Eluned Menna Haddon v Elizabeth Anne O'Reilly [1986] ACTSC 38 (29 May 1986)

SUPREME COURT OF THE ACT

ELUNED MENNA HADDON v. ELIZABETH ANNE O'REILLY
S.C. No. 1733 of 1982
Damages

COURT

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

CATCHWORDS

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

HEARING

CANBERRA
29:5:1986

ORDER

There be judgment for the plaintiff in the sum of $247,490.81.

Liberty to apply in respect of arithmetical errors or the like within 7 days.

DECISION

This matter involves an assessment of damages only, interlocutory judgment having been obtained against the defendant on 20 December, 1983.

2. The plaintiff, then aged 41 years, was injured in a motor vehicle accident on Friday, 2 April, 1982. Her Honda sedan was struck on the right side by the defendant's vehicle, causing her to strike her head against the inside of her car. She suffered bruising to the right side of her head and body generally. There was a small laceration to her right wrist.

3. She was taken to the Royal Canberra Hospital for examination and observation, where she was discharged after approximately one hour. No X-rays were taken.

4. The following day, she experienced headaches and nausea although these symptoms improved on the second day. However, on the third day, the nausea, vomitting, giddiness, and right-sided headache became worse. Having attempted to return to work the following Monday morning, she was sent home as her condition was progressively worsening during the course of the day.

5. Her symptoms improved over the following three weeks, when she again attempted to return to her work at the Australian National University Pre-School and Child Care Centre.

6. The plaintiff first commenced working at the Centre in March, 1973. She had been born at Cricklewood, London, U.K. on 9 January, 1941. She qualified as a State registered nurse in April, 1962 and worked for various hospitals in England from that date until her emigration to Australia in 1970. On her arrival in Australia, she did locum and agency nursing until late 1972, before working in a geriatric hospital. In March, 1973, she commenced working at the Australian National University Pre-School and Child Care Centre, where she continued to work until September, 1977. At that time she was having some difficulty with her back and underwent a spinal fusion in early 1978. She was then off work for some 18 months following that operation, before returning to work in 1979. She returned to the Centre on a part-time basis, though later in that year returned to full-time employment. The plaintiff had then worked full-time for some two years prior to the motor vehicle accident in April, 1982. Her work there was as a registered nurse in charge of the pre-school section, where she had the care of ten children aged between 2 and 3.

7. The plaintiff's symptoms having eased after her three weeks recuperation following the accident, she returned to her work at the Centre only to find that she was unable to cope with her duties. The exertion involved in lifting the children and working with them caused her unbearable neck and shoulder pain.

8. She did not then go back to work until September, 1982. This was the school holiday period and, therefore involved a lower level of work. Yet the plaintiff again was forced to return home after only 3 or 4 days, by reason of the pain in her neck and right arm. In the following months, the pain only continued to grow worse. The pain in her neck and shoulder, until then aggravated only by physical effort, was not now even relieved through rest.

9. Josephine Hall, the Director of the A.N.U. Pre-School and Child Care Centre, gave evidence that the plaintiff had, prior to the accident, coped very well with her duties, and was a very popular employee and a very good worker. She stated that following the accident the plaintiff was very strained, very pale, and not well at all.

10. In May, 1983, the plaintiff was referred to Dr. Alistair Robson, a neurosurgeon, who diagnosed a disc lesion. The plaintiff then underwent a discogram and, subsequently, an operation in August, 1983, at three levels in the cervical spine. This operation was to endeavour to produce a fusion at the levels demonstrated to be imperfect in the discogram. She was in hospital for five days following this operation and, although she continued to suffer pain in her neck, gave evidence that the pain in her arm was thereby reduced. Following the operation, she also described increasing pain in the leg and lower back radiating to the right hip.

11. Dr. Danta had recommended physiotherapy treatment for the plaintiff, which she had had regularly during the year preceding her fusion operation. She has not had physiotherapy since that operation. In May, 1985, she had taken a touring holiday by motor vehicle to Victoria with her husband and has, since that time, found her neck very troublesome. She stated that there had been a worsening of her condition following that holiday than had been the case in early 1984.

12. The plaintiff gave evidence that, following the operation, she felt that it was unlikely that she would be able to lift, carry, or do physically demanding jobs in the future. She felt, however, that she could possibly retrain as a medical receptionist, given her background as a trained nurse. In February, 1984, she enrolled in an 18 week receptionist course at Canberra Technical College, Reid. However, after only six weeks of the course, she found herself unable to cope with the several hours of typing required each day and the necessity to carry heavy books.

