Suzette Maria Harrison v Peter John Harrison and Leanne Gruber [1986] ACTSC 81 (5 September 1986)

SUPREME COURT OF THE ACT

SUZETTE MARIA HARRISON v. PETER JOHN HARRISON and LEANNE GRUBER
S.C. No. 1862 of 1982
Damages

COURT

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

CATCHWORDS

Damages - Personal injury - No new question of principle involved.

HEARING

CANBERRA
5:9:1986

ORDER

There be judgment for the plaintiff in the sum of $30,973.20.

DECISION

This is an assessment of damages for personal injuries sustained in an accident which occurred on 5 June 1982, a Saturday. Interlocutory judgment for damages to be assessed was entered in favour of the plaintiff on 21 June 1984. The accident took place when a vehicle which was then being driven by the first defendant and in which the plaintiff was a passenger collided with the rear of a vehicle then being driven by the second defendant.

2. As a result of the collision the plaintiff was thrown forward with quite a sudden jerk, was flung back against her seat, her head being jerked backwards quite strongly, and then thrown forward once more. Her leg and left arm struck some part of the vehicle. She did not feel pain immediately but was just generally shaken up so that she felt, as she put it, very shaky. She got out of the car to check the condition of her son who complained that his head was sore. The accident occurred late at night. On reaching home she went straight to bed.

3. When she woke on the following morning she was sore all over. She stayed in bed. Although still sore, she went to work the next day. She saw her general practitioner, Dr Cleary, on the day following that. She did not feel really well after going to work but was unwilling to risk the loss of her job which she had had for only about four weeks.

4. Dr Cleary referred her to a physiotherapist and also to Dr Ferguson. She sought medical advice because the pain became more specific in the back of her neck and in her lower back. She suffered some localised bruising on the arm and leg but pain and discomfort connected with those injuries subsided and after about a week caused her no further difficulties.

5. Before the accident the plaintiff suffered occasionally, perhaps twice a year on average, from migraine headaches and had done so since she was a teenager.

6. On the day after the accident she was suffering from a headache which lasted three days before she got relief. The headache was located principally in the back of her head. Moving her neck was painful and after sitting at her desk for about an hour her neck would begin to ache quite unbearably. The pain would then develop into a headache which started at the back of her head and moved into the temporal area. The headache was of a different kind from the migraine headache from which she suffered. Her neck pain was located in the lower part of the neck where the neck meets the shoulders. She also had mid lower back pain.

7. The plaintiff received physiotherapy treatment twice a week for four to five weeks. Dr Ferguson, to whom she had been referred by Dr Cleary, referred her to a chiropractor. She consulted two and received manipulative treatment which gave her relief for about an hour after which her condition returned to much the same as it had previously been. Dr Ferguson also gave her manipulative treatment without much success.

8. In the year after the accident she continued to work, taking the odd day off and so adjusting her duties that if she was not feeling well she could do light work and in that way manage, though with difficulty. She could not sit for any length of time without pain in her lower back. She would then have to get up to move around for relief and would start getting a headache which by the end of the day would either be what she described as reasonable or bad. The headache would begin with a burning sensation in the back of her neck which actually became swollen until it was sore to touch and the pain went up from the back of her neck to the temporal area. This occurred about two or three times a week. She took mild analgesics.

9. After the accident her back condition stayed at the same level for a time, then got a little better. With the passage of time the pain in her lower back is now at a bearable level.

10. She found that she got a sharp pain in the lower back when bending. Asked to compare the condition of the neck and that of the lower back she described her neck condition as a more constant ache and the lower back condition as just occasioning a sharp pain every now and then. Her physiotherapist had given her some exercises to continue for her back but she found them very difficult to do because of pain. She persisted with the exercises for a while but eventually had to stop them.

11. She continued to work, first because she wanted to keep the job and secondly because in her absence the office would have to shut down since she was the only employee there. She therefore "managed during the week (but) at the weekend tended to relax and get bad headaches, particularly in the first year". During the first year after the accident she spent much of her non-working time in bed.

12. On 10 June 1983 she consulted a neurosurgeon, Dr A. Robson, to whom she had been referred, apparently, by Dr Ferguson. Reporting to Dr Ferguson, Dr Robson said:-

"I always feel that six months represents a

sort of watershed in treatment, and up until
six months one can wear collars and have
physiotherapy or manipulation and all those
physical measures, but then at six months I
encourage people to make a decision, the
decision being either to put up with it with
the best grace they can and accepting such
temporary help as they can or, alternatively,
pursue operation."

13. Having consulted Dr Robson, the plaintiff elected to put up with her continuing pain because she did not want to have to undergo surgery which, so far as she could see, offered only some chance of success.

14. On 7 May 1984 she consulted another neurosurgeon, Dr Chandran. His report of 26 July 1984 expressed much the same view as had Dr Robson in his report of 10 June 1983. About four weeks before she consulted Dr Chandran the plaintiff was involved in another accident which temporarily exacerbated her lower back condition for a few weeks without affecting her neck condition at all.

15. The plaintiff gave evidence about her pre-accident pursuits and activities, evidence which I accept. She impressed me as a witness of truth putting her complaints moderately, and I thought, accurately. As an example, her description of the pain beginning with swelling of the neck followed by headache beginning at the back of the neck and moving to the temporal area was confirmed by Dr Chandran when he gave evidence as describing a known set of clinical signs. I accept the plaintiff's evidence of the restrictions which have been caused her by her neck condition following the accident.

