Charles Karam v Farid Aude

MEDICAL EVIDENCE

Neither party put the other to proof of statements attributed to the plaintiff contained in expert medical reports.
The plaintiff's claim is for injury to his neck and low back causing impairment in those locations.
On 8 October 2012 the plaintiff underwent CT scanning of his cervical and lumbar spines. For this he was referred to Superscan by his GP Dr Luong.
Superscan reported in summary: neck: mild spondylotic change present in the discovertebral joints, with evidence of loss of disk height, end-plate sclerosis and end-plate osteophyte formation. Moderate arthritic change present in the joint between the dens and the anterior arch of the atlas. Mild arthritic change is present in the facet joints. In the lumbar spine the summary of findings was: mild spondylotic change is present in the disco vertebral joints, with evidence of loss of disk height, end-plate sclerosis and end-plate osteophyte formation. Moderate arthritic change is present in the L4/L5 and L5/S1 facet joints.
Counsel for the parties jointly approached the assessment of damages on the basis that the plaintiff suffered from age related degenerative disease of his spine at the time of the motor vehicle accident. The contest concerned whether or not there was pre-existing impairment consequent of that degenerative state, and the degree of impairment resulting from the trauma of the accident upon that degenerative spine.
The defendant cross-examined the plaintiff extensively on his failure to disclose to medico legal reporting doctors his prior relevant history of injury to left shoulder and complaints of neck and low back pain. Dr Machart proceeded with his assessment relying on the Plaintiff's report that his back and neck were asymptomatic before the accident. Dr Sharpe was briefed with the Allcare Medical Center clinical notes but not with Dr Maruon's notes. The Plaintiff's medico-legal reporter, Dr Patrick did not have the benefit of relevant pre accident history other than of the left shoulder injury.
Clinical notes for the nine years preceding the accident included several complaints of neck and back pain mentioned in the course of the plaintiff seeking medical treatment for other ailments. The defendant took me to clinical notes showing that those complaints included an incident of lifting and an incident of having fallen down stairs as well as a complaint of pain from the neck on the left side to the trapezius made to the plaintiff treating cardiologist in 2010.
The plaintiff suffered a significant injury to his left shoulder at work in about 2001 of which he received workers compensation until his retirement in about 2009. The whole of the evidence was that his disability was continuing at the date of his retirement. An occupational assessment performed in early 2007 by Ms Tsung, Rehabilitation Consultant at Endura, described the injury as reported by the plaintiff to be to his neck and shoulder as he assisted his colleague in loading boxes of stock into the truck. The plaintiff conceded the left shoulder injury and ongoing incapacity for which he received workers compensation but rejected the proposition that he had described the injury as including to his neck. His fitness for work was assessed by Endura in 2007 (6 years post injury) as: 1. fit for suitable duties for two hours per day, five days per week; 2. lifting restriction of 2 kg on the right side; 3. no lifting on the left side; 4. walking up to 30 minutes; 5. standing up to 30 minutes.
Whilst the plaintiff in cross-examination denied impairment of use of his left shoulder at the time of the motor vehicle accident and blamed the whole of his claimed impairment on the motor vehicle accident, I accept that the plaintiff prior to the motor vehicle accident had a long history of impairment of use of his left shoulder and of episodic neck and back pain, which symptoms were continuing.
On a rough count the plaintiff attended Allcare Medical Centre in addition to his attendances upon Dr Maroun three times in 2007, three times in 2008, six times in 2009, nine times in 2010 and 2011, 22 times in 2012, seven times in 2013 and 19 times in 2014. In addition to general minor health matters such as ear, nose, throat, colds and flu, the clinical notes show attendances for ongoing high blood pressure with referral to cardiologist, diabetes, psoriasis, podiatry and hernia. Whilst at the hearing before me neither party made anything of a nervous shock type of element to the claim, the plaintiff had been earlier in assessed by the specialist psychiatrist and MAS Assessor Dr Virgona. He told Dr Virgona that his sex life was "shattered, finished, getting worse" since the accident. He told specialist neurologist Dr Sharpe "that soon after the accident he began having some difficulty with intercourse in that erections were more difficult to maintain". Dr Sharpe reported that the plaintiff denied such problems prior to the accident. The pre-accident clinical notes plainly show that the plaintiff suffered these problems probably from at least 2009.
