Maria Pantaleo v Glen Mcnabb [1986] ACTSC 65 (15 July 1986)

SUPREME COURT OF THE ACT

MARIA PANTALEO v. GLEN McNABB
S.C. No. 1578 of 1982
Damages for Personal Injury

COURT

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

CATCHWORDS

Damages for Personal Injury - printing worker and housewife - 37 years at time of injury -cervical spine injury - two operations for fusion and other operative treatment - no question of principle.

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

Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402

HEARING

CANBERRA
15:7:1986

ORDER

There be judgment for the plaintiff in the sum of $119,375.00.

DECISION

This is an action for damages for personal injuries. The plaintiff was injured on 6 May 1982. The writ was issued on 16 August 1982. Interlocutory judgment was obtained for want of a defence on 28 March 1983 and a certificate of readiness was filed on 29 October 1985.

2. The circumstances of the injury were that the plaintiff was driving home from work and whilst stationary at traffic lights her vehicle was struck by the defendant's vehicle from behind.

3. The plaintiff was born in Calabria, Italy on 17 November 1945. She came to Australia at the age of thirteen years. She was with her family. She found the two years or so that she spent at school in Canberra difficult and it appears that her education in this country did not proceed beyond lessons in English. After leaving school she worked in a relatively unskilled capacity in the Government Printing Office. She married at the age of 18 years. The birth of children followed in 1964 and 1967. During those years she did not go out to work but earned money by staying at home looking after the children of other people as well as her own. In about 1970 she resumed employment on a part-time basis in a supermarket, then in a milk bar. In about 1972 she gained full-time employment in a fashion store. That was followed by about three and a half years part-time employment in another supermarket. Her third child was born in 1977 and about two years later she once again resumed full-time employment, this time for a company known as Adriatic Bookbinders Pty. Limited. She was still working for the bookbinders at the time of her injury. By that stage it is apparent that despite her lack of formal education she had a reasonably good command of the spoken English language and had acquired diverse skills in the bookbinding trade. The managing director of the bookbinding company gave evidence, which I accept, that she was a valued and hardworking employee. I also find that despite the demands of her employment, the plaintiff was a woman to whom her family life was important and she took pride in her role as a housewife and mother.

4. The immediate effect of the injury of the accident upon the plaintiff was not such as to prevent her reporting the incident to the police, driving home, and after resting for a short time, preparing the family's evening meal. She went to work as usual the next day but over the next few days began to feel pain in her neck. She consulted her local practitioner, Dr Bradfield, who prescribed pain-killing medication and a cervical collar. X-rays taken at that stage showed no evidence of bone injury. Dr Bradfield certified her unfit for work and she was still regarded as remaining unfit when she was referred to Dr Kitchin, an orthopaedic surgeon, on 13 July 1982. By then the pain about which she complained extended across her shoulders particularly on the lefthand side. Dr Kitchin regarded her as continuing unfit for work. On 3 September 1982 the plaintiff, on reference from Dr Bradfield, saw Dr Newcombe, a neurosurgeon, for the first time. Her complaints remained the same. Dr Newcombe suspected an intervertebral disc lesion and arranged for a discogram. These were performed on 6 October 1982 and demonstrated disc disruption at the C4/5 and C5/6 levels. Dr Newcombe performed microsurgical disc excision at those levels on 15 November 1982 with interbody fusion using graft material from the right iliac crest. At review on 16 December, Dr Newcombe noted that the plaintiff felt that her headaches and arm pain had gone but that there was some persistent restriction of lateral flexion of the neck.

5. Through 1983 the plaintiff continued to see Dr Newcombe and Dr Bradfield. Dr Newcombe felt that the plaintiff was fit to return to work, presumably on restricted duties, by the end of February. The plaintiff enquired as to whether work was available with Adriatic Bookbinders Pty. Limited and was told that there was none. I am satisfied that her inability to obtain work with that company at that stage was due to a temporary downturn in business. She obtained a job in a supermarket at Deakin in early 1983 but lasted there only three days, finding that the lifting of boxes and the stacking and cleaning of shelves at shoulder height or above brought on pain. Between the beginning of April and June 1983 the plaintiff obtained work at Capital Bookbinders. She said and I accept that she coped adequately in the first week, but that thereafter pain in the neck and shoulder increased to the extent that she had to give the work away. In particular she was required to extract staples from books by means of pliers, a job which she told Dr Newcombe was heavier than the job she had at the time of injury. This also I accept. At about this time the plaintiff was referred to an occupational therapist, Mrs. Tapsall, and obtained some relief from the pain management program carried out. Mrs. Tapsall noted the plaintiff complaining of tension type headaches as well as neck pain extending from the shoulders to the waist. The plaintiff's condition was relieved to the extent that in September 1983 she found some more work with a mailing company on a casual basis. The offer of employment from that source, however, was not renewed after the first few days, the plaintiff finding it difficult to lift the boxes of books and the like which was required of her. There were similar periods of casual employment with a newspaper and a printing company and on all occasions pain in the neck and shoulder, according to the plaintiff, prevented her from continuing to carry out the work concerned. The plaintiff did not obtain employment again until 1985. In the interim the plaintiff continued to be the subject of medical attention.