13. Shortly thereafter, the plaintiff's general practitioner, Dr. Roantree, offered her a position as a part-time receptionist at his surgery. However, after only a week, working about four hours a day, she found that she was unable to cope with the clerical work and filing. Dr. Roantree gave evidence that "(s)he managed to stay there for three afternoons, but was almost completely incapacitated following those periods of work . . . ".

14. The plaintiff has not worked since, nor has she ever felt capable of going back to any kind of work. She stated in evidence that she still finds that concentrated physical effort leaves her with pain in the neck and lower back, a level of pain which she states to be so severe as to prevent her working.

15. This evidence is supported by medical evidence before me. In a medical report of Dr. Gytis Danta, a neurologist, of 8 July, 1985, he states: "I don't really feel that she'll ever be able to return to the workforce . . . (although) (t)heoretically it should be possible for her to hold down a job consisting of light and variable duties." Dr. Roantree, in his medical report of 8 July, 1985, states: "(h)er condition totally and permanently incapacitates her for her former profession of nursing, and results in her incapacity for any full-time sedentary occupation. . . . (h)er physical incapacity is unlikely to improve." (Obvious errors have been corrected).

16. Dr. John Segelov in his report of 16 July, 1984, states that "I regard this patient as permanently unfit for heavy lifting or working with objects above her head, and feel this would disqualify her indefinitely from her previous employment as a registered nurse." Further, in his medical report of 29 July, 1985, he states: "This patient remains permanently unfit for her previous nursing duties. She is unfit for secretarial work even on a part-time basis because of the neck flexion required. She is similarly unfit for clerical or process work, and would have to be regarded as permanently unfit for any occupation requiring prolonged sitting or standing . . . She is unfit for bending, lifting, or reaching above head height."

17. Dr. Robson and Dr. Tony Lee, a consultant psychiatrist, have been more cautious in their assessment of her capacity for work. Dr. Robson, in his report of 24 June, 1985, states that "(t)here is no conceivable way in which I can apply some measure to her disability . . . ". Dr. Lee, in his report of 27 August, 1985 states that "I do not know whether she is capable of doing some work or will become capable of doing so in the future." However, he does go on to say that "(i)f she does do some work, the type of work that she would be capable of doing would possibly involve light duties without much physical demand or stress."

18. Dr. Brook in his report of 24 July, 1985, states that "(h)aving regard to the restrictions one would need to place on her employment and her lack of experience and qualifications, employment prospects would seem very poor."

19. The defendant has argued that the plaintiff's future employment prospects were already severely hampered in view of her past history of lumbar back problems. The defendant stresses the plaintiff's evidence that she had, even prior to the accident, already limited herself in the type of employment that she considered herself able to do.

20. In her evidence, she stated that, even prior to the accident, she would have back trouble if she overdid it, and took care not to overstrain herself. She had led a very normal life and her back had never caused her to take time off work. However, even prior to the accident she had already given up the idea of working as a nurse in a ward routine in a hospital, for her back trouble had, even then, limited her to work which did not require a lot of physical lifting or bending. Since the accident, the pain level in her back has been more apparent, there being pain in the lower part of her back which had not been present before.

21. The plaintiff gave evidence that she has recently applied to various hospitals seeking clinical positions; the sort of work that she considers that she could still do "up to a point". She stated that this sort of job is one which would not aggravate the problems that she has in her neck and back. However, following these applications, she had been told that because she is so out of date she would need to be retrained to work in any of the hospitals in Canberra. Because of her back and neck history, the hospitals will not retrain her. Essentially, therefore, that work is really not available to her.

22. The position, in fact, is that prior to the accident the plaintiff was working in employment that catered for her back condition, which was obviously not causing her any substantial discomfort. The accident has closed that avenue to her.

23. The defendant has also sought to suggest that, insofar as the plaintiff's back condition gradually worsened in the period following the accident, that progression was merely a progression of the underlying problem which had previously existed in her back. The defendant finds support for this submission in the evidence of Dr. Andrews, who had stated in his medical report of 17 February, 1983, referring to the 1978 fusion operation, that that condition "has not been aggravated by the accident." In evidence before me, Dr. Andrews affirmed that view, suggesting her post-1982 accident condition to be "presumably . . . (the) natural progression of degeneration that was taking place there previously." Moreover, Dr. Roantree, stated that, the severity of her back condition having gradually onset over the last 2-3 years, it was certainly a possibility that her present condition might have occurred even without the superimposition of the motor vehicle accident. The plaintiff had twice seen him prior to the accident with back trouble. On the probabilities, however, I am of the opinion that the defendant is liable for the consequences of her present condition.