On the whole of this evidence I reject the defendant submission that the plaintiff is a witness lacking in credibility but find the plaintiff to be an unreliable witness in that he attributes his broader loss of amenity of life to the motor vehicle accident, perhaps believing that to be so; when the unavoidable observation is that he in fact experienced impairment to some degree of neck and back, and a significant impairment of left shoulder function prior to the accident. That the plaintiff blamed his erectile dysfunction on the accident, when the documented medical literature shows it to be a condition of his general health and suffered for years prior to the accident is an example of this.
Accordingly I am guided to the degree of impairment consequent of the accident by the medical literature and do not accept the plaintiff's oral evidence describing impairment inconsistently to that which I find in that literature.
I have considered the report of the plaintiff medico legal expert Dr Patrick, general and vascular surgeon and trauma surgeon as well as the reports of Dr Marchart, orthopaedic specialist, and Dr Sharpe, neurologist, in the defendant case. The doctors were not called in evidence. I raised the benefit of hearing doctors give their evidence orally. The parties elected that the case proceed and that I give judgement on determination by medical reports only. Again, the consequences of s 111 were identified to me as a reason why counsel did not call the doctors. I notice also the consideration of costs being kept in proportion to the modest quantum of the claim.
Dr Patrick, in his report 23 July 2013 described the nature of the traumau of the motor vehicle accident, inflicted upon the plaintiff's degenerative spine in the terms: "I believe he sustained a significant hyperflexion and lateral flexion injury". I accept that description. Whilst Dr Patrick described probable categories of spinal joint and disk injury to the cervical spine as well as thoracic facet and lumbar facet injuries consequent of that trauma, his assessment of resultant impairment must be considered in the context of his not having been briefed with the history of pre accident symptoms.
Dr Machart reported that the degenerative changes contribute to the overall symptom pattern in the neck and in the back proportionately three quarters due to pre-existing condition and one quarter due to the impact of the injury.
He chose those proportions based on his observation of the multilevel nature of the pre-existing pathology and the severity of the pathology with his contemplation of the trauma of the motor vehicle accident and the plaintiff's history immediately following the accident in relation to seeking medical treatment for his injury.
He prognosised continuing improvement of symptoms was expected over a year or two, from the dare of his report
Approximately one year after Dr Machart's examination, the defendant specialist neurologist Dr Sharpe concluded that the symptoms caused by the motor vehicle accident were stable. Dr Sharpe assessed zero WPI, cervical and lumbar.
All doctors assessed the plaintiff as having nearly complete range of neck movement. In the witness box that was displayed. As I drew to the attention of counsel, during the hearing; I observed the plaintiff to be an animated witness who freely rotated his head from left toward me and right toward his counsel. In each direction his chin coming approximately to his left shoulder. I do not mean to be precise as to measure but I do mean to say that I observed it to be, to my layperson's observation, an expected range of normal movement. He also nodded his head up and down to agree with the examiner on occasion. He was able to sit up and take a drink from the cup when he wanted to. He gave evidence over several hours without any sign of or complaint of discomfort in his neck or low back. He remained seated throughout. Bearing in mind that, as I understood him, his major complaint concerns his neck, disability was not apparent to me. His movements and deportment whilst giving evidence were such that I do not accept that restriction of range of movement of neck or capacity to sit or to maintain those observed postures would cause him to experience impairment of ability to perform domestic duties.
In September 2014 Dr Sharpe summarised the plaintiff's complaints as: the current neck complaint is more of a tightness and pressure on the neck than a plain. The current back complaint is more of a pressure than pain. Symptoms in both spinal areas are intermittent, not necessarily present every day, but sometimes a few times a day and lasting about 15 minutes at a time.
