FACTS
5 The plaintiff was born in Macedonia on 1 June 1953. He was 43 years old at the time of the accident and is 49 now. He married in 1971 and he and his wife have two daughters now aged 27 and 20. He left Macedonia in 1992 to come to Australia and has been resident here on a temporary entry visa ever since, although he has applied for permanent residency. His wife followed him a year later.
6 Since his arrival in this country he has worked as a painter in partnership with his brothers under the business name 'Ideal Painting Services' and at other times he has worked as an employee or subcontractor for the first defendant. He said that in the 3 years before the accident he spent a lot of time working for the first defendant and in particular worked for the company for most of 1996 up until the time of the accident.
7 At the time of the accident he was in good health. He had been involved in a motorbike accident in Macedonia in about 1969 in which he hurt his shoulder. There was some issue at the trial as to whether he also suffered brain damage in this accident and I shall come back to this aspect shortly.
8 Following his fall, the plaintiff was taken by ambulance to the Emergency Department of Royal Prince Alfred Hospital where x-rays and CT scans revealed a wedge fracture of the 1st lumbar vertebra and burst fractures of the 3rd and 4th lumbar vertebrae. A chest x-ray revealed fractures of the 7th to 9th ribs on the right side and he also suffered several avulsion fractures of the left talus. He was treated with bed rest and analgesia, a Boston Brace was fitted and he was discharged from hospital on 19 December 1996. He continued wearing the brace for a few months and commenced physiotherapy and hydrotherapy. Initially his condition improved but after about 6 months it appears to have deteriorated.
9 There have also been a number of other injuries and conditions alleged which require particular consideration including organic brain damage, headaches both frontal and occipital, neck pain, and psychiatric symptoms such as change of personality, depression, anxiety, loss of cognition, loss of memory and addiction to prescription drugs. The complaints of neck pain and occipital headaches only appear to date from his visit to Dr Mahony in December 1997 and so I have disregarded them as being related to the accident.
10 The plaintiff was able to give the Court a detailed account of the fall off the elevated lift platform and the events leading up to it. He was also able to give similar detailed accounts to a number of doctors, including Drs Patrick, Ditton, Hordern, Terenty, Walker and Maguire and to Mr Rawling.
11 The plaintiff said that after the fall he saw people around him and heard the ambulance arrive but claims he lost consciousness after that until after he was in hospital; and his wife and daughters claim that when they saw him at the hospital later that day he was unconscious and they were unable to speak to him until the third day after the accident. However, the ambulance records show that when tested at the scene by reference to the Glasgow Coma Scale (GCS) on three occasions between 11.40 and 11.58am he recorded a maximum score of 15 on each occasion.
12 The hospital admission notes record him as responding to questions by a friend, oriented as to time and place and, although there is one entry showing a finding of + or - 8 out of 15 on the GCS (with limited English noted), the other readings are 14/15 (with friend to interpret) at 12.00, 12.30, 1.00 and 2pm. From 3pm, when his daughter is noted as interpreting; his score was 15 and it remained so thereafter. These readings, except for the aberrant and unexplained +/- 8 are inconsistent with unconsciousness and strongly indicate no traumatic brain injury.
13 In addition there is only one reference in the hospital notes to headaches, namely on 8 December when the plaintiff was treated with analgesic. Having regard to the report of 26 January 1998 from Dr Oreb, the plaintiff's general practitioner and the doctor's patient records (Ex. X6) it seems that the first complaint of headaches to that doctor was on 17 March 1998 (some 15 months after the accident) and to Dr Kecmanovic, his treating psychiatrist, in September 1997 (Ex. X5), and when seen by Dr Patrick on 27 August 1997 he described the headaches as "recent".
14 Drs Walker, Terenty and Ditton and the psychologists Mr Rawling and Dr Roldan, were of the opinion that the plaintiff had not suffered brain damage as a result of his fall. Amongst the matters they relied on were their examinations of the plaintiff, the GCS readings referred to above, the fact that the plaintiff was able to give a detailed account of events leading up to the accident and that the gradual deterioration of cognitive function as described by the plaintiff is not consistent with brain injury (see Dr Terenty's report of 25 August 1999 at p 3 and report of the Westmead Brain Injury Rehabilitation Programme of 19 May 2000).
15 Dr Milder and Mr W John Taylor expressed a contrary opinion but I found each of them an unsatisfactory witness. Dr Milder appeared to proceed on the assumption that the plaintiff did suffer brain damage and set out to justify that assumption, and he was also selective in his evidence relating to the MRI scan, referring in his report to parts of it which tended to support the diagnosis of brain injury, but ignoring those findings which were to the contrary: see transcript at 419-20.
16 I also considered a number of his answers lacked frankness e.g. on a number of occasions when asked questions by reference to probability or likelihood he gave answers such as "not necessarily", and I found his refusal to concede that detoxification would reduce the plaintiff's symptoms unconvincing.
