Andonaros v Titcume [2005] ACTSC 38

3. The police attended and he was able to contact his parents who arrived and collected him. He was taken to hospital where he was treated but not admitted. He saw his general practitioner, Dr Sukumar of Queanbeyan, on 20 March, four days after the accident.

4. By way of background, the plaintiff had left school at the end of 1996 and commenced an apprenticeship as a carpenter and joiner in January 1997 with Stegbar Pty Ltd at Queanbeyan. He was into the last year of that apprenticeship at the time of the accident. He completed the apprenticeship in January 2001.

5. Immediately after the accident he took sick leave. He returned to work after two or three weeks on light duties and reduced hours. After a time his hours were extended to normal hours, but he remained in a supervising role on light duties although still working on the factory floor at Stegbar.

6. In July 2002 he was moved into a different role with the company, away from the factory floor and into a front office customer contact position, which he did not like and felt he was unsuited to. He left the employment of Stegbar at the end of January 2003 and effectively went into business with Chris Satlabanis, who had been a more senior fellow employee at Stegbar and had left some time earlier.

7. Together they operated, in what was described as a joint venture, their two individual businesses as carpenters and joiners and shopfitters, typically taking on work replacing doors and windows in houses. In the early years of their venture much of their work came via Stegbar. That has not continued but this appears not to have affected the viability of the venture.

8. The plaintiff saw, as I earlier said, Dr Sukumar, his family general practitioner, four days after the accident, and gave Dr Sukumar a history of the accident and his symptoms. Dr Sukumar conducted a physical examination, finding focal tenderness, stiffness of the neck, stiffness of the lumbar spine and reduced range of movement of both those levels, but without any neurological deficits in the limbs.

9. Dr Sukumar referred the plaintiff for physiotherapy, prescribed analgesics and gave the plaintiff a certificate for time off work. The plaintiff continued to see Dr Sukumar over the next two years and more, seeing him again about four days after the first consultation, then a month later, then another two months later and so on during the year 2000, continuing to see him less frequently during 2001 and 2002, and even less so during 2003.

10. Dr Sukumar referred the plaintiff for a CT scan of the lumbar spine in July 2000, and this showed small central disc protrusions at the L4/5 level and a minimal disc bulge at the L5/S1 level without any neural compromise.

11. Dr Sukumar diagnosed the plaintiff as having suffered an acute cervical whiplash injury to the soft tissues of the neck. He was also of the opinion that the disc protrusions in the lumbar spine had been caused by the accident. Initially Dr Sukumar expected the plaintiff to make a complete recovery over a period of six to twelve months, but this proved over-optimistic.

12. The plaintiff had been, prior to the accident, a keen competition target shooter, using a shotgun at clay targets, and as a junior had represented the Australian Capital Territory and later New South Wales in this sport. His evidence is that he has attempted it since the accident but has found that the recoil of the shotgun has affected his right shoulder in such a way as to preclude him from further involvement in it, something which causes him great concern because of his skill at the sport and his hopes that he might ultimately have represented Australia at international level.

13. Dr Sukumar by mid-2001 had reviewed his projection to an expectation of recovery within two years. He noted that the plaintiff had ceased lifting excessively heavy objects in the course of his work. In Dr Sukumar's opinion at that time, the plaintiff required physiotherapy, remedial massage therapy and a program of light gymnasium work.

14. In May 2002, the plaintiff was referred by the defendant's insurer to Dr David Elder, a consultant occupational physician, who carried out a physical examination and took a history from the plaintiff. At that time the plaintiff continued to complain of low back pain and right shoulder pain aggravated after prolonged sitting, and requiring the plaintiff to stop in the course of long drives to rest, for example three times between Canberra and Sydney.

15. The plaintiff told Dr Elder that at that time he was building his own home and had assembled the framework for it, and that he assisted his parents on their hobby farm outside Queanbeyan, including providing some assistance in their vineyard and some help with household chores in the home. He told Dr Elder that he was not taking any analgesics or having other treatment, though he was seeing Dr Sukumar every month or two. Dr Elder noted that the plaintiff was playing some squash at that time and walking for exercise. The doctor found some inconsistencies on physical examination in relation to straight leg raising and muscle power in flexion and extension of the toes, and mentioned a degree of evasiveness in the history and information provided by the plaintiff.