The only medical report recording the plaintiff's complaints of symptoms following the motor vehicle accident is the report of Dr Luong. In his report dated 3 September 2013 he recorded the plaintiff's report that three hours after the accident he experienced pain commencing in his cervical region which became severe and constant neck pain for one week. Three days after the accident the plaintiff noted pain from the left side of his neck across the left supraclavicular region and down the dorsal aspect of the left arm into all fingers and it would last about 20 minutes. In relation to this complaint it was conceded by counsel for the plaintiff that sensation in the fingers was related to the plaintiff's pre-existing condition of diabetes and not part of his claim.
Next Dr Luong recorded associated with pain down the left arm, was numbness in the whole of the hand. This numbness occurred 1 to 3 days per week. Again counsel for the plaintiff conceded the numbness to be not related to the subject motor vehicle accident. There is no evidence of radiculopathy supporting that complaint to be caused by the accident.
Dr Luong reported that three weeks after the accident the plaintiff complained of stiffness and the neck including waking up with a stiff neck. The episodes of cervical spine stiffness lasted around half an hour.
Dr Luong recorded the plaintiff's report that in relation to the lumbar spine injury, the plaintiff noticed pain commencing three hours after the accident which persisted to be severe three days after the accident. That the plaintiff complained that he would notice lumbar spine pain one or two times per day lasting around 15 minutes. Dr Luong recorded that the plaintiff complained that from two days after the accident he noticed numbness down the anterior aspect of the left and right lower leg into the dorsal aspect of both feet extending into all toes. The numbness would last about 10 to 15 minutes. He recorded that the plaintiff noticed weakness in both legs three days after the accident such that they tended to shake and he was unable to walk at his normal quick pace. Again, the plaintiff does not press a claim for radiculopathy into his legs and feet.
As at September 2013, the continuing impairment associated with neck and back, described by Dr Luong was pain and stiffness in the neck across the back of the left and right Supraclavicular region occurring 3 to 4 times per week and lasting 5 to 15 minutes and lumbar pain once or twice per day lasting around 15 minutes.
On page 6 carrying over to page 7 of his report Dr Luong lists claimed impairments but given his inclusion of symptoms conceded by the plaintiff as not caused by the accident; that list is of minimal weight in my consideration.
On examination in July 2013, Dr Patrick recorded the plaintiff complained of being troubled by ongoing pain at the mid back and into the scapular region and also with neck pain and stiffness and troublesome low back pain. The plaintiff complained of difficulty turning his head left and right. He recorded that the plaintiff complained of sometimes hearing a noise on neck movement. Dr Patrick recorded cervical spine flexion of 90%, extension of 75% but lateral rotation to the right of only 50% and to the left of just 40%. This does not accord with my observation of the plaintiff in the witness box.
Taking the whole of the documentary evidence of the parties I am of the opinion that the injury is appropriately described as soft tissue.
Dr Patrick described the plaintiff as incapacitated for physical/manual work involving heavy lifting/carrying frequent bending, prolonged stooping, working in awkward situations, or activities which might result in significant jolting/jarring to his neck or back.
On the whole of the evidence I accept that the plaintiff suffered severe pain and restriction in his neck and in his lower back for about one week after the accident and thereafter that the plaintiff has suffered intermittent symptoms of pain in his neck and low back, which symptoms are not suffered every day and are of short term duration. On the medical evidence the Plaintiff is impaired as a result of the accident by his symptoms in the neck and lower back for 15 to 30 minutes about 4 days per week. I accept that it continues.
The medical evidence does not identify a period of symptoms such as would impair this gentlemen from performing all but heavy manual tasks in the course of domestic duties where he would be able, in accordance with his retired lifestyle, to perform those tasks when and at the pace he chose to comfortably do so.
Past medical care has been conservative and modest. The plaintiff received only three or four treatments of physiotherapy. He found it made his condition worse. He says that he has taken Panadol Osteo, one at a time. On some days he takes none but on most days he does take it. It is an over the counter pharmaceutical. He buys a pack of 100 for about $8, three-monthly. This equates to only about one tablet per day on average. In closing, the plaintiff submitted continuing medical treatment only in terms of GP attendance and Panadol Osteo.
