Jacqueline Vicki Dunstone v Mark H Foster [1986] ACTSC 46 (12 June 1986)

SUPREME COURT OF THE ACT

JACQUELINE VICKI DUNSTONE v. MARK H. FOSTER
S.C. No. 308 of 1984
Damages for Personal Injury

COURT

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

CATCHWORDS

Damages for Personal Injury - effect of injury on symptomless spondylolisthesis and condition known as "snapping hips" - no question of principle.

HEARING

CANBERRA
12:6:1986

ORDER

There be judgment for the plaintiff in the sum of $128,251.96.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 5 August 1978 when she was travelling as a passenger in a Ford Escort sedan driven by the defendant. Liability was admitted during the course of the hearing but it is necessary to say something about the circumstances of the sustaining of the injuries. The vehicle overturned when the defendant failed to negotiate a bend on the Oxley Highway whilst driving towards Port Macquarie. The plaintiff was seated on the nearside of the rear seat. There were two other passengers in the rear seat. In the front were the defendant driver and another passenger. The vehicle came to rest back on its wheels. The plaintiff lost consciousness. When she recovered, she found that the front passenger seat had been pushed back over her ankles so that she could not get out of the vehicle. It was late at night. Eventually she was released by ambulance officers and taken to the Port Macquarie District Hospital where she spent the rest of the night and was x-rayed. She was discharged the following day and driven back to Canberra where she lived. She saw her local medical practitioner, Dr Wilson, the following day and he certified her unfit for work for a week. At that stage she was "badly bruised" over most of her body, especially on the left thigh and hip where she had a bruise "the size of a football", but also on the ankles, shoulders and the "other hip". She said her hips hurt quite a lot at that stage. She also had a sore neck, a sore lower back and a sore shoulder. I shall have something further to say about the injuries and their aftermath in a moment.

2. The plaintiff was born on 11 December 1959. She was just over 18 years of age at the time of her injuries. She had been an extremely active young woman. An average student, she had left highschool in 1978 because of what she described as confusion as to developments in secondary education in the Australian Capital Territory. She took a job one month after leaving school with the Canberra City Soccer Club on a part-time basis doing sundry chores such as cleaning up the office, helping behind the bar, washing dishes and so on. That was the job she held at the time of her injuries.

3. The plaintiff had been active in sport at school, and a keen participant in the various activities offered by the YMCA (sic.). Her chief interest in sport was playing hockey which she had done since she was nine years of age. She had represented the ACT in hockey not long before the accident, and had been selected for the Australian women's hockey squad. In fact she played in two hockey competitions. She also played women's soccer. She trained three nights a week. It is remarkable that she had time for all these activities, but I accept her evidence.

4. In the YMCA she had, for many years, participated in gymnastics, trampolining, walking, orienteering and arts and crafts, so much so that she was an instructor in some of these activities at the YMCA courses and camps during school holidays. She also acted as a crew member in the YMCA sailing club, although it seems that she did not participate regularly in competition sailing.

5. After her injury the plaintiff resumed her job at the soccer club but found the work heavy. She had pain in the lower back at the end of a day's work. Because of that factor, but also because she was looking for more regular work, she resigned after about two months and took a position with a firm of stationery suppliers. She lasted there a few months. She said that she found the stacking of shelves, the carrying of boxes and the cleaning of the premises difficult because it caused pain in her lower back. She had "neck and shoulder pain" at the end of a day's work and would have to rest afterwards. She was "made redundant" and moved on to another position of a part-time nature at a car wash establishment. She found this work difficult also, particularly when she was required to get in and out of the vehicles for the purpose of vacuuming and cleaning the windows. She lasted at that job for about five months after which she became a hostess for a car hire company. That was a more attractive position because it provided full-time employment, but it was also more within her physical capacity. She married on 24 November 1979 and did not re-commence employment until July 1981. The gap in employment was not claimed to be due to the injury. During that period she underwent a secretarial course at a technical college. During the course she said that she had problems with her back and hips, that her hips were stiff and would seize up when she was walking, at least once a week.