16. The plaintiff produced a thermo-skin back brace, which he told Dr Elder he had been advised to wear by his general practitioner. He said that he had been wearing it constantly for two years without a break. Dr Elder said that that was not the usual practice, and that the back brace did not look as though it had been worn for that period. It looked quite new, much less than two years old.

17. Nevertheless Dr Elder thought that the plaintiff's complaints of pain in the low back and the right shoulder were genuine and had been caused by the motor accident. He thought that the plaintiff's prognosis was quite optimistic, though he should lose some weight and continue with a gymnasium exercise program designed by a physiotherapist. He expected further improvement over the following year. Dr Elder appears to have been the first specialist who had seen the plaintiff after the accident. No specialist had at that stage seen him in a treating capacity.

18. In early September 2002, the plaintiff's solicitors wrote to him saying that in their view, having regard to the state of the medical evidence, it was important to obtain further evidence from a specialist, and that if the plaintiff agreed with that recommendation, he should ask Dr Sukumar to refer him to one of two suggested specialists. It appears that the plaintiff accepted that advice, because shortly afterwards he saw Dr Sukumar again and Dr Sukumar referred him to Dr Speldewinde, a Canberra-based consultant in rehabilitation medicine, pain medicine and musculo-skeletal medicine.

19. Dr Speldewinde saw the plaintiff on 15 October 2002 on referral from Dr Sukumar. He did not limit his role to the provision of a report for medico-legal purposes. He took the view that the plaintiff required further treatment in the form of physiotherapy, with a view to developing a general strengthening of the spine through a fitness program, initially supervised, and moving in due course on to self-directed exercises at a gym. One of Dr Speldewinde's aims, he stated in a report at about that time, was to get the plaintiff back to his competitive shooting, although it appears that that aim has thus far been unsuccessful.

20. Under Dr Speldewinde's supervision the plaintiff underwent physiotherapy with a physiotherapist attached to Dr Speldewinde's practice, and Dr Speldewinde continued to see the plaintiff on occasions. He reported in November last year that on physical examination there was still some restriction of neck movement, with some pain in the right lateral angle of the neck, and that there was some restriction of shoulder movement and tenderness over the right lower cervical para-vertebral structures including the C5-6 zigapophysial joint extending into the shoulder girdle musculature. Dr Speldewinde also found some tenderness at the lumbo-sacral junction though no restriction of movement or pain in the lumbar spine.

21. Dr Speldewinde then suggested that future treatment options which should be considered, given the apparent lack of improvement in the neck and shoulder included assessment for participation in an intensive cervical strengthening program over a three to four month period, and an assessment by a pain management psychologist to elucidate the nature of his pain-coping strategies and pain beliefs, and to implement appropriate pain management strategies. He noted that the cost of the neck strengthening program would be about $2500 and of the psychological assessment about $1000. If as a result of that assessment the plaintiff was considered an appropriate candidate for a pain management program, that would be available at a cost of about $3000. Dr Speldewinde went on to say that the plaintiff would also benefit by optimising his lumbar spinal fitness including flexibility and strengthening exercises, and that such a program would cost about $1000 every six-month period.

22. Dr Speldewinde also accepted that it would be consistent with his findings on examination and diagnosis that the plaintiff might require a day off work each fortnight and occasionally as much as two or three days off in a fortnight, where his pain flared up or he was placed in a difficult work situation, and that it was reasonable to accept that might occur every two or three months.

23. In November 2003, the plaintiff was referred by his solicitors to Dr Brooder a neurologist based in Albury, who saw him for the purposes of a report for this case. Dr Brooder expressed the opinion that the continuing intermittent lower back pain symptoms of which the plaintiff complained were consistent with the changes which were seen on the CT scan at the L4-5 and L5-S1 levels, and also that his continuing intermittent neck and shoulder symptoms were consistent with a musculo-ligamentous strain injury. He thought it more probable than not that both of those injuries had happened at the time of the motor vehicle accident. He thought it also possible that the plaintiff might have suffered a cervical intervertebral disc injury.