The plaintiff relies, in relation to his claim for Attendant Care for domestic duties, upon the opinion of Dr Patrick which is expressed in terms: "some requirement" for domestic/household assistance. "I believe it is reasonable that he has required approximately 6 hours such assistance per week during the initial six months post-accident, and subsequent to that time approximately 3 hours such assistance per week continuing". The plaintiff also relies on Dr Patrick's work fitness assessment that he is permanently incapacitated for physical/manual work involving heavy lifting/carrying, frequent bending, prolonged stooping or working in awkward situations, or activities which might result in significant jolting/jarring to his neck or back".
Dr Patrick's assessment, except for limitation of heavy physical/manual activity is based upon his acceptance that the plaintiff was wholly asymptomatic before the accident and otherwise upon the plaintiff's report of symptoms and history. It is inconsistent with the medical history of the plaintiff's long-term, continuing left shoulder impairment for heavy lifting to allocate the whole of that incapacity to the plaintiff's neck and back symptoms in real life activity. Dr Patrick's assessment is inconsistent with the report of intermittent neck and back symptoms which I have found to be made by Dr Luong. His opinion is also inconsistent with the opinions of doctors Machart and Sharpe. In his expression of opinion of hours of domestic assistance reasonably provided, he does not identify the duties or his consideration of the physical work required in relation to those duties in the context of the plaintiff's injuries. For these reasons I reject the plaintiff's submission that I should be guided by Dr Patrick's assessment in the provision of attendant care services pursuant to s 141B.
In my opinion, without going to the medical evidence of pre-existing conditions, taken on its own, the expert medical evidence does not support the plaintiff's claim for six hours domestic assistance in the form of attendant gratuitous care per week for six months. I think it likely that the plaintiff required significant gratuitous attendant care and received that care from his family for some days or weeks but not for six months following the motor vehicle accident.

FACTUAL EVIDENCE - ATTENDANT CARE

The plaintiff and his 39 year old son Dory gave factual evidence.
Dory's evidence was plainly supportive of his father and each of them gave evidence of impairment, Dory more so than the plaintiff, beyond that which I have found to be established by the documentary medical evidence.
Exhibit 2 is a written statement by Dory dated 2 June 2015. He agreed that he made it knowing that it would be used in the CARS Assessment hearing and therefore that its contents were to be true and correct. Relevantly, it reads: "(3) Prior to this car accident, my father performed the heavier household duties, including lawn-mowing, helping my mother with the carrying of heavier shopping items, washing the cars, and taking rubbish / bins out for collection. (4) Prior to my father's car accident, I didn't provide for any of the household chores mentioned in (3) above. (5) Following my father's car accident, I provided and continued to provide assistance to my father to complete the household duties mentioned in (3) above."
Plainly, that prior statement by Dory identifies assistance provided by him following the accident, as only in regard to heavier household duties and generally no references made to cooking, cleaning or laundry. During cross-examination Dory agreed those matters were not included, he said "unless household duties" is taken to include them. Further, it was properly put to him that whereas in his statement he identified 6 hours per week of household assistance, in his oral evidence the hours of contribution amounted to more, perhaps 9.
Whereas Dory said that following the motor vehicle accident the plaintiff does not assist with cooking at all, and cannot even make himself a sandwich; that is inconsistent with the plaintiff's clear evidence that he is capable of preparing a simple meal for himself and his wife that he continues to share cooking the evening mealwith his wife for all 5 adults, contributing about 25%. Whereas Dory gave evidence that he has to accompany his parents shopping because his father can only get light items from the shelves to the trolley and at his father's 1.63m height; the plaintiff's evidence, during cross-examination, was that he continues to perform the shopping with his wife but with some adjustment.
To my observation, Dory gave evidence in an attempt to support his father in the case. Evidence of who contributes what to the domestic services in the household, as it presently is, of 5 adults, can be expected to be somewhat impressionistic. If interrogated separately, in any such household the participants would be likely to not give identical evidence of each other's contribution.