6. In July 1980 the plaintiff was referred to Dr Kitchin for her complaints with regard to the back and the hips. Dr Kitchin had her admitted to the Woden Valley Hospital on 30 November 1980 and operated on the hips the following day. There was no relief from the hip pain. The operative scars, which I have seen, remain. They are very obvious and would not be hidden by a swimming costume. One scar is about 5 cms. long, the other slightly less.

7. In July 1981 the plaintiff commenced employment in the Australian Public Service as a secretary. She progressed and in September 1984 became a personal secretary to a senior member of the Administrative Appeals Tribunal, a position which she still holds.

8. The plaintiff's physical condition has not improved over the last few years. She has had a variety of treatments including electrical therapy, prescribed exercises by way of "aquarobics", cycling and the like. During 1984 she wore a brace. An extremely cumbersome object, it was produced at the hearing, and I can quite understand that it added to her discomfort. The plaintiff was prescribed medication from April 1984 through to March 1985, but she ceased because it was having no effect and she did not want to be reliant on it. Her complaints now are as they have been for several years. She has problems at work if she sits for prolonged periods. She is tired at the end of the day so that when she arrives home she usually has to lie down immediately. Her neck stiffens when she takes dictation. Her hips seize up at the end of each day. She tries not to lift anything heavy. From 1983 onwards she has employed people to assist in the cleaning of her house. She has not played hockey since the injury and has abandoned her YMCA activities. She tried sailing on her husband's catamaran for one season, but she was in such pain and so exhausted at the end of a period of sailing that she has ceased that activity also and the boat has been sold. She is not entirely inactive at weekends, however, and often walks with her husband for a distance of a kilometre or two. She takes an interest in the garden especially in the cultivation of orchids. She swims several laps at least twice a week. The pain in her hip occurs virtually every day. The pain in the lower back occurs regularly after sitting for a prolonged period. In her present occupation that is a substantial factor. Both hip pain and back pain interfere with sleep. The pain in the back feels as though it radiates into both of the hips. The plaintiff has been advised that surgery may become necessary in order to alleviate the condition in the back. She accepts this and says it frightens her. She is also wary about having a child both because of the difficulty of carrying the child during pregnancy but also because of the difficulty expected with lifting a child during the first few years. However, she does not claim to have abandoned the idea of having a family. Mr. Ballard for whom she works as a secretary is a sympathetic employer, but he is due to retire in three years time. If she could obtain part-time work of the nature she is doing at present, the plaintiff would take that on Mr. Ballard's retirement.

9. The plaintiff appeared to be a completely truthful witness, and she was not challenged as to the extent or the genuineness of symptoms she described in her evidence. Nor was she challenged as to the times of the onset of those symptoms, a matter which achieved some significance at the end of the hearing and to which I shall return.

10. A curious feature of the case, however, is that despite the impressiveness of the plaintiff as a witness some of her evidence does not receive positive support from the doctors. The plaintiff's complaints to Dr Wilson, whom she first saw on 7 August 1978 were of pain in the head and neck, of inability to raise the arms above the shoulders, and of pain in the left hip passing down to the foot. Dr Wilson did not give evidence but a report was tendered and admitted into evidence over objection. Dr Wilson's original examination of the cervical spine suggested that the pain was due to muscle bruising. He observed bruising of the left hip and thigh and the left ankle. He makes no mention of complaints of pain in the lower back or in the right hip or of bruising to the right hip. The plaintiff did not see Dr Wilson again until 22 January 1979 and that was for other matters. When questioned then by Dr Wilson as to whether there were any ill-effects from the accident still subsisting, the plaintiff said that her left hip would click. Upon examination the left hip appeared to be painful on movement in any direction. Again there was no complaint of low back pain or pain in the right hip. She did not see Dr Wilson again after the second occasion.

11. Dr Greenhalgh was the plaintiff's general practitioner from 9 June 1980 until the present time. He gave evidence. The plaintiff's original complaints were of low back pain, neck pain as well as clicking of the hips, numbness of the legs, pain and hip spasm. Dr Greenhalgh did not distinguish between pain in either hip. On the 37 or so occasions on which he has seen the plaintiff since, she has made complaints of pain in her hips or back or both on at least 11 occasions. Originally Dr Greenhalgh prescribed anti-inflammatory medication and physiotherapy but after some time the plaintiff did not seek further treatment.

