Ilo Dojcinoski v Trajce Aleksovski

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop AsJ
• Judgment Date: 18 November 2015
• Date: 18 November 2015
• Docket Number: File Number: SC 43 of 2013

[2015] ACTSC 357

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop AsJ

File Number: SC 43 of 2013

Ilo Dojcinoski

(Plaintiff)

and

Trajce Aleksovski

(First Defendant)

and

Insurance Australia Limited trading as NRMA Insurance

(Second Defendant)

Representation:

Counsel

Mr A Bartley SC and Mr F Tuscano (Plaintiff)

Mr J Pappas (First and Second Defendants)

Cases Cited:

Pangallo v Smith [2015] ACTSC 313

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 45

Court Procedures Rules 2006 (ACT)

PERSONAL INJURY — Injury sustained as front seat passenger in single motor vehicle accident — liability admitted — assessment of damages — self-employed painter — reliance on contemporaneous records of treating general practitioner and treating psychologist — no issue of principle

Decision:

See [181]

Introduction

1 The plaintiff was involved in a motor vehicle accident that occurred on Kuringa Drive in Fraser in the Australian Capital Territory on 13 February 2010 when the car driven by the first defendant ran off the road and hit a tree. Liability was admitted and the hearing involved an assessment of damages.

The plaintiff prior to the accident

2 The plaintiff was born in 1979 and was 35 years old at the time of the hearing. He was born in Canberra. Both parents had migrated from Macedonia. He lived with his family in Kaleen. He went to primary and secondary schools up to year 10 in Kaleen. He attended Dickson College but left halfway through year 12.

3 After he left school he was employed as a painter by Canberra Homes. He had obtained that employment through a friend of his brother. He was trained on-the-job. The work that he did involved the painting of new homes. He stayed in that employment for around 12 months. He next worked for Kenro Services doing painting. That involved repainting houses and painting of extensions to houses. He also worked for other contract painters at that time.

4 In 1998 he was involved in a car accident in Braddon or Ainslie.

5 In order to save money he also worked as a cleaner at night for an entity referred to as Rose Cleaning. He worked there for three to six months. While working for Rose Cleaning he suffered an injury to his right knee and back. He received workers' compensation for the period that he was off work. He also worked as a security officer for Group 4 for a period of two to three years doing security screening at the Canberra Airport. In 1999 he had another car accident in Braddon where a police car side swiped the vehicle that he was driving.

6 In June 1999 his right knee was injured in a shop when a picture frame fell off the rack and onto his knee. He was off work for around six months. He then worked for Wai Wurri Furniture doing light labouring work. He also worked for a Mr Joe Gilmeyer who was also a painting contractor. He was next employed by Varga's Painting. That involved painting new homes and a few repainting jobs. He returned to work at Wai Wurri Furniture because his brother-in-law worked in the business and there was an opportunity for the plaintiff to be employed there.

7 In 2004, when he was about 25 years old, he travelled to Macedonia and lived there for around 18 months. He met his wife, Sanja, during this time. They were married in February 2006 and then had a wedding in May 2006.

8 In July 2006 the plaintiff and his wife returned to Australia and the plaintiff obtained a job at CC Wholesale through a friend. He was employed as a storeman doing heavy packing work. While working there he suffered an injury to his shoulder when a barrel of cooking oil fell from the shelf and he tried to grab it. He had a few months off work. He received workers' compensation payments and a dispute about his workers' compensation entitlements led to a settlement as part of which he received $10,000. He next worked for a business known as RAZ Painting Contractors owned by a friend, Chris Ristevski. The work in that business involved painting new homes, apartments and some commercial buildings.

9 In March 2007 the plaintiff established a business called Superb Painting Services. He was, at that stage, living at his parents' house in Kaleen. He promoted his business by handing out business cards and advertising through notices and flyers. He had the necessary equipment to undertake painting work including a large trailer with everything inside. He worked five and sometimes six days per week.

10 In January 2010 he set up a business called Yellow Car Detailing. That was intended to be a business that would permit his wife to earn some income detailing cars which were picked up from and delivered back to a Braddon car yard. However his wife only worked on six cars and then did not pursue that business further.