17 I also reject the findings of Mr Taylor, psychologist, for the reasons given by Dr Roldan and Mr Rawling; and also because at about the same time as he was writing a report for the purpose of these proceedings i.e. report of 19 November 1998, saying that no improvement could be expected in the plaintiff's condition, he was writing another report (Ex. TQ) for the purposes of the plaintiff's defence of domestic violence proceedings brought by his wife saying that with counselling, his behaviour could be improved. I also accept Dr Roldan's criticism of Mr Taylor's use of the HRNEs scaling, a matter on which no explanation or response from Mr Taylor was attempted.
18 For these reasons I prefer to accept the opinions of Dr Walker (whom I found impressive and fair in his answers) and Dr Terenty whose evidence was not challenged, and I am not satisfied that the plaintiff suffered organic brain damage as a result of the accident, and another explanation must be found for his loss of memory, loss of cognition, loss of concentration, change of personality, Parkinsonian type symptoms in gait and movement, a position which ultimately Mr Evatt appeared to concede (transcript of 1 March 2002 at p 100).
19 There is one further finding that I should record. I find it more probable than not that the plaintiff was rendered unconscious and suffered some brain damage in a motorcycle accident in Macedonia some years earlier, and that as a result thereof he had some loss of memory (probably not great) before this accident. This finding is based on the histories recorded in the hospital notes, which could only have come from the plaintiff or his family and the fact that loss of consciousness (although not loss of memory) was admitted to Dr Milder at the special consultation arranged for this purpose and held on 24 September 2001 (see report of that date and see the last answer by plaintiff in cross-examination at T 422-7).
20 It is therefore necessary to consider the cause, extent and prognosis of these other symptoms referred to. This has not been made any easier by a number of inconsistencies in the evidence of the plaintiff and members of his immediate family and other unsatisfactory features, including what I consider is an inconsistency between the plaintiff's description of his physical capacity and that demonstrated in photographs of him taken on 9 September 2000 (Ex. Y4). There have also been a number of inconsistencies in the histories given by him to the various doctors which are summarised in Dr Roldan's report.
21 The plaintiff described himself as having constant pain of his lower back, which at times extends into his right leg and said that he has frontal headaches every day. He is depressed and claims a lack of concentration and memory, which matters were supported by his wife and a number of friends. However, from about 6 to 12 months after the accident until about a year ago he was taking an excessive number of prescription drugs prescribed by his general practitioner, Dr Oreb and by his psychiatrist, Dr Kecmanovic. In addition, he was also obtaining further prescriptions, particularly painkillers, from Dr Torodovic who was an acquaintance of his brother; and in that way he was taking drugs in excess of the safe or prescribed limit.
22 Apparently at times a heavy drinker prior to the accident, he was also for a time consuming large amounts of alcohol; and the excessive use of painkillers and sedatives together with the excessive use of alcohol, which I accept were caused by his pain and his depression, contributed to his loss of concentration, memory and such like. Indeed in 1999 he collapsed while waiting to see a doctor at Maroubra and was taken to Prince of Wales Hospital. He was seen both at Royal Prince Alfred Hospital Pain Management Clinic and at the Westmead Hospital Brain Injury Unit and both of these units advised him to undertake drug and alcohol counselling, and to cut down on the drugs he was taking.
23 Since then, that is about 3 years ago, he has stopped drinking alcohol and more recently Drs Oreb and Kecmanovic between them have reduced his drug intake so that he is now only taking Panadeine Forte, Voltaran and Stelazine. He claims that these drugs give him some pain relief, but it is only temporary. He said he spends most of his time either in bed or watching television. He does some walking, but it does not appear that he does the long walks which he has been advised to undertake as he claims that his back gets too sore.
24 The plaintiff said that before his accident he used to help with cleaning the house, shopping and painting at home whereas now he cannot do these things and at times he needs help from his wife to shower, dress, put on his shoes and socks and go to the toilet. She also massages his back although in view of his complaints of persistent severe pain, such massaging is of little benefit to him.
25 He agreed he can manage his money (T 316). He said that sometimes he is able to use public transport by himself, but not at other times and that he is able to bend over and squat provided he does it slowly as he could in September 2000 when he was photographed (Ex. Y4). He can stand up for an hour, sit for up to half an hour and can walk for up to 20 minutes. He denied that he is feeling better, more aware and awake since he stopped drinking alcohol and reduced his prescription drugs; in fact he claimed he is worse.
26 His wife said that she massages his back and legs, helps him with his bathing, toileting and dressing and gets his meals. After discharge from hospital he was bedridden for 3 months (T 366). She had always been a full time housewife in Australia. She denied her husband has become better or more alert since his drug intake was reduced. Ultimately she claimed that his mental condition had got worse than it was in November 1999, and that within 2 or 3 years they expect him to be in a wheelchair and that he expects a major operation (T 374-5), of which proposed operation there was no evidence.
27 His daughter, Dyana Arnesic, described the plaintiff's present condition as very weak, always unhappy, very scared, unable to sleep at night, unable to concentrate, unstable on his feet, uncontrollable and inappropriate behaviour which she described (T 431-2) although I note that the incidents of inappropriate behaviour were not referred to by any of the other witnesses including his wife, and were not apparently reported to any of the doctors or psychologists. She said he is not left alone, there is always someone with him, that he spends most of the time (i.e. 4 days a week) living at her place at Carlton except at weekends (T 433), a matter not referred to by his wife.
