Margaret Ginich v Tony Johnston [1986] ACTSC 32 (12 May 1986)

SUPREME COURT OF THE ACT

MARGARET GINICH v. TONY JOHNSTON
S.C. No. 1716 of 1979
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
GALLOP J.(1)

CATCHWORDS

Damages - personal injuries - general damages and loss of earning capacity - gratuitous domestic services - no question of principle involved.

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 15 ALR 387; 139 CLR 161.

HEARING

CANBERRA
12:5:1986

ORDER

There be judgment for the plaintiff in the sum of $42,929.31.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 26 June 1978. The trial was limited to the assessment of damages.

2. The plaintiff was born on 25 February 1954. She is a married woman with four children aged 11, 8, 5 and 16 months. At the date of the accident she had two children, the second child being only a few months old, born on 15 February 1978.

3. The short description of the injuries sustained by the plaintiff is a whiplash injury of the neck. She was driving her motor vehicle in Hindmarsh Drive when she was hit from behind by another vehicle. She remembers that she was "all a dither" and was holding her head and neck. She went to the Woden Valley Hospital where X-rays were taken and she was allowed home about three hours later wearing a cervical collar. She tried to breast feed her baby but found that she was not able to do so. She spent a very uncomfortable weekend. She was stiff, with bruising across her chest and mostly just lay on the floor.

4. She came under the care of Dr R.L.G. Newcombe, neurosurgeon, and remained under his care for a number of years. At the time of the accident she was on maternity leave from her employment as a nurses' aide at the Woden Valley Hospital. She was due to return to work at the expiration of her leave on 25 December 1978 but because of the injuries sustained she did not in fact return to work until 22 January 1979. She was placed on light duties which involved the care of new born babies in Intensive Care. When she resumed work she was suffering considerable neck pain and complained to Dr Newcombe that she could not lift her four-year old child without aggravation of pain, or bath her baby. Other domestic tasks such as ironing clothes and hanging out washing were difficult.

5. She was suffering some variation in the level of pain but was never completely pain free. She was scared that she would drop the babies in the nursery, but she learned to lift with her left hand. Her grip in the right arm was weak. She also had trouble holding slippery things. She continued at work until 29 August 1980. She was working nightshift in the same way as she had been before the accident. She would work four days on and four days off and her hours of duty were from 11.00 pm until 7.30 am. She ceased work on 29 August 1980 because she was pregnant and was having some difficulties with the pregnancy.

6. Dr Newcombe was not called as a witness, but it appears from the evidence of his reports that towards the end of 1978 and early 1979 when the plaintiff returned to work, there had been considerable improvement in her condition. She returned to work by way of a trial at Dr Newcombe's suggestion. He thought that, as on X-ray there had been no definite bone injury, her whiplash symptoms would gradually subside over the next six months. X-rays taken on 17 April 1979 showed no fracture or other abnormality and the disc spaces were intact. Dr Newcombe continued with conservative care of the plaintiff.

7. In July 1980 Dr Newcombe reported that the plaintiff was able to manage all the work in the premature nursery except heavy lifting of wash baskets etc. She had a full range of neck movement. He saw her again on 5 September 1980. She was then complaining of numbness in the left hand, especially the ulnar two fingers, cramps in the neck and cramps and pain in the calves. There were occasional headaches. Dr Newcombe still expected her neck pain and numbness in the hand to improve. He did not recommend surgery.

8. The plaintiff had her third child on 23 November 1980. On 24 February 1981 she complained to Dr Newcombe of headaches every couple of weeks, fairly constant neck pain and weakness of the right arm. Dr Newcombe could find not much in the way of neck restriction. There was some sensory loss in the lateral aspect of the forearm and thumb but no definite reflex change. She was still complaining of weakness in the right hand and loss of finger movements in May 1981. She had aching of the right forearm and occipital headaches. She resigned from nursing in 1981 because of neck pain. Writing and typing were also restricted and she was getting headaches. Nevertheless Dr Newcombe thought in May 1981 that she was managing quite well at home and that the continuing symptoms were not severe enough to warrant myelography or operation at that time.

9. He reviewed her again on 24 November 1981 and 9 March 1982. He was then of the opinion that her injury had resulted in intervertebral disc change at three levels, C4/5 to C6/7 but especially at C5/6 level. Conservative treatment was continued and he did not recommend that she return to nursing. By May 1982 Dr Newcombe expressed the opinion that she would require surgery for her disc injury, that it was very likely in next five years, and he would still not recommend return to nursing. He reviewed her again in December 1982. He thought her condition was stable and unlikely to change and no further medical treatment was planned. He did not think she would become fit to return to nursing. In his last report of 3 March 1986 he said that her general condition was stable and that no further medical care was arranged.