6. Towards the end of 1983 the plaintiff was referred by Dr Newcombe to Dr Lithgow, an anaesthetist at the Woden Valley Hospital. Dr Lithgow's tests led him to suspect that the plaintiff may have been suffering from what is called a "left quadrilateral space syndrome" and he referred her back to Dr Newcombe for consideration as to surgery. By this time Dr Newcombe noted that the plaintiff was complaining of pain in the region of the left shoulder in addition to her neck pain. The symptoms suggested to Dr Newcombe that there was an entrapment of the circumflex nerve and once again the plaintiff was subjected to operative treatment on 27 April 1984. Upon review by Dr Newcombe on 24 May 1984, there was still residual pain at the back of the neck but the shoulder pain had gone and there was an increased range of movement at the shoulder. The plaintiff was expressing hopes of returning to work, but Dr Newcombe expressed reservations as to whether suitable work would be available for her. In addition, he noted anxiety and depression. The plaintiff's solicitors referred her to Dr William Knox, a consultant psychiatrist, who supplied a comprehensive report based on his interview with the plaintiff on 6 June 1984. I shall return to this in a moment.

7. On 2 October 1984 the plaintiff saw Dr Chandran, another neurosurgeon, for the first time. At that stage her complaints were of persisting headaches daily, radiating towards the front of the head, weakness in the left shoulder and pain aggravated by physical activity including changing gears whilst driving. On examination there was marked restriction of movement of the neck, shoulder pain upon elevation of the left arm and tenderness of the left trapezius muscle. X-rays taken on 3 September 1984 as well as the symptoms suggested that the fusion operation was unsuccessful. A discogram performed on 2 November 1984 confirmed this. Dr Chandran carried out further fusion at the C4/5 and C5/6 levels on 4 December 1984, together with nerve root decompression. Fusion at the lower level was slow but complete by July 1985. There were still complaints, however, as to pain in the left shoulder and the plaintiff was referred again to Dr Lithgow. Dr Lithgow performed a left circumflex nerve block with the use of local anaesthetic which provided relief of pain for twenty-four hours. The plaintiff was advised by Dr Chandran that further relief would be possible by exploratory and possibly decompressive surgery. The plaintiff declined to proceed with further surgery and when last seen by Dr Chandran on 21 November 1985 stated that the pain in her neck was only occasional. Dr Chandran's view at that stage was that the plaintiff was fit to return to light duties that did not require long periods of neck flexion, repeated neck bending or lifting heavy weights. In his evidence to the Court, Dr Chandran stated that he thought the plaintiff was fit for work which did not involve lifting or standing continuously and he thought that she could carry out the duties of a shop assistant, with those restrictions, for about four hours a day, five days a week. He agreed in cross-examination that the plaintiff displayed a full range of movement which was pain free, that she was not particularly motivated to get back to work in mid 1985 and that it was possible that in due course she could get back to full-time work.

8. The report of Dr Knox, the psychiatrist, showed that the plaintiff was not suffering from any mental illness but a moderately severe level of depressive illness which complicates her condition and probably amplifies the pain that she felt from her organic illness. He felt that the plaintiff's depression would abate in proportion to any improvement in her physical condition.

9. The medical evidence presented on behalf of the plaintiff was not really challenged. Mr. Morris Q.C. for the defendant properly conceded that the plaintiff had undergone a painful ordeal by virtue of the several operations. It was submitted on behalf of the defendant that the plaintiff had reached her present condition by about September 1985, and that she has since then been fit for a range of duties. It was further suggested on behalf of the defendant that the plaintiff was exaggerating her symptoms and that her case was complicated by personal and family factors for which the defendant could not be held responsible.

10. I gained the impression during the plaintiff's evidence-in-chief that she was exaggerating her pain and disabilities. However, during the course of cross-examination it seemed to me somewhat paradoxically that the plaintiff was prepared to concede a good deal. I have concluded ultimately that the plaintiff was not trying to mislead the Court. Probably, given the chance to talk, she tends to become expansive and possibly a little self-pitying. She has probably tended to blame the accident for some of the difficulties at home, particularly with her growing children whose cultural environment is not the same as hers was. I accept that the plaintiff was at the time of her injury a happy, hardworking, outgoing woman, and that this is no longer the case. However, I do not think that the plaintiff's injury is wholly or solely responsible for the present circumstances. I think that it is probable that her loss of libido is a consequence of her loss of self-esteem which in turn is closely connected with her unsuccessful attempts to continue at work. I reject the suggestion that her attempts to go back to work have been a sham and made only in an effort to strengthen her case. I accept that the plaintiff has had to rely upon her elder daughter and her husband to do a lot of the work around the house and garden that she previously used to carry out with some pride and that it is appropriate to make allowance in the award of damages for this factor. The parties have sensibly agreed that, providing I find the plaintiff was sufficiently incapacitated over the period from injury until the present time, an appropriate award in accordance with the principle in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 would be $4,000 for both past and future. In favour of the defendant I am not convinced that the plaintiff would, but for the accident, have continued for the rest of her life to be as active as she was at the time of injury. She nevertheless continues to push herself, as she said in her own words, and she attends at the Erindale College three days a week to learn English.