12. Dr Greenhalgh referred the plaintiff to Dr Donald Kitchin, an orthopaedic surgeon. Dr Kitchin did not give evidence. His reports were tendered by the defendant and admitted into evidence over objection. When first seen on 21 July 1980 the plaintiff complained to Dr Kitchin of "vague low back pain, pain over the sacro-coccygeal region, pain and clicking in both hips". The latter became a particular problem during sexual intercourse after her marriage six months previously.

13. I take Dr Kitchin's report of 13 October 1982 to imply that he saw some recent x-rays. He also says that he was told by the plaintiff that x-rays had been taken of her pelvis in January 1979 and her low back in October 1979. The recent x-rays were of the lower spine and demonstrated spondylolisthesis at the L5-S1. The plaintiff had told Dr Greenhalgh on 9 June 1980 that x-rays taken in 1979 showed spondylolisthesis at L5-S1 level. There was also radiological evidence of spina bifida, but it is common ground that this latter condition is not relevant for the purposes of the case. Physical examination by Dr Kitchin demonstrated a limitation of hip flexion and abduction and a loud "clunk" over the greater trochanter of each hip. Dr Kitchin described this as a condition known as "snapping hips", or a dislocation of the ilio-tibial band over the greater trochanter of the femur. In relation to this latter condition, Dr Kitchin operated on 1 December 1980 to divide the ilio-tibial band on each side. He states in his report that the recovery of the operation was uncomplicated and the plaintiff had not been seen since. Dr Kitchin stated his doubts as to the connection between the snapping hips condition and the injuries and he anticipated a complete resolution in relation to that condition. He also stated that the spondylolisthesis was unrelated to the motor vehicle accident, that condition being a congenital type. In relation to both conditions he states that it is possible that the trauma of the injury could have rendered the condition painful but as far as the spondylolisthesis is concerned, it should not be a cause of continuous problems. Dr Kitchin's views were not tested by cross-examination.

14. In May 1982 Dr Greenhalgh referred the plaintiff to Dr Geoffrey Stubbs, an orthopaedic surgeon. The history the plaintiff gave to him was that initially after the accident she ached all over but eventually the symptoms settled down into soreness of the low back together with pain in each hip, the back pain, by the time of the examination, being present almost every day. Examination revealed tenderness over the greater trochanter region of each hip and tenderness over the L5 region of the lower back. However, movements of the spine were stated to be excellent, the plaintiff being able at that stage to bend over backwards and place her palms on the floor. Dr Stubbs viewed x-rays showing a spondylolisthesis at the L5-S1 level. I accept that by the time of Dr Stubbs' first examination it had become clear that the operation by Dr Kitchin had been unsuccessful in relieving the pain in the hips. Dr Stubbs re-examined the plaintiff on 18 October 1983, when the plaintiff complained of increasing symptoms in both back and hips. He stated in his report of 31 October 1983 that it was difficult to separate the low back and hip pain and that both contributed to the complex of symptoms. The plaintiff was complaining of increasing pain in the neck, particularly in association with her work as a typist. The plaintiff also told Dr Stubbs that at that stage she had give up her housework and "she is giving up skiing and competitive sailing". I conclude from this latter statement by the plaintiff that up until about that stage she had continued to do her housework and continued to follow at least to some extent her interest in sailing and skiing. The plaintiff had not mentioned skiing in her own evidence but a reference to a skiing accident by Dr Greenhalgh in July 1983 confirms that up till then the plaintiff was following those activities at least to a limited extent. However, by the time of Dr Stubbs' review on 18 October 1983 the plaintiff could no longer bend forward and backwards as she had been able to do on previous examination. Further physiotherapy was prescribed. Dr Stubbs suggested that, subject to further radiological and discogram examination, the plaintiff should consider submitting to a spinal fusion. The investigative procedures would have her in hospital for about ten days and off work for some three to six weeks. The anticipated costs would be about $850. If spinal fusion was performed she would lose about three to six months from work and the cost would be about $3,500.