10. She had her fourth child on 16 January 1985. She does not intend to have any more children. After the plaintiff ceased nursing in 1981 she decided that she would take on minding children. She did that from 1982 to the date of trial. She does not propose to have any operation on her neck. She feels that she can cope fairly well and is apprehensive about the success of any such operation based upon her nursing experience and the experiences of some friends. She said in cross-examination that, even if she had not been incapacitated by her injuries in 1981 she would not have expected to go back to work because of her pregnancy and the birth of her child until the end of the school holidays in January 1982. The same position would have applied in relation to the birth of her fourth child in January 1985. She would have taken the whole year of 1985 off and probably would have returned to work in February 1986.

11. There is a medical issue about the plaintiff's residual disabilities. The plaintiff claimed to be still suffering some headaches, neck and right arm pain due to the 1978 accident. Those symptoms are not constant and they fluctuate. She was examined for medico-legal purposes by Dr Arnold Mann, consultant surgeon, on 23 April 1982. He expressed the opinion that it was too early to make an assessment of residual disabilities because he thought it was very likely that she would come to surgery. He noted quite a marked disability caused by residual pain and stiffness of the neck, headaches and weakness of the right arm. He reviewed her again on 28 April 1986. He was of the opinion that she would have to have surgery and that she could try nursing but he would be surprised if she succeeded because it would probably be beyond her.

12. Dr Edwin J. Cassar, consultant physician, examined the plaintiff on behalf of the defendant on 30 September 1980, February 1983 and July 1984. In his report of 13 October 1980 Dr Cassar said that he could not support any suggestion that the plaintiff was not employable at that time or that her domestic and recreational life had been altered as a result of the injuries sustained in the accident. He thought that there had been complete resolution of her symptoms at that time and that there was no indication of permanent neck damage and specifically no degenerative changes in bones, discs or nerve root outlets.

13. In February 1983 he noted on physical examination that she had a normal extent of movement in the cervical spine, no clinical evidence of cervical nerve root irritation and specifically no localisation of the problems in the C5/6 level. He agreed that she had suffered a whiplash injury with disc compression degeneration at C5/6, occipital bruising, right shoulder bruising, aggravation of previous migraine and shock. He concluded that she had a permanent partial disability of C5/6 disc degeneration resulting in periodic aching and weakness of the right arm but not requiring any operation and not of a severity to be interfering with normal domestic, recreational and working needs. In his last report of 10 July 1984 he expressed the same opinion.

14. Dr Cassar was called to give evidence on behalf of the defendant. He adhered to his opinion expressed in his reports that having carried out examinations on the plaintiff he was of the opinion that any problems that she now has are not of a severe nature, nor are they restricting in terms of her domestic or working activities. He was referred to her period of absences due to migraine headaches prior to the accident. The evidence establishes that she had 16 1/2 days off out of 182 working days in 1975, 28 1/2 days off in 1976, and 22 1/2 days off in 1977. He said that those absences supported his view that she had significant and disabling migraine prior to the accident and that the majority of her problems after the accident were of the same nature. I accept Dr Cassar's evidence and proceed to the assessment of damages accordingly.

15. She was also reviewed for medico-legal purposes by Dr A.G. Cumpston, who described himself as an occupational health physician, on 21 April 1986. He did not examine the plaintiff but had a consultation with her and reviewed the medical reports provided by her solicitors. He expressed the opinion that she was not fit to return to nursing or any alternative work involving repetitive use of the right arm. There was other evidence that prior to the accident the plaintiff was a good, capable nurses' aide who enjoyed that sort of work. After she resumed work her capacity was less, she always looked tired and she had to compensate for the weakness in the right arm.

16. The subject accident happened a long time ago. Dr Newcombe, who was the plaintiff's treating doctor, thought that in December 1982 she was stable and unlikely to change and no further medical treatment was planned. At that stage she was coping fairly well with her domestic duties and minding children. Dr Cassar had reported that even in October 1980 she was not incapacitated from the 1978 accident. However, the plaintiff claimed in evidence that over the last two years her condition has deteriorated. That may well be so, but I am not prepared to conclude in the light of the medical evidence that any deterioration is due to the 1978 accident.

17. The plaintiff is not totally incapacitated for work. She has a substantial capacity for work, perhaps not in general nursing, but she is obviously able to perform many nursing duties. For instance, she would be able to do most nursing duties involved in the nursing of children and babies. She has some secretarial skills and some experience in this area. She has typing and shorthand qualifications and the capacity to work as a doctor's receptionist. There was evidence from a personnel consultant that vacancies in this type of employment occur regularly in the Australian Capital Territory.

18. It must be borne in mind that the plaintiff is a married woman with four children and her youngest child is only 16 months old. My impression is that the reason that she is no longer working as a nurse is because of the demands of her family and the fact that the child minding which she is doing is a suitable alternative activity in all the circumstances. It brings in the extra money which the family requires. It is further my impression that if it was necessary for the plaintiff to engage in more extensive work and longer hours she would be able to summon the motivation to do so and would have the physical capacity to do so. That is not to say that she does not have periods of incapacity due to headaches.