24. The plaintiff's prognosis in Dr Brooder's view was somewhat guarded. He thought it likely that the plaintiff would remain indefinitely subject to some degree of continuing low back pain. He said that there was a risk that the degenerative changes would continue to deteriorate, and a risk that that might lead to neurological complications, although the degree of risk was not able to be predicted. He thought that in the short term the plaintiff would be able to continue with his employment as a carpenter and joiner, but that there was a significant risk that the low back pain syndrome would deteriorate. If it did, this might result in increasing disability and perhaps prevent the plaintiff from continuing with full-time work as a carpenter and joiner in the longer term.

25. Dr Brooder saw the plaintiff again about a month ago, and generally expressed the same opinion, noting that the plaintiff's symptoms had remained essentially unchanged over the sixteen months since he had last seen him, and had by now continued for about five years.

26. The plaintiff was also sent by the defendant's solicitors in October last year to see Dr Philip Haynes, an occupational physician. Dr Haynes was more sceptical of the plaintiff, and detected what he thought was a degree of feigning in some movements on physical examination, notably the extension and rotation movements of the neck and abduction and external rotation of the right shoulder. In all of those movements, he said, the plaintiff presented with considerable restriction of movement, but not, in Dr Haynes' view, in a convincing manner or a manner consistent with a person suffering from genuine pain at the extremes of those movements.

27. Dr Haynes took the view that the changes seen radiologically in the lumbar spine were consistent with ageing changes. In his opinion, those changes were entirely constitutional and related to ageing and general unfitness, rather than to any injury in the motor accident. Dr Haynes did not consider the plaintiff to be suffering from any genuine ongoing medical condition that could be attributed to the motor vehicle accident, and in his opinion any strain injury to the neck and back would have resolved over a six to twelve month period at the longest.

28. Dr Haynes' view about the cause of the changes in the lumbar spine is inconsistent with the opinion expressed by Dr Speldewinde, and it appears with the opinion of Dr Elder. Although Dr Elder has not specifically expressed an opinion about a causative link with the motor accident, reading his report as a whole I gain the impression that Dr Elder attributes the disc prolapses of the two levels in the lumbar spine to the motor accident.

29. Dr Haynes saw the plaintiff on only the single occasion, and is an occupational physician by speciality. I prefer the opinion of Dr Brooder, who is a neurologist, and of Dr Speldewinde, who specialises in musculo-skeletal medicine as well as rehabilitation medicine, on the question of the causative link between the accident and the damage seen in the lumbar spine. I think that more probably than not the injury to the two levels in the lumbar spine was caused at the time of the motor accident.

30. It should be said, however, that the plaintiff was observed by investigators instructed on behalf of the defendant, who took video of him in public during two periods. The first was late November and early December 2003 at about the time he saw Dr Brooder, and the second was in October 2004 at about the time he saw Dr Haynes. The video showed the plaintiff moving freely, able to rotate his neck without apparent restriction or discomfort, and able to engage in what I would regard as moderately heavy work as a carpenter, removing and installing doors and windows in houses. Indeed the plaintiff conceded, when he was shown the film, that his movements were generally full and free.

31. There is nothing to suggest that in December 2003 he presented in any other way, Dr Brooder having noted that when he saw the plaintiff on that month he had a full range of movement, his gait and general mobility were normal, and he did not demonstrate any apparent disability. It does seem to me that the plaintiff, whether consciously or not, demonstrated on his visits to Dr Elder and to Dr Haynes a degree of restriction of movement in the right shoulder and on straight leg raising and in the toes which was inconsistent with his degree of movement when he was not being observed: perhaps the fairer way to put that is when he was not thinking about it, and was not focusing on it.

32. I assessed the plaintiff in his evidence in the witness box as a generally honest witness. I am not persuaded that he was guilty of any deliberate dishonesty with the doctors, but I am satisfied that he was at the time he saw each of the doctors capable of a considerably greater degree of movement than he displayed on testing.

33. I conclude from all of that that the plaintiff suffered a genuine and serious injury to the neck and lower back in the motor accident of 16 March 2000 and that he was genuinely disabled by it for an extended period of time. By the year 2002, about two years after the accident, and onwards it is clear that he was coping with his work at Stegbar, working for a full day though on light duties, and that he was also able to cope with the supervision of the building of his house as an owner-builder, co-ordinating subcontractors and attending to a substantial amount of work himself, including carpentry work and site cleaning.