15. Dr Stubbs gave evidence to the effect that the spondylolisthesis has resulted in a condition whereby the disc immediately above the vertebra where the slipping occurs is pushed inwards towards the pelvis and remains partially unsupported by the muscular structure which would otherwise have given it support. This causes a redistribution of the mechanical forces throughout the spine and is a likely cause of continuing or recurrent pain and of acceleration of degeneration in the spine. Dr Andrews, a neurologist who gave evidence for the defendant, is of the view that the spondylolisthesis became symptom-producing when the slipping of the spine was sufficient to cause tension on the L5 nerve root. Both doctors take the view that the condition can be alleviated by operative fusion. Dr Andrews tends to the view that the accident has merely accelerated what would have become a pain-producing spondylolisthesis in any event. He says that the symptoms have been brought forward in time by about five years. Dr Stubbs' view expressed in his evidence is that the area would not necessarily have become pain-producing at all and that the symptoms since the accident have been due to it. The view is based partly on statistics which I do not pretend to understand. However, Dr Stubbs concedes that if there was no experience of pain in the lower back for two years or so after the accident, then the accident should be disregarded as having any significant cause or connection. He would have expected symptoms within a few days if there is to be a casual connection. He also accepts in his report the possibility that the injury may have merely brought forward to an earlier time the symptoms that the plaintiff would have suffered in any event, and without the injury.

16. Dr Andrea, a general surgeon who gave evidence for the defendant, stated that he agreed that the trauma may have rendered the lower back painful "at the time" but would not be a cause of continuing problems. Neither Dr Andrea nor Dr Andrews appeared as definite as Dr Stubbs in the answers they gave in evidence and on the whole I would prefer the evidence of Dr Stubbs to that of the other two doctors. I also prefer the evidence of Dr Stubbs to the views as to causation and the prognosis expressed in Dr Kitchin's report. In the end one gets back to the evidence of the plaintiff herself and, as I have already said, she states that she noticed pain in her lower back upon returning to her work at the soccer club. Although, according to that evidence, the onset of lower back pain was not noticed for at least a week after the injury, I am convinced in the light of the medical evidence that it is unlikely that the onset of lower back pain was merely a coincidence, a manifestation of the spondylolisthesis that became symptomatic spontaneously and without any connection with the injury. The fact that the plaintiff did not notice pain in the lower back during the first week or so may be explained by the discomfort she had generally with bruising over most of her body. She stated that she had low back pain on various activities with the stationery supplies employer and she has had lower back pain at various times since: it is likely, in my view, that from time to time that has been overshadowed by hip pain. Furthermore, I accept Dr Stubbs' evidence that the marked deterioration in the spinal condition between 1982 and 1983 reflected the increased mechanical stress within the lower spine which the 1978 injury had precipitated. There is no question, however, that the plaintiff's damages must be reduced for the contingency both past and future that even without the injury she might have developed a pain in the lower back.

17. On the question of the casual connection between the snapping hips condition and the accident, the positive evidence of Dr Stubbs is to be contrasted with that of Dr Andrea and the reports of Dr Kitchin. Dr Stubbs said that the condition of snapping hips is due to malfunction in the ligamentous fasciae, which run down the outside of the hip over the trochanter, the prominent hip bone. To allow for mobility there is a bursa or gap over which the fasciae should be able to slide easily, but amongst very active females, or females who are active very often such as gymnasts and ballerinas, it is not uncommon for the fascial band to catch momentarily on the bone structure, causing an audible sound. It is, however, unusual for this condition to be painful. Dr Stubbs' view was that the condition could become painful upon trauma because of some disruption of blood vessels with resultant adhesions and the like. The defendant's submission was that there was no evidence of bruising or disruption of blood vessels otherwise and that accordingly the casual link had not been proved. However I accept the plaintiff's evidence that she felt pain and noticed bruising in both hips within a relatively short time after the incident, within a day or two. The pain in the right hip was probably over-shadowed by the greater pain in the left hip and in the rest of her body. It is not difficult to come to the conclusion on the balance of probabilities that the left hip was rendered symptomatic by the injury. Having come to that conclusion, I arrive at a similar conclusion in regard to the right hip. The operation by Dr Kitchin clearly did not relieve the condition and it indeed may have further contributed by the formation of surgical adhesions.