28 She said that when at her place he spends most of the time in bed although they take him on outings and to therapy, that his speech had been slurred and slow ever since the accident, he does not speak much nowadays and when he does it is quite often incomprehensible and they have to get him to repeat it. All his problems i.e. speech, concentration, forgetfulness have been present ever since the accident, but they are getting worse now. He is now spending longer and longer periods of time in bed and she is afraid that in the future he might become paralysed.
29 The plaintiff's other daughter, Vesna Trajkovska, also gave evidence of changes to her father's personality and physical movements since the accident. She said that every time she sees him he is very disorientated in time and place, and it is like he is losing his memory, he is physically weaker whenever she sees him and he seems drowsy. She said that he and her mother often come over to her sister's place and sometimes sleep overnight but usually go home. She also had noticed no improvement since he stopped drinking and reduced his drug intake. Neither physiotherapy nor hydrotherapy does him any good except provide temporary relief whilst actually undergoing the therapy.
30 I am satisfied that as a result of the accident the plaintiff suffered significant fractures to the lumbar spine which have permanently incapacitated him from working as a painter or in any other occupation involving bending, lifting or stretching. Moreover, because of his other problems which I shall refer to hereunder, his lack of clerical training and experience and his difficulties with English, he could not be trained for any form of lighter work and therefore must be regarded as permanently and totally incapacitated for employment. He is further disabled by the injury to his left foot, although compared with his back, this disability is not serious.
31 He claims he has continuing pain in his lumbar region and I accept that he does; although I am not satisfied that there is a physical basis for the degree of pain which he suffers, but it appears to be tied up with his psychological problems and drug addiction. Such pain is not effectively relieved, except on a temporary basis by the drugs (particularly Panadeine) which he continues to take or by the hydrotherapy.
32 I accept Dr Kecmanovic's opinion that he is suffering from a Mixed Anxiety and Depressive Syndrome, or as Dr Maguire describes it, an Adjustment Disorder with Depressed Mood (which I assume is very similar) and Dr Walker also considered there was significant depression and that the symptoms of depression, change of personality, loss of memory and cognition are due to this and to his drug addiction. Dr Hordern also diagnosed, as well as a brain injury, a Post-Traumatic Stress Disorder.
33 He is now taking less drugs and although his evidence was that he was no better, he told Dr Perl that since he reduced his drug intake he was feeling better; and I believe this is likely to be so. Dr Perl in her report of 24 July 2001 (p 3 para 4) noted an improvement in his intellectual functioning since his reduction in drug intake. However, I believe his anxiety and depression with the associated symptoms of change of personality, loss of memory and cognition will continue, although to a lesser degree than previously. I also accept Dr Walker's evidence that his "Parkinsonian symptoms" are a result of the drug addiction and he should recover from them in time provided he remains free of excessive drug use.
34 The loss of concentration and memory, loss of cognition, slurred speech, frontal headaches, depression, anxiety and Parkinsonian symptoms in his gait and manner result from a combination of a Post-Traumatic Stress Disorder and the consequences of his drug and alcohol addictions. I am satisfied he has not drunk alcohol for some 3 years and he has at least made an effort (in conjunction with his doctors) to reduce his intake of prescription drugs.
35 I am satisfied that although there was a period when he could not be left unsupervised and was unable to travel alone, those days are now past and that he can and does travel alone on public transport to attend hydrotherapy at Brighton-le-Sands and to visit his daughter (now at Rockdale) and does not need continual supervision provided his wife (or someone else) supervises his drug intake. He could if he wished, help with some of the household chores though not with the heavier tasks and, as he and his wife live in a unit, and did before the accident, no question of gardening arises.
36 Mr King SC (for the first defendant) has drawn my attention to State Rail Authority of NSW v Weigold (1991) 25 NSWLR 500 and submitted that as the drug and alcohol addiction was voluntary and self-induced, the defendants are not responsible for it or its consequences, but I consider that case distinguishable as it involved criminal behaviour which had resulted in conviction and imprisonment, and thus issues of public policy were involved, whereas here it was the pain which the plaintiff was suffering which caused him to take the drugs and they were prescribed by medical practitioners: cf Grey v Simpson (unreported - Court of Appeal - 3 April 1978). True it is, he then obtained additional supplies by visiting Dr Todorovic as well, but he believed at the time that he was relieving the pain, and that pain and the boredom were associated with his inability to work, which also caused him to increase his already not unsubstantial use of alcohol. In my view all these consequences are causally related to the defendant's negligence and reasonably foreseeable.
37 It was also submitted that he has failed to mitigate his loss by the continued use of the prescription drugs in excessive amounts and his failure to attend for further treatment and assessments, but there were undoubtedly language difficulties and the memorandum from Royal Prince Alfred Hospital Pain Management Clinic to Dr Oreb dated 15 November 1999 (see Ex. TF) suggests that the plaintiff was to wait until he heard from them. It is not clear if those further treatments and assessments would have made any significant difference, and he has in any event reduced his drug intake and ceased drinking alcohol. In these circumstances I am not satisfied he has failed to mitigate loss.