11. I take into consideration that the plaintiff's husband gave evidence which supported many but not all of her complaints of pain and restriction of activity. I found him a completely acceptable witness. I find that the plaintiff does experience pain in the neck and shoulders when she carries out activities requiring bending and lifting her arms at shoulder height or above and consequently is not fit to carry out employment requiring those activities for more than a minimal time. I accept also that she does suffer to some extent headaches and sleeplessness. I am not convinced that all of her symptoms or restrictions are as great as she has maintained in evidence and I expect that with the end of litigation there will be some resolution of her symptoms. If she is motivated to seek employment it appears that there is available for her still with Adriatic Bookbinders Pty. Limited employment on a full-time or part-time basis. Dr Bradfield, her local practitioner, regularly prescribes sleeping tablets and pain-killing medication which, according to the plaintiff, costs about $17 per month. The evidence on this aspect was somewhat inconclusive but I intend to make some allowance for it. The plaintiff gave evidence of the difficulty with sleeping leading to a changing around of beds and matresses, but the evidence was imprecise. Allowance for this will be contained within the award for general damages. I accept that her loss of libido to date has been connected with the accident, but as far as the future is concerned I am convinced neither that it will continue forever nor that the level of activity she enjoyed at the time of injury would have continued forever without injury. Similarly, as far as activities around the house and garden are concerned. I think that she will, in the future, other things being equal, play a greater part in these than she has in recent times, but on the other hand it is and always was possible that her husband and growing children would have played their part also.

12. I note that the plaintiff still bears the scars of her operations. I have not seen them or been shown photographs but I accept that there are operative scars on both hips which are sometimes painful, and scars also on the neck and shoulder.

13. It was submitted on behalf of the defendant that the plaintiff's case in regard to loss of earning capacity was such that it could not be quantified on a continuing basis and the best the Court could do would be to choose a lump sum for future loss and a moderate sum at that. However, as I understand the decision of the High Court in Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402 it is incumbent upon a court seeking to assess the present value of future loss of earning capacity to quantify the present loss on a continuing basis, if that can be done on the evidence, and to capitalise by arithmetical process the present value of the continuing loss for the predicted future term. I think that it is possible, difficult as it may be and unreal as it may seem, to fix the plaintiff's present periodic loss of earning capacity. If she had continued at Adriatic Bookbinders Pty. Limited, she would be earning $214 net per week for a thirty-eight hour week. When she worked for that company in 1983 she was receiving a net weekly wage of $172 per week. When she was working for that company from September to November 1985 she was receiving $5 per hour gross for five hours a day, five days per week. In my view the plaintiff has not satisfactorily explained why it was necessary for her to give up work in November 1985, but it may be, in the light of the evidence of Dr Chandran, that the hours were just a little too long. The enthusiastic evidence of Mr. Maccarone, managing director of Adriatic Bookbinders Pty. Limited, as to the plaintiff's capacity, subject to her physical limitations, makes it likely that she would be a successful candidate for work with Adriatic Bookbinders Pty. Limited for about twenty hours per week, which would yield her an income of about $100 per week, which itself reflects a loss of earning capacity of about $100 per week. I do not think it desirable or necessary to be any more precise than that. On the 3% discount tables a loss of $100 per week for 16 years into the future, taking the plaintiff to age 60, has a present value of $66,500. I think that that should be discounted for vicissitudes higher than what might be regarded as usual having regard to Dr Chandran's evidence that the plaintiff may well be fit to work in full-time employment at some stage in the near future and also having regard to the increase in incidence of early retirement in the Australian work force. I would award $45,000 for loss of earning capacity in the future. As far as loss of earning capacity in the past is concerned, it is agreed that the plaintiff's total loss of earnings, assuming that she was totally incapacitated, except for those periods when she in fact worked, is $35,200. I think that this should be reduced having regard to the fact that the plaintiff has already regained a measure of earning capacity, and for other contingencies. I would award $32,000 for past loss of earning capacity. Out-of-pocket expenses are agreed at $11,100. The Fox v. Wood component is agreed at $3,100. Bearing in mind the need to avoid over-lapping, I would award $20,000 for pain and suffering and loss of enjoyment of life, as to which I apportion $15,000 for the past. I round out the total damages to $115,000. Interest is awarded on the $15,000 just mentioned at 14% per annum reduced by half and calculated at $4,375. Worker's compensation payments made to the plaintiff are only slightly in excess of the award in respect of past loss of earnings and interest is not awarded on that component. Damages and interest together amount to $119,375.00 and the plaintiff is to have judgment for that amount. I shall hear the parties as to costs.