On balance, I consider Dory's evidence with caution, such that I do not accept his evidence over that of the plaintiff unless it is against the plaintiff's interests in the case. Indeed, Dory gave evidence that he is a full time shift worker away from the home either day or evening. Depending on the shift and because of varying travel items according to his shifts, his time away from the home, 5 days a week, varies between 10 and 13 hours per day. That must limit his opportunity to observe the domestic activities of the plaintiff who lives the retired lifestyle where he is generally able to undertake domestic chores at the time and at the pace of his choosing.
The plaintiff gave evidence that at the time of the motor vehicle accident, the plaintiff lived with his wife, Dory and daughter, being all adults of obviously independent age and capacities, in a large home property at Middleton Grange. The house was split level, 4 bedrooms, 3 bathrooms, kitchen, laundry, TV / rumpus and dining room. The lawns were substantial indeed, the property occupying 1,500 m2. The lawnmower was not a ride on. The estimated time for mowing the lawns was 5 hours.
In about mid-2013, the Middleton grove property was sold and the family moved to a new house property at Hinchinbrook. This property consisted of land of approximately half the size (750 m2) and a house of 3 bedrooms, including one with ensuite, 1 family bathroom, kitchen, laundry and lounge room.
The plaintiff's daughter Susan returned from overseas to the house at Hinchinbrook and at a time, not identified in the evidence, her husband commenced living with the family in the home making a total of 5 adult persons, all of independent age and life resources.
It is not necessary for me to deal with the evidence in detail of how long it took to perform which functions of the domestic duties identified in oral evidence in each of those homes. This is because the plaintiff made several concessions against self-interest during the cross-examination.
Considering the whole of the evidence and in particular the plaintiff's evidence in cross-examination, the oral evidence supports the following findings: 1. Cleaning: Prior to the accident, the husband and wife shared the cleaning. The Middleton grove house was carpeted. Vacuuming of the carpeted floors took about 2 hours. The plaintiff said that he was unable to perform vacuuming post-accident. In the Hinchinbrook home, the floors are tiled except for Susan's bedroom. Susan vacuums her own bedroom. Explaining his impairment for vacuuming, the plaintiff said that approximately 6 weeks ago he attempted to vacuum his daughter's bedroom and both hands went numb. As I have identified, the plaintiff's complaints of radiculopathy to his hands, such as he complained of to Dr Luong, are in his subjective view attributable to the accident. That view is not supported by the medical evidence and so much is conceded by plaintiff counsel. Accordingly, the plaintiff's own evidence of his impairment from vacuuming does not identify a connection to the injuries of neck and back for which he claims such as to describe his impairment from undertaking it. The plaintiff agreed that he can sweep the tiles, dust and do the mopping. Generally in relation to cleaning, he said that if he feels like it and feels ok, he can do it. The evidence did not identify any item of cleaning which the plaintiff was unable to do because it was heavy work, the impairment to perform which, related to his neck or back. In my view, finding as I have done that the plaintiff suffers intermittent pain and restriction caused by the motor vehicle accident around which, in the course of his retired lifestyle, he is able to perform tasks at his own pace; nothing in the evidence identifies to me cleaning tasks for which the accident has caused the plaintiff to be entitled to attendant care. 2. Cooking: the plaintiff said that prior to his injury his wife would direct him how to cook and he performed the whole of the physical cooking for the household. He said that after his injury, he and his wife continued to share the cooking but he was able to do much less (25%) of the cooking for the whole of the family. He conceded that he is readily able to prepare a simple meal for himself and for his wife. He said that he can handle pots and pans. He said that he can wash up, but not all. On a good day he can stand at the sink to wash up for half an hour. Strangely, the evidence did not enquire of the use of a dishwashing machine. Cooking was estimated to take 2-3 hours (regardless of which house the family were living in) per night. Bearing in mind the independence of the adult capacities of the members of the household, nothing in the evidence identified to me heavy lifting or heavy physical activity involved in cooking which, on the extent of the evidence as I have found it, I would find the plaintiff impaired performing. Again, the plaintiff has the opportunity in his retired lifestyle to organise cooking activities and indeed to choose what is to be cooked around his capacities. That he shares the cooking with his wife and that he is readily able to prepare a meal for more than just himself; tends against finding an entitlement to attendant care assistance in relation to