11 In February 2010 he commenced work for GPDS No 1 Pty Ltd, an operating company of Glendening Painting & Decorating Services (Aust) Pty Ltd which was a painting company of some size employing, at that stage, around 40 painters. He had been working there for a week when he had the accident the subject of these proceedings.

Accident

12 The accident occurred on 13 February 2010, a Saturday. The plaintiff had been at a pub at Eaglehawk, just outside Canberra, with two friends, Steve Stojkoski and the first defendant who was referred to by the plaintiff as Tony. The first defendant was driving the vehicle. It was raining. The vehicle was travelling along Kuringa Drive shortly after 8.00 pm when, as a result of braking and swerving to avoid a kangaroo, the vehicle ran off the road and hit a tree. The plaintiff was a front seat passenger and recalled sitting back and relaxing when he heard someone yell immediately prior to the impact. He was thrown around a bit and hit his head on something. He recalled smoke from somewhere in the car and being unable to get out. He was helped out. The fire brigade came first and police and ambulance also attended. He was examined by an ambulance officer at the scene. No injuries were reported by any occupants of the vehicle to any of the ambulance and fire brigade personnel who attended.

History following accident

13 The plaintiff was driven home by the police who attended the scene of the accident. The next day, Sunday, he said that he had a sore neck, shoulders, chest, head and right knee and he took Panadol or some other painkiller. On the Monday he attended his general practitioner Dr George Guirguis. Dr Guirguis' notes record that the plaintiff complained that on the Sunday he suffered from ‘sore and stiff neck and pain to the R side of the lower back’. At the time of the consultation he complained that the ‘lower back pain is worse and also neck movements are painful’. The doctor examined him and recorded: ‘diffusely tender over cervical spine and lumbosacral spine (esp on the R) .. restricted mobility of the cervical spine and the lumbosacral spine.’ He recommended physiotherapy.

14 The information provided by the plaintiff in a Motor Accident Medical Report on 3 March 2010 described his injuries as ‘pain in neck + back, headaches, right knee pain inability to work as a painter’.

15 The plaintiff got assistance from a physiotherapist that was paid for by the second defendant. The physiotherapist focused on his neck, back and right knee and also gave him exercises to perform at home.

16 Notwithstanding the accident and the information in the Motor Accident Medical Report referred to above, the plaintiff continued to do some painting work. He did two small painting jobs in March 2010 and painted a new house in April 2010. In May 2010 he did another medium-size job involving painting parts of a house in Bruce.

17 The plaintiff's oral evidence about what occurred after that was rather vague and elicited at a high level of generality. The manner in which the oral evidence was led and the structure of the documentary material that was tendered were such as to increase the difficulty of recording any coherent narrative of the plaintiff's circumstances after the accident.

18 Although he said that he resumed some work in July 2010 that appears to be inconsistent with the documentary material which indicates that he did work up until May 2010 and then only recommenced in June 2011.

19 The plaintiff received assistance with his rehabilitation from the Commonwealth Rehabilitation Service and an organisation paid for by that service called Accelr8. He also saw a psychologist, Todd Lattimer, and Dr Guirguis, his general practitioner. He saw a consultant neurologist, Dr Ram Malhotra.

20 The plaintiff gave evidence that when he attempted to work for a company known as AMK he suffered pain in his neck, shoulders and back and could not keep up with the other painters. He only worked for the company for a few days. He ceased because there were some complaints about his work from the other workers and Tony Gavron who was identified in the evidence as the company owner. The documentary material indicates that he did two days' work for AMK in July 2011. He also gave evidence that he worked for a week for Monarch Building Solutions. The documentary evidence indicated that he worked for that entity in September 2014 and did not provide a reason for not continuing with that employment. In evidence, the plaintiff said that he had difficulty keeping up and other workers complained to the supervisor on the site. The plaintiff did state to his psychologist, Mr Lattimer, that he had a work trial for a week in about September 2014 during which the boss accused him of ‘standing around’ and not doing any work. Those notes recorded that the plaintiff had ‘[d]ecided back was causing too many issues and didn't take job’. His evidence was that since then he has only worked for himself.

21 He gave oral evidence that:

• (a) he has not been required to take Panadeine Forte for a few years;

• (b) he has been on antidepressants for two or...