “in some part remains within his capabilities”. In his second report, the specialist attempted to divide the effects of the injuries between the two accidents and said that, “artificially” it might be appropriate to say the disability could be measured at 2.5 per cent in the thoracic spine, and 2.5 per cent in the lumbar, “the latter being predominantly due to the second injury”.

Dr Langley prepared a report for the plaintiff’s solicitors after examination on 17 August 2000. He ascribed an eight per cent disability to the whole body as a consequence of the first accident, and an 18 per cent impairment, to the lower back, as a result of the second. Dr Landy was of the view that while the CT scan 16 January 1998 suggested a small disc protrusion, the MRI of 27 January 1999 shows no evidence of that protrusion. The plaintiff’s behaviour was inconsistent with genuine clinical signs of injury and, in this specialist’s opinion, he “Appears to have adopted the sick role”. No permanent impairment could be attributed to the second injury. Several research papers mentioned by this specialist show, he says, that a diagnosis of “chronic whiplash syndrome” is unlikely to be clinically valid and “prolongation of symptoms, in the absence of any evidence of this prolapse, are not due to any organic symptomology”.

Dr Landy said in his report, and Dr Staples during re-examination, that research in other countries^[22] suggests that, in the absence of a scheme for compensation for personal injuries like whiplash, symptoms resolve promptly. I was not provided with the articles referred to by either specialist and these opinions, albeit consistent with their clinical findings, were outweighed by the conclusions of Drs McCombe, Yelland, McPhee and Langley, all of whom accepted there was a permanent disability, measurable in percentage terms and described as “permanent and chronic” (Dr McCombe), “chronic” (Dr Yelland), “stable and stationary” (Dr McPhee) and a “permanent impairment” (Dr Langley). Although Dr McPhee was of the view the MRI did not show a disc protrusion, he accepted it as “reasonable” that there was a causal relationship between the second accident and an “aggravation of the disc”.^[23] 

Although some medical evidence suggested the plaintiff’s low back symptoms were a consequence of an aggravation of some degenerative changes in that region, opinion was not unanimous. Dr McCombe interpreted the X-rays, CT scans and the MRI as indicating an absence of degeneration;^[24] Dr McPhee referred to an “aggravation”;^[25] Dr Landy said the MRI shows “no significant pathology”;^[26] Dr Yelland thought all the radiology was “within normal limits”;^[27] and, Dr Langley believed the films showed “minimal degenerative changes”.^[28]  In the absence, however, of any evidence in connection with the nature and extent of any pre-existing degeneration (if it existed) and its potential effects upon the plaintiff, had the second accident not occurred, there is no need for any finding in respect of this issue and it will not tell against the plaintiff in the measure of his damages.^[29]

Damages

I accept the plaintiff, and his wife, as witnesses of credit. Their evidence and that of Drs McCombe, Yelland, McPhee and Langley establish that the plaintiff suffered a low back injury in the accident of 8 January 1998, which has caused him pain, and some loss of mobility, and continues to do so. Attempts to measure that disability in percentage terms leads to obvious disagreement amongst the specialists and is, in a sense, a sterile exercise: the plaintiff is entitled to damages for the pain and suffering he, subjectively, experiences.^[30]  Prior to this accident he was reasonably fit and active, save for the effects of the psychological problems he had suffered in 1996, and of the whiplash injury four weeks earlier. He had been able to perform heavy manual work without any apparent low back pain. He suffers, I find, regular pain and discomfort in his low back, and occasional sciatic pain with a variety of activities. At best, the pain is present, but apparently manageable on a “good” day and at worst - e.g. after excessive bending or stooping, or attempting to lift objects or, occasionally, after driving or walking - it’s “…like someone sticking an injection into my right buttock”, and the plaintiff is obliged to rest, or take codeine or Feldene.^[31]

For general damages for pain, suffering and loss of amenity the plaintiff’s counsel argued for $35,000, and the defendant’s counsel for $12,500. I was provided with a number of unreported decisions of this Court, of which the most apposite appeared to be that of his Honour Judge McGill QC in McKenzie v Austral Pacific Group Limited (District Court Brisbane, 976/97, 28 August 1998) in which the plaintiff, a male aged 32, had suffered an injury to his L5-S1 disc in a fall which had been treated conservatively, but which had left him with a disability measured by orthopaedic specialists at between five and 10 per cent of the whole body. Doing the best I can, here, with the extravagant range of percentage figures provided by the various specialists, I consider a figure of $30,000 is appropriate. The plaintiff is now aged 36; the subject accident occurred about 3.5 years ago; in light of those facts, I think interest on $12,500 at two per cent for 3.5 years is appropriate.