cooking. The plaintiff conceded that he is fully capable of and does completely undertake his own breakfast and lunch. Dory's evidence is that the cooking is now done by himself and by Susan, such that she cooks when he is on nightshift. On all of the evidence, cooking is shared between family members to the extent that they contribute. In the common event that these adult children now undertake more of the cooking, the plaintiff would have more time for other activities. The evidence amounts to an adjustment of activities as opposed to an identifiable need for assistance in the co-mingling of a family household of adults; White v Benjamin [2015] NSWCA 75. No clear line can be drawn between services required by the plaintiff and those which benefit the family members. In my view, the plaintiff has not identified the basis upon which a particular award in relation to cooking can be made: White v Benjamin [2015] NSWCA 75. 3. Laundry: The evidence is that before the accident laundry was shared between husband and wife but that after the accident, the plaintiff says, his wife will not let him do it and Dory does it. Dory gave evidence of performing the laundry. The plaintiff conceded he could load and unload the washing machine and hang the washing on the line. He could do it if he took smaller bundles of items or items singularly at a time. He conceded expressly that he could load, unload and hang a towel. In my view, that evidence does not support compensation for attendant care services. 4. Shopping: Whereas Dory's evidence was that he accompanied his parent's shopping once per week because the plaintiff is unable to select heavier items or items which he has to reach; the plaintiff's evidence was that both before and after the motor vehicle accident shopping has been shared between himself and his wife. He said that the time spent before and after the accident was the same and that the time taken by his wife in assisting him after the motor vehicle accident is the same time she contributed to shopping before the accident, but that their roles are a little adjusted. The adjustment was not specified. Even were I to accept Dory's evidence, given the assistance available to customers from staff in shopping centres when dealing with bulky or heavy items, there is nothing in the evidence identifying shopping which the plaintiff and his wife are not able to undertake such as to identify the time and duty to be performed by attendant care services. In my view, the evidence does not establish an entitlement to attendant care services for shopping. 5. Car Washing: Plaintiff's evidence is that before the accident he washed his car and Dory's car but that after the accident Dory does the car washing. Dory's evidence was that before the accident he washed his own car and that when he was washing his car his father would join him and wash the parental car. Car washing took 1-1.5 hours. Evidence did not go to the plaintiff having attempted car washing but having to cease because of pain or otherwise the features of car washing which, by movement or heaviness, he is unable to perform. That said, given the evidence of intermittent symptoms as I have found lasting only 15 minutes to half an hour, and given that on Dory's evidence he and his father washed cars at the same time and therefore would be able to share that activity by some adjustment of who was performing what in the process; the evidence does not rise to identify the duty and the time for the duty requiring compensation for attendant care services. 6. Lawns: The evidence was that the plaintiff mowed the lawns before the accident and Dory mows the lawns after the accident. I accept that lawn mowing is an activity which is heavy for the neck and back given the substantial areas to be mowed and that the family does not own a ride-on mower. That said, one would expect that given the plaintiff's age, his 39 year old son Dory or his 36 year old daughter Susan or her husband would, in the natural course, mow the lawns, at least on some occasions and more so as the plaintiff ages. Dory agreed with this in regard to his own sense of obligation to assist with heavier household work. In my view, lawn mowing is heavy work for which the plaintiff would be entitled to attendant domestic services on account of the nature of the physical activity involved. The evidence was that the lawns are mowed once per month in winter and once per fortnight in summer. Considering the larger block which took 5 hours to mow with a pushed-powered mower. In the six months following the injury, mowing with a pushed-powered motor would total a maximum of 30 hours, calculating to a little more than 1 hour per week.
Consideration of the s 141B thresholds necessarily focuses upon Dr Luong's report that severe pain and restriction was only suffered for less than 2 weeks, and thereafter only intermittent pain and stiffness of between 15 minutes and half an hour several days per week. Taken as a whole, the evidence does not come near satisfying the thresholds of 6 hours per week and 6 months. For that reason, the plaintiff is not entitled to gratuitous care.

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Judgment (9 paragraphs)

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Cases Cited (4)