24. The plaintiff has also given evidence of a deterioration in her relationship with her husband. The plaintiff married in 1960 at the age of 20. Her husband is an engineer. She has four children, two natural children and two adopted children. She gave evidence that her discomfort has greatly disrupted her relations with her family. A previously good relationship with her husband had now become "very traumatic at times".

25. She also gave evidence that she is uncomfortable in her awareness of the scars which she bears on her neck and hip and also of the fact that one hip is now higher than the other. Previously very much an outdoor family, she now finds car journeys difficult and finds problems in sitting or standing for any length of time. She continues to swim, as she finds that it offers some relief from the pain that she suffers. She describes the sexual side of her marriage as now being "really not very good." She continues to take an antidepressant, Tolvon, to assist her to sleep and is committed to spending approximately $11.00 per fortnight on these tablets. The plaintiff also takes Dolobid, which are anti-inflammatory tablets. She takes at least two and as many as four such tablets per day, spending approximately $24.00 per month on these tablets.

26. Since the accident, the plaintiff has taken up piano playing and, ultimately, hopes to advance herself such that she may teach the piano. However, she finds that she must break up her practice sessions, as her neck becomes extremely painful if she practices for more than 3/4 hour at a time. Although her enthusiasm to make some use of her interest in the piano is to her credit, the prospects of her deriving future income from that activity are remote, particularly because of neck pain. I do not consider that prospect in my assessment of loss.

27. The plaintiff has suffered since the accident a great deal of disability and neck pain, which has led to a great reduction in the quality of her life - social, interpersonal, and recreational. She has had difficulty with sleeping and has a continuing need for medication. She has lost confidence in herself and especially in her ability to be useful. Her inability to engage in even light activities, such as a course of study, has resulted in despondency and low self esteem which, in itself, may well be contributing to her overall incapacity and inability to adjust. This is a view which Dr. Lee has suggested in his medical report of 12 June, 1985 and one which I accept.

28. Dr. Roantree in his report of 8 July, 1985, states that "her physical incapacity is unlikely to improve."

29. For general damages, to reflect the above, and in particular the past and continuing pain, a figure of $40,000 would be appropriate. In this case, the plaintiff's pain endures. I apportion $15,000 of the figure for general damages to past pain and suffering and loss of amenities and I award interest at 14%, reduced by half, on that figure for the period from accident to judgement, say $4,375.

30. The parties have agreed on out-of-pocket expenses in the sum of $6,990.81, a wage loss to date of $45,000, and a net weekly income payable in the position that she would have been in but for the accident of $248.00. By way of interest on past wage loss, I think 14% is an appropriate rate of interest, and I assess this component by calculating 7% of the agreed past wage loss from the date of the accident to judgement. This comes to $13,125.

31. For loss of earning capacity in the future, applying the 3% table for 16 years (the period till the plaintiff is aged 60), to the agreed nett weekly income of $248, results in a figure of $164,920. I think a 20% discount for contingencies and the vicissitudes of life is appropriate in this case, having regard to the evidence of the plaintiff's pre-accident condition. This results in an amount of $131,036, which I round of to $130,000.

32. The plaintiff's life expectancy is 29 years. There are a number of contingencies covering future pharmaceutical and treatment expenses. I assess $8,000 as an appropriate figure for this aspect of the plaintiff's damage.

33. Summarising the above components:

General damages $ 40,000.00

Interest on past general
damages $ 4,375.00
Agreed past wage loss $ 45,000.00
Interest on past wage loss $ 13,125.00
Agreed out-of-pocket expenses $ 6,990.81
Future pharmaceutical and
treatment expenses $ 8,000.00
Future loss of earning
capacity $ 130,000.00

$ 247,490.81

34. Looking at the matter globally, an award of $247,490.81 for the plaintiff's injuries and their consequences is a not inappropriate amount.

35. I give judgment for the plaintiff in the sum of $247,490.81. I give liberty to apply as to arithmetical errors and such like, within 7 days. I will hear the parties on costs.