34. It seems to me that by about two years after the accident the plaintiff had recovered to a point where his symptoms were not present all the time, but were present intermittently, perhaps when aggravated by heavy work or prolonged periods in the one position. In the same way it seems to me that whilst the plaintiff initially required physiotherapy treatment and painkillers and anti-inflammatory medication on a regular basis, by two years after the accident he reached a point where he required all of those things on the occasions when he suffered pain, but that those were intermittent occasions.

35. Evidence was given in support of the plaintiff's claim by his mother, whose evidence was that she would regularly rub into the plaintiff's aching areas Voltaren cream or Deep Heat ointment, which would provide him with relief. She also gave evidence that there were times when at the end of the day, he would arrive home and go straight to bed. I was not persuaded by the evidence of the plaintiff's mother that he was any worse than I have described in my conclusions about his own evidence. But I should also say that his joint venture partner, Mr Satlabanis, also gave evidence, and from his evidence I gained the impression that the plaintiff has bad days but generally copes with the work required of the business; and I am reinforced in that view by my conviction that if that were not the case Mr Satlabanis would not continue with the arrangement.

36. By way of past loss of earnings a claim is made for $3197 and that is made up of loss of overtime for the period of about a month after the accident: $425 net, supported by a letter in evidence from Stegbar; loss of income during November and December 2000 of a little over $600 net, again supported by a letter from Stegbar; and loss of overtime at an average rate of about $70 a week over the seven months from the plaintiff's move into the customer service position and his departure from Stegbar. That is again supported by documentary evidence from Stegbar and I am satisfied that that part of the claim is made out. I note that there is no claim for any loss of earnings since the plaintiff started his own business, so by way of past economic loss I allow the rounded amount of $3200.

37. In relation to future loss of earnings, the plaintiff's career path is still a little unclear. He is at the moment working, and working effectively, in the joint venture with Mr Satlabanis. I notice that in the originating application his solicitors asserted, I must assume on his instructions, that it was always his intention to seek a C-class builder's licence which would ultimately have enabled him to build single-level dwellings. For the purpose of building his own house during 2002, he gained a D-class licence as a builder, which does not permit him to build houses but does permit him to build a limited class of buildings, to undertake shop and office fitouts and to install doors and windows.

38. While he was at Stegbar he undertook a course at the Canberra Institute of Technology in Business Management, and he obtained a certificate in that course, which enables me to infer two things: firstly, that he was regarded by Stegbar as a sufficiently satisfactory employee for them to spend money sending him to a course of that kind; and secondly, that he has the capacity to undertake and pass such a course.

39. The plaintiff gave evidence of a number of courses which are available at the Institute of Technology: for example, an advanced course in Business Administration which would lead to a diploma if he continued it; another course, in which he expressed interest, Interior Design; another in Project Management; and of course, the course - although he did not refer to this in detail - which would lead to his licensing as a C-class builder, and enable him to go into business on his own account as a builder.

40. He has a number of those options open to him. In the face of Dr Brooder's prediction that he is likely to have more trouble with his low back as the years go by, and that ultimately that may prevent him from continuing full time in the kind of work he is doing now, and also his previously expressed ambition, it seems to me likely that the plaintiff will undertake further courses of study leading to further qualifications which will enable him to progress in the building industry, perhaps as a builder, or perhaps as a project manager.

41. I think it unlikely that the plaintiff will take time off work to study full-time, bearing in mind that he has worked ever since he left school, and is used to earning income, and bearing in mind the fact that the courses I have referred to are available at the College part-time over a longer period than the full-time course. I think it most likely that the plaintiff will keep working and will undertake one of those courses on a part-time basis, ultimately qualifying for and moving to a position less physically demanding than his present business, and at least as remunerative.

42. It is not possible to be mathematically precise about the cost of retraining but I take account of it. It may be some time before the plaintiff enters upon one of these courses and I also take account of the fact that there will be expense involved in attending such a course over and above the course fees themselves, such as travelling expenses and interference with the present flexibility the plaintiff enjoys in structuring his working hours.