18. I interpolate that, although there was some inconsistency between the plaintiff's evidence and the statements to the various doctors of the location and times of onset of her aches and pains, her evidence was hardly challenged and certainly not affected by cross-examination. I would also add that the plaintiff's complaints of back pain to the doctors were in relation, on some occasions, to the cervical area. Again, however, this did not become a live issue in the case, and insofar as the plaintiff's case includes a claim for headaches and the like, I find that these have not been established as due to the injury. On the other hand, I accept Dr Stubbs' evidence that the effect of the accident on the spondylolisthesis occurs throughout the processes of the spine so that it is not unlikely that symptoms will be felt beyond the immediate lumbo-sacral area.

19. There is a loss of earning capacity in that the plaintiff is unable to work for long periods of time in the sort of occupations she now follows and for which she has acquired vocational skills and experience. It is possible that in the future she will not be regarded with the tolerance shown by her present employer. It is reasonable that in the future she may prefer part-time work, or if she cannot get it, to cease work altogether until part-time work is available. Other contingencies have to be taken into consideration, however. As a young married woman the possibility of having children must be taken into account as a factor which would take her out of the work force for some time at least, and probably several years. Another contingency which has to be taken into account is that at some stage by reason of degeneration alone or by reason of some other trauma or by reason of a combination, the plaintiff's spondylolisthesis would have become symptom-producing and incapacitating. There is also a similar contingency but a more remote one, I would think, in relation to the snapping hips.

20. I conclude, therefore, that the plaintiff's present condition both with regard to her hips and her lower back has more probably than not, been caused by the 1978 injury. I am not convinced that it was inevitable that without the injury the plaintiff would have suffered a symptomatic lower back condition from her spondylolisthesis without such injury, but the damages must allow for that contingency. As to the future, the indications are that the plaintiff is likely to get worse unless her condition is relieved by operative procedures. Again the damages will have to allow for that contingency of relief, including the off-setting contingency of the cost of the operation to which I have already referred. The contingency of surgical intervention is not one of high likelihood. In any event, if she does have a successful operation, she will be relieved to some extent of symptoms, but she will not have a normal back.

21. The plaintiff, I find, is a young woman who has had her enjoyment of life drastically curtailed by the results of injury. But for the injury she was likely to have enjoyed an active and successful sporting career and social life. That has, for all practical purposes, been brought to an end. She appears, however, to be a reasonably resourceful young woman and has not suffered any psychological harm. Her physical disability, however, causes difficulties within her marriage and places substantial difficulties in the way of motherhood.

22. It is impossible in the circumstances of the case to fix the loss of earning capacity into the future by applying a discount rate to a periodic loss. However, I note that a loss of $1 per week for 34 years into the future when the plaintiff would be almost 60 years of age has a present value, on 3% discount rates, of about $1200. The actual loss in the past is small and is agreed at $482.63. Medical and hospital expenses and the like are agreed at $3,011.83. A claim is made for payment for domestic assistance actually made in the past at $20 per fortnight in 1983 and 1985 and at $25 per fortnight in 1986. These amounts seem reasonable to me and total $1,055. The plaintiff makes a claim for future domestic assistance on the basis of $25 per fortnight and again this seems to me to be reasonable. However, in allowing a sum for this particular head of damages, I take care that it not be duplicated by over-lapping into the area otherwise of general damages. It is, after all, the sort of problem that would be met in many households, not by engaging outside assistance, but by the uninjured spouse assuming greater responsibility for household chores. Applying the 3% discount rate with a reduction for vicissitudes, I allow $10,000 under this head. Pain and suffering and loss of enjoyment of life, I would assess at $50,000. As to loss of earning capacity, I would assess this also in the region of $50,000. Damages would accordingly be awarded as follows:

Past loss of earning capacity $ 482.63

Medical and out-of-pocket expenses $ 3,011.83
Past claim for domestic assistance $ 1,055.00
Future claim for domestic assistance$10,000.00
Future loss of earning capacity $50,000.00
Pain and suffering and loss of
enjoyment of life $50,000.00
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Total: $114,549.46
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23. In retrospect, I think the total sum is appropriate. I allow interest on one half of the general damages at 14 per cent per annum, reduced by half, amounting to $13,702.50. I add the interest to the damages. There will be judgment for the plaintiff in the sum of $128,251.96. I will hear the parties on costs.