Special damages were agreed at $1,874; and, counsel also agreed that interest should be awarded on $653.50 of that sum, at five per cent for 3.5 years: $114.00.

The heads of past and future economic loss, not surprisingly, attracted widely disparate submissions from the parties. Mr Newton argued that the effects of the first accident had destroyed the plaintiff’s capacity for heavy labouring type jobs, including truck driving and meat working in any event and, at worst, the second accident had only added, marginally, to difficulties the plaintiff might encounter in his photography business, or some other sedentary or semi-sedentary employment. The photography business had made a small profit of about $4,000 in the 1995/96 year and $3,000 in the following year, suggesting it would never be viable, and the plaintiff would have continued to support himself from social security benefits or, it was argued, ultimately have been forced to return to work as a meat worker or truck driver - a capacity destroyed by the first accident. Figures of $3,500 for the past, and $12,000 (including superannuation losses) for the future, were advanced.

Mr Howe submitted that, while the plaintiff had in cross-examination made some concessions suggesting his upper back injuries would have prohibited heavier work,^[32] a careful analysis of his answers in re-examination^[33] showed that it was his low back injuries which, by reference to specific tasks which would be asked of him as a meat worker or truck driver, would prohibit jobs of that kind.

Certainly, the weight of the medical evidence establishes those vocations are, most likely, beyond the plaintiff’s capacity now.^[34]  The plaintiff himself gave tolerably clear evidence, I thought, about this question: he said his thoracic pain was daily, and constant^[35]; and, most significantly, (albeit in the context of domestic assistance provided by his wife) himself ascribed his disability to respectively, his neck and upper back problems as “50 per cent each way”.^[36]  I was not, ultimately, persuaded that it is the low back injury alone which prevents the plaintiff returning to heavy work: when pressed, in re-examination by his counsel, he said there was a lot of lifting work at the meat works which would affect his lower back “immediately”, and that part of his body would also be “extremely painful” if he attempted truck driving work but the first statement carries the inference that his tasks at the meat works would ultimately cause upper back pain and he confirmed that, in the same passage of evidence.^[37]  The effect of his evidence is to lead, inevitably I think, to a finding that at the time of the second accident, the plaintiff’s capacity to return to heavy labouring work at the meat works, or as a truck driver, had been destroyed by the effects of the first.^[38]

The plaintiff’s photography business was in its infancy when he was injured. He said that it was “doing really well” before the first accident^[39] but that is not borne out by the tax returns and assessment notices^[40] and, in its early stages, it had been interrupted by his work as a surveyor’s assistant between 1 July 1997 and the date of the second accident. Although I found the plaintiff to be an honest witness it is clear, in light of the reported income of the photography business, that it was simply too early for him to say whether or not it would succeed or he was being, understandably, hopeful about it.

An added complication is that, as well as dividing his symptoms about equally between the two injuries he also conceded that the problems he had carrying out the photography work - at, in particular, long weddings and polo matches - occurred both in the thoracic, and lumbar regions of the back.^[41]

Mr Howe advanced a “global” sum referable to an ongoing loss of $200-$400 per week, discounted on the five per cent table, and then propounded figures of $50,000 for past economic loss, and $80,000 for the future.

Ultimately, I am persuaded that, firstly (to reiterate) the effect of the first accident was, on the balance of probabilities, to destroy Mr Horvath’s ability to return to his former, heavy employment, e.g. as a meat worker or truck driver; secondly, that after the first accident there remained, nevertheless, the possibility that he might have been able to continue in his photography business, albeit with some difficulty but, having regard to his complaints about the pain and symptoms he suffered after the first accident and how they affected him during his subsequent work as a photographer, the chance of him continuing was, relatively, remote; thirdly, that the effect of the second accident was to remove that chance altogether - i.e. after the second accident any opportunity he had to continue working as a photographer was entirely destroyed; fourthly, that the combined effect of both accidents is, then, to destroy his capacity to work in any vocation for which his limited education, and work experience would otherwise fit him; and, fifthly, that his opportunities for work in the future are, now, severely inhibited, if not extinguished.

It follows that he is entitled to damages, then, measured against the limited prospect he might have been able to continue in the photography business after the first accident; and, for the additional inhibition placed upon his capacity for sedentary or semi-sedentary work which the second accident has created. He presented as a pleasant, thoughtful and not unintelligent man. Since the photography business wound down he has undertaken some limited work with his church and is otherwise occupied, of course, with domestic activities with his family. No evidence was advanced about alternate vocational training and it is difficult to see how, in his mid-thirties, he can readily find work.