43. In the circumstances I cannot be more precise than to make an allowance for retraining expenses of $1000, and to allow a buffer for future reduction in earning capacity, to the extent that that is likely to be reflected in loss of earnings, taking account of the fact that it needs to be reduced to reflect the fact that it is being received or assessed now and may not be suffered as a loss until many years in the future: a buffer of $10,000.

44. The plaintiff also makes a claim for the loss associated with the fact that having had a spinal injury, he is unable to obtain personal accident and illness insurance to cover him for loss of earnings in the event that he is unable to work for periods in the future, except with an exclusion in relation to conditions of the spine, discs, nerve roots and supporting muscles and ligaments. The evidence is that when the plaintiff started his business, he sought insurance to cover accident and illness as well as the other aspects of business insurance such as fire and burglary and public liability, that he was able to find only one insurer prepared to provide such insurance including personal accident and illness cover, NRMA Business Insurance, and that he took that insurance out.

45. His evidence was that his mother made enquiries on his behalf, largely in his presence, by telephone from a large number of insurance brokers. His mother gave oral evidence about having done that. Whilst objection was taken to her evidence as not capable of being used to establish what insurance might be available in the market, I accept her evidence as evidence that at least she and the plaintiff took reasonable steps available to them having regard to their position in society and in life. I accept that the only insurer they were able to identify who would offer this cover was NRMA Business Insurance, and that the cover was offered only subject to the exclusion in relation to the spinal condition from which the plaintiff suffers.

46. The policy that was taken out would provide him with a weekly benefit of $1000 if he needs to take time off work because of accidental injury or illness. I must take account of the fact that any income he might lose in the future which arises even indirectly because of the injuries sustained in this accident is already covered by the buffer I propose to allow for future economic loss, so that I am looking in relation to the insurance only at the fact that he will not be covered for other unrelated spinal injuries or conditions which he might suffer in the future. Bearing in mind his age and the length of his working life, it seems to me that a reasonable allowance for the loss of availability of insurance against that risk is $5000 which I note is equal by coincidence to a claim for five weeks under the policy.

47. The plaintiff claims by way of future treatment expenses the full cost of all of the courses suggested by Dr Speldewinde: that is, $2500 for the neck strengthening program, $1000 for the pain management assessment, $3000 for the pain management program and $1000 for the lumbar spinal fitness program, a total of $7500. I am not satisfied that the plaintiff any longer suffers from any serious neck injury. It appears to me having observed the video that whilst I accept that the plaintiff may suffer aches and twinges from time to time, the neck is no longer a matter of significance and it is extremely unlikely that the plaintiff will elect to spend $2500 out of his damages on a neck strengthening program.

48. Similarly, I am not satisfied that the plaintiff's continuing lumbar pain is so frequent or intense that he would be likely to spend $1000 on a pain management assessment, or, assuming that he were assessed following such an assessment as a candidate for a pain management program, such a program. I do think that it is likely that the plaintiff will decide to spend out of his damages $1000 on a lumbar spinal fitness program.

49. I take account of the known spinal defects apparent on the CT scan and the opinion of Dr Speldewinde and Dr Brooder that he is at risk of deterioration in the lumbar spine as the years go by. It strikes me that having assessed the plaintiff as a sensible young man, he will very likely adopt the sensible course of undergoing a program to strengthen his low back if he is put in funds to do it, and I would make an allowance for the cost of that program.

50. I also make allowance for the fact that the plaintiff will continue from time to time to require painkillers and anti-inflammatory medication and that from time to time, probably infrequently and irregularly, he will need to see his general practitioner for assessment, treatment and future prescriptions.

51. I also take account of Dr Brooder's evidence that there is a possibility of future deterioration of the lumbar spine which would inevitably lead to treatment. I do not assess that risk as particularly high. Having regard to those considerations, I propose to allow $3,000 for future treatment expenses.

52. By way of general damages for pain and suffering and loss of enjoyment of life, I take account of the acute period following the accident when the plaintiff, I accept, was in considerable pain and discomfort. I acknowledge the loss of his competitive shooting and the fact that he continues to have to put up with episodes of low back pain from time to time. But otherwise, it seems to me that the plaintiff generally has made a reasonably good recovery from his injuries and that an appropriate amount to award by way of general damages is $35,000. I apportion $20,000 of that to the past, attracting interest of $2,500.