16. Dr Chandran, giving evidence, considered that the headaches of which the plaintiff complained arose from the injury to the neck that she had suffered in the earlier car accident. He described the pathology in the following terms:-

". . . she described what is called an
occipital type of headache radiating from the
back of the head towards the front of the
head. Now, those headaches are caused by a
spasm of the neck muscles which then squeeze
or entrap the occipital nerve that runs
between the layers of the muscles and lead to
that kind of pain."

He ascribed the swelling of which she complained to the muscles undergoing spasm and then standing out as prominent tissue.

17. He advised that surgical treatment, anterior fusion of the neck following discographic investigation of the neck, was available for her neck condition. He would require that that investigation be undertaken before surgery. He considered that the motor vehicle accident caused disruption of the cervical discs at the C5-6 level and probably at the C4-5 level as well. I think that, on the probabilities, despite lack of discographic evidence, the plaintiff did suffer the disruption which Dr Chandran thought she did and that in the circumstances the surgery which he described would be offered her after discographic investigation provided that the pain had reached the point where she could no longer bear it. Dr Chandran took the view that a patient might expect an 85% chance of improvement in her pain following a two level fusion which I think would be the probable requirement in the plaintiff's case. If improvement occurred it could extend to total relief or to residual minor restriction of rotation of the neck with some discomfort on the neck with extreme movements. Dr Chandran did not see the injury to the lumbar spine as a major problem. He thought it unlikely to deteriorate further. This view was strengthened by a further insult which the affected part sustained in the second accident but which led to no continuing exacerbation. He thought that there was a 50/50 chance that, in 1987 or 1988, the plaintiff might be required to undergo surgery.

18. In 1981 she and her husband bought a property of some 600 acres (the land) at Michelago, intending, she said initially, to run sheep on it and earn their living from it once their younger son finished his schooling. The plan was that her husband, her eldest son who was interested in agricultural pursuits, and she would work the property.

19. The plaintiff did indicate in her evidence that it was expected that her eldest son would finish school at the end of 1986 but it seems clear that this was an error and that she was in fact referring to her youngest son.

20. At the date of the hearing the plaintiff and her husband were building a house which was apparently almost complete on the land. They still retain their house in Canberra and intended to live there until probably early 1987. The land is not pasture improved, is lightly timbered and consists in part of hilly country with rocky outcrops and in part of valley country. It cost $10.00 an acre. The plaintiff and her husband hope to buy or lease 1200 acres adjoining their land but at the time of the hearing there was no definite proposal regarding this.

21. The land is some 30 kilometres from the Michelago turnoff on the Cooma Road. Of this 30 kilometres about half a kilometre is sealed and thereafter the state of the track is what the plaintiff described as "pretty bad". Periodic journeys to the land using a four wheel drive vehicle cause the plaintiff severe headaches. In her present condition she sees herself as generally confined to the house, able to do the general housework and the books but not to engage in the physical activities which she had planned. Although not a horsewoman she did have some riding experience but horse riding is now out of the question.

22. There is no evidence to indicate what the economic return from the land would be. I think that really the plan was that the house and land should constitute the family home. The land would perhaps yield some modest income to the plaintiff and her husband but primarily it is seen as the means of support for their eldest son.

23. This appears clearly enough, I think, from a question put and an answer given by the plaintiff during cross-examination. She was asked, "This property of yours is going to support both your husband, your boy and yourself, is that right?" She replied, "It does not have to support my husband and myself, no, because he is on a superannuation and it is basically to support my son."

24. In answer to a further question as to whether they proposed to live on the support provided by her husband and his superannuation benefit, she replied, "Initially, we hope, for the first twelve months. After that we hope to pay our way."

25. I am not satisfied that the plaintiff has suffered any quantifiable economic loss which could be ascribed to any disruption of plans concerning the proposed pastoral activity. I am satisfied that the accident has deprived her of the opportunity to take part in the more vigorous aspects of that activity. The deprivation is real because I am satisfied that before the accident of 5 June 1982 she was physically a very vigorous woman.

26. I also have to take into account the fact that she has probably lost some earning capacity as a result of that injury. It is true that she continued to work at her pre-accident job as an administrative assistant with minimal loss of work, less than 10 days all told. But she was able to do this because of the flexibility which her working conditions allowed her. If the family leaves Canberra and goes to live on the property as they plan to do early in 1987 and if, subsequently, in response to some not unforeseeable contingency, she is required to seek to earn her living thereafter in a clerical capacity she may, because of her physical incapacity, have more difficulty in getting work at her age, she was born on 17 September 1946, than will be the case of a woman in similar case without any physical disability. The amount to be allowed on this account is modest but some allowance must be made. I think $4,000 is a just amount to allow under this head.

27. For pain and suffering and loss of enjoyment of life, taking into account all the factors to which I have adverted and the plaintiff's evidence and making allowance for the possibility, which I see as relatively slight, that she undergo surgery and be completely relieved of symptoms, I allow the sum of $22,500. If she does undergo surgery, its total direct costs, on the evidence of Dr Chandran, would amount to approximately $3,650. The possibility that allowance must be made for loss of earning capacity during hospitalisation and convalescence on the basis that at the time the plaintiff might undergo surgery she would be engaged in employment other than on the property is so slight that I discard it. If the plaintiff undergoes surgery and her pain is alleviated to some degree (and I think the result would probably amount to no more than that) the cost of the surgery may be balanced against a fair reduction in the allowance for pain and suffering.

28. Out-of-pocket expenses are agreed at $1,173.20.

29. I think an appropriate amount to award for interest is $3,300.

30. There will be judgment for the plaintiff in the sum of $30,973.20.