I was not provided with particulars of comparative earnings for professional photographers, so the attempt to value these lost opportunities cannot be performed by reference to figures for average weekly, or annual earnings. I am persuaded the plaintiff ought to be compensated for his lost chances but have to perform that exercise in, effectively, a vacuum. Taking into account the impression I formed of the plaintiff; his good work history; initial earnings from the photography business which, while small, suggested it had some prospect for growth; and, weighing and attempting to balance the complex circumstances which arise here, I find that a figure of $20,000 is appropriate for losses suffered between the date of the second accident, and today. In light of the plaintiff’s past, and ongoing receipt of social security benefits (of which particulars were not provided) and the concession from the plaintiff’s counsel that, having regard to them, interest would not be claimed, I make no allowance for interest on that head.

As to the future, I am obliged, by reference to the many factors which have been traversed, to attempt an assessment of the degree of probability that, but for the second accident, the plaintiff might have been able to carry on with his photography business or some other lighter work within his capacities, notwithstanding the thoracic (and neck) pain which arose after the first. I am persuaded that chance was not so low as to be regarded as speculative but also, clearly, far less than practically certain. Again, the plaintiff’s good work history, and his presentation in the witness box, persuade me it is proper to make an award under this head and that the damages ought not be negligible - weighed against, again of course, the relatively remote nature of the lost chances. Although, as I have said, the plaintiff is not a young man he had exhibited, in the past, a propensity for hard work and he said that he intended working to a retiring age of about 65. Taking into account that the value of the lost opportunity must cover a period, then, of up to 30 years, I find a figure of $50,000 is appropriate.

No claim was advanced, by the plaintiff’s counsel, for lost superannuation benefits but, for the sake of completeness, I find the figure of $50,000 contains, within itself, adequate compensation for both direct future financial loss, and any associated loss of benefits of that kind.

Both the plaintiff and his wife gave evidence that he needed some domestic assistance as a consequence of his low back injury although, again, attempts to disentangle needs which arose as a consequence of the first, or second accident created uncertainty. Mr Newton accepted that the second accident had created some additional problems and, without any special particularity, advanced figures of $2,500 for past care, and $5,000 for the future. Mr Howe contended for one hour per day at the rate the parties had agreed: $15 per hour. The evidence of both the plaintiff and his wife shows, I find, that her intermittent assistance to him when he is at his worst, and general domestic assistance including gardening, justifies a claim for one hour per day; but, it is appropriate to discount that claim by reference to care which is necessary, as a consequence of the first accident: the plaintiff himself made this concession.^[42]  An allowance of $15 per hour per day, for 3.5 years discounted by 50 per cent is $9,500, and I think that is appropriate. Both parties agreed this sum should attract interest for 3.5 years, and Mr Newton conceded the proper rate was five per cent, which I accept: i.e. interest will be awarded in the sum of $1,662.

For the future, Mr Howe advanced a figure of $10,000 - again on a “global” basis. Accepting, as I do, a need for about one hour’s care per day attributable, in equal proportions, to the effects of the first and second accidents at a rate of $15 per hour, the figure over two or three decades on the discount tables is much higher. Although counsel’s submissions were not fulsome I accept that it is appropriate to undertake some discounting for contingencies including, in particular, the possibility that the effects of the first accident alone might have generated this need. Having regard, for example, to the fact that $15 per hour, per day, on the discount tables for a period of 20 years leads to a calculation of almost $35,000 I think, however, that a discounting to $10,000 is extreme, and a more appropriate figure is $15,000.

There were also claims, advanced by the plaintiff, for future chemist, medical and physiotherapy expenses. The defence conceded a figure of about $1,000 would be appropriate, and the plaintiff argued for $7,000. Dr Langley suggested a rehabilitation programme at the Wesley Hospital of about two weeks’ duration, costing $3,000. None of the other specialists were asked whether or not they thought that would be beneficial and the plaintiff said that, with sufficient funds, he would like to undergo it and also some further physiotherapy, and manipulation. In light of his limited ongoing expense and the relief he said the physiotherapy/manipulation had provided him in the past, I consider an award of $5,000 for all these future expenses is appropriate.

Summary of Damages

Subject to correction for mathematical error I find, then, that the defendants must pay the plaintiff $134,025.00 for his damages.

I will hear from the parties concerning costs.