53. The individual components of the award will be: general damages $35,000, interest on general damages $2,500, agreed past treatment expenses $5,083.34, interest on $2,000 of that amount for three years $600, future expenses for treatment $3,000, past loss of earnings $3,200, interest on past loss of earnings $1,000, allowance for retraining expenses $1,000, future loss of earnings capacity $10,000, and loss of availability of insurance cover $5,000. If my mathematics is correct, the total is $66, 383.34. I note that out of that sum, the defendant's insurer is to have credit for an amount of $2,799.35, being that part of the allowance for past treatment expenses which has already been paid direct by the insurer or reimbursed by the insurer to the plaintiff.

54. Following the delivery of reasons for judgment in this matter, in which I awarded damages of a little over $66 000, the defendant handed up copies of two Calderbank letters, the first dated 26 November 2004, making an offer of $100,000 plus costs less payments made by the defendant's insurer. The letter was sent to the plaintiff's solicitors by fax at about 1 pm on that date, and the offer was expressed in the letter to remain open until 5 pm on the same day. This was in the context that the action was listed for hearing on the following Monday, the day of the offer being a Friday. I am not satisfied that it is reasonable to expect a plaintiff to make a decision as to whether to accept an offer of that kind within four hours. I do not know that it would have been possible for the plaintiff's solicitors to contact the plaintiff within those four hours: it was a working day and it may not have been possible, and I would not be prepared to make any special order about costs based on that letter.

55. However, the action was not reached during the last week of November last year and the Chief Justice granted leave to the parties to approach the List Clerk to fix a fresh hearing date. Late in January the hearing date this week was fixed. On 27 January the defendant's solicitors wrote another letter in Calderbank terms, offering $120,000 plus costs, less the expenses paid by the insurer. That offer was expressed to remain open until 24 February 2005. I am satisfied that that was a reasonable period for the plaintiff to make an informed decision whether or not to accept the offer, and that the plaintiff must be taken to have rejected it.

56. The plaintiff seeks an order for costs up to an appropriate date having regard to the Calderbank offer. The defendant does not oppose such an order, but seeks an additional order that the plaintiff pay the defendant's costs on an indemnity basis from the date of the letter. It seems to me that rather than take the date of the letter as the effective date for the purposes of any costs order arising from it, the date which should be taken is a date allowing a reasonable time for acceptance of the offer. It seems to me in relation to an offer made on 27 January that a reasonable period would be two weeks, 10 February 2005. I order that the defendant pay the plaintiff's costs up to and including 10 February 2005.

57. The effect of that order is that those costs are recoverable on a party-and-party basis. I am not satisfied that justice would be achieved between the parties by making the order sought by the defendant in relation to costs after that date. I am satisfied that the interests of justice would be properly served by making no order in relation to the plaintiff's costs after that date. The plaintiff must bear those costs out of his damages. It seems to me that that represents an adequate sanction to give effect to the Calderbank letter. I note that the defendant's insurer is considerably better off than it would have been if the plaintiff had accepted the Calderbank offer, having regard to the amount of the offer.

58. I also take account of the fact that the plaintiff is an individual, a young man who was at the time of this accident still an apprentice carpenter and is now running his own one-man business as a carpenter, and an ordinary member of the community who, I am prepared to infer from the totality of the evidence in the case, is not a person of substantial independent financial means.

59. The defendant, on the other hand, is indemnified by a compulsory policy of insurance issued by a company which is the sole approved authorised insurer in the Territory and which is part of a group which is one of Australia's largest listed public companies. The impact on the plaintiff of the order sought by the defendant would be immense, whereas the impact on the defendant of not making that order, but rather an order which has the effect that each party pays his and her own costs after 10 February 2005, is likely to be negligible, both in terms of the company group as a whole and in terms of the insurance portfolio of which this claim forms part.

60. It seems to me that the interests of justice are adequately served by the orders which I propose to make. The defendant is to pay the plaintiff's costs up to and including 10 February 2005. There will be no order as to costs after that date.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.