19. For pain and suffering, inconvenience, and loss of enjoyment of life arising from the subject accident, I provisionally assess the sum of $20,000.

20. For the purposes of assessing the plaintiff's past economic loss, the net salary payable to a nurses' aide from time to time were agreed figures. The plaintiff was on maternity leave at the time of the accident until September 1978. Because of her injuries she did not return to work until 22 January 1979. The agreed loss of wages for that period is 16 weeks at $121.79 per week net. The amount involved is $1,948. She then continued at work with some days off, which approximated four weeks, and the amount involved at the same salary rate up to May 1980 is $510. She was then on maternity leave again until April 1981, but she did not return to work then because she did not feel that she could perform nursing duties. She commenced the child minding on or about 1 July 1981. The amount claimed is three months at an annual salary of $8,663. Accordingly I allow the sum of $2,165.

21. From 1 July 1981 to 30 June 1982 the plaintiff would have earned, as a nurses' aide, the sum of $13,062 net. During that period, however, she had an income of $35-40 per week from child minding and the amount claimed is $11,362 for the period. For the period 1 July 1982 to 3 June 1983, the plaintiff would have earned, as a nurses' aide, the sum of $12,053 net. During this period also she was engaged in child minding and the amount claimed is $10,853 for the period. As indicated earlier, I think it is reasonable in all the circumstances to allow a loss of earnings up to the end of 1982. Adopting the above figure I allow for the period from 1 July to 31 December 1982, the sum of $5,000. The above figures add up to $20,985. Allowing for past vicissitudes, I round that figure off to $20,000.

22. With regard to loss of earning capacity, I am satisfied on the evidence that the plaintiff enjoyed nursing and had some sort of a vague desire to do her general nursing certificate and become a registered nurse. I do not accept, however, that the accident has thwarted that desire. She has been overcome by the natural increase in her family. For the reasons which I have mentioned earlier, it is unrealistic to contemplate that a married woman with four children, the youngest of which is only 16 months old, would be able to return to nursing to do night duty four nights on and four nights off for a considerable time. She has roughly the same earning capacity now as she had prior to the accident, although that capacity might have to be redirected into receptionist nurse duties rather than general nursing duties.

23. I am of the view that it is not reasonable to award any amount for loss of earning capacity. I note that there was an agreed figure of $266.81 net as the present salary of a nurses' aide and that the plaintiff said in evidence that she is earning in the order of $75 per week, tax free, in minding children for a substantial part of the year.

24. The plaintiff has also claimed some amount for voluntary domestic services provided by her husband. The claim is brought pursuant to the principles laid down by the High Court in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 15 ALR 387, 139 CLR 161. In addition the plaintiff incurred expense in having her ironing done, the amount claimed was $1,319, and paid housekeeping expenses, the amount claimed is $460.31. I allow those amounts as expenses reasonably incurred as a result of the injury sustained.

25. The plaintiff's evidence was that in the immediate post-accident period her husband had to do all the housework and help to care for the four months old baby. He kept that up for a couple of months. She said that for the next couple of years he would assist in domestic duties perhaps half an hour to an hour at night and between two and three hours at the weekend, approximating five hours per week.

26. The plaintiff's husband also gave evidence. He was asked about the things which he had been called upon to do as a result of his wife's injuries. He said he would help out if it was needed.

27. I think it is reasonable to make some allowance for the performance of these additional duties by the plaintiff's husband for about six months following the accident. I make that allowance because, following the dicta of Gibbs J., as he then was, in Griffiths v. Kerkemeyer, supra, I think it was reasonably necessary to provide the services and it would be reasonably necessary to do so at a cost. The fulfilment of the need was likely to be productive of financial loss and it is therefore appropriate to compensate the plaintiff for those gratuitous services. Five hours per week for six months at $5 per hour is $650. I allow that sum.

28. After the plaintiff returned to work she had other domestic assistance which I have allowed for in the above figures for ironing and housekeeping and I think that so far as the future is concerned, her husband may have to perform some duties when she gets severe headaches, but that would be no more than a normal sharing of the domestic burdens.

29. There was also a claim for pharmaceutical expenses. The evidence in this respect is quite minimal. The plaintiff said that she spent about $50 per annum on Codral, $52 per annum for Aspirin and $10 per annum for Digesics. I allow the sum of $500 for pharmaceutical expenses but do not consider it reasonable that the defendant have to pay for any future pharmaceutical expenses.

30. My provisional assessments therefore are:

General damages $20,000.00

Past economic loss 20,000.00
Ironing 1,319.00
Housekeeping 460.31
Griffiths v. Kerkemeyer component 650.00
Pharmaceutical expenses 500.00
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Total $42,929.31
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31. I confirm my provisional assessments. There will be judgment for the plaintiff in the sum of $42,929.31.

32. I shall hear counsel on the question of costs.