Winifred Ann Daley v Debbie Fay Cantrill [1986] ACTSC 88 (18 September 1986)

SUPREME COURT OF THE ACT

WINIFRED ANN DALEY v. DEBBIE FAY CANTRILL
No. SC 450 of 1992
Number of pages - 20
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Whiplash - Cervical Spine - Fusion at 2 levels - Thoracic and lumbar spine - Pre-existing thoracic defect - Lumbo sacral fusion - No issue of principle.

HEARING

CANBERRA
18:9:1986

Counsel for the Plaintiff: B. Murray QC

F. G. Parker

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: J. Hartigan

Instructing Solicitors: Crossin Power Haslem

ORDER

The Court orders that:

1. Judgment be entered for the plaintiff in the sum of $427,560.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 29 May 1980.

2. The plaintiff was born in England in January 1940. She left school at the age of 15 and married at the age of 18. She and her husband had six children, five of whom are living, and they came to Australia in 1967.

3. In 1970 the family came to Canberra, and she began to work as a cleaner in about 1974. In 1978 she obtained employment in the Food Services Division of the Woden Valley Hospital, working at the Jindalee Nursing Home.

4. On 16 April 1979 she slipped at work and hurt her knee. The documents relating to the report of that injury are in evidence, and I am satisfied that she did not receive any injury in that incident that is relevant to the present claim.

5. She had not enjoyed perfect health, but in 1980 she was in good health, and specifically she had not suffered from any back pain before then.

6. On 29 May 1980 she was driving home from work wearing a seat belt. A vehicle driven by the defendant was travelling in the opposite direction. It collided with the car in front of it, and then crossed to the other side of the road and collided head on with the plaintiff. It was a violent collision. She was wearing a seat belt. Her head went forward and hit the steering wheel, her knees hit the dashboard, and she was then thrown back into her seat. She remained at the scene of the accident until she was taken by ambulance to the Woden Valley Hospital.

7. She was shocked, her nose was bleeding and bruises had already started to swell on her face. She was kept at the hospital for a while for observation before being given some tablets and sent home. She went home to bed feeling very shaken.

8. The next morning she had pain in the neck, so she went back to the hospital where they X-rayed her neck and gave her a collar to wear.

9. On 2 June she consulted Dr Ingram, her general practitioner. He noted her injuries as being contusions to the face, right upper lip and both knees. There was a flexion extension injury to the neck. She was treated with a cervical collar, Indocid and given two weeks sick leave to rest. She stayed off work for about two weeks, and when Dr Ingram saw her on 13 June 1980 he commented that there appeared to be no sequelae and she was fit to return to work.

10. The central difficulty in this case relates to the fact that in November 1988 Dr Robson operated on her lumbo-sacral spine. It is noteworthy that there is no record of any complaint by her relating to that area when she saw Dr Ingram in June of 1980. Dr Gibson succeeded to Dr Ingram's practice and in May 1985 he reported that to the best of his knowledge the plaintiff did not attend that practice for treatment of any problems relating to the accident between June of 1980 and early 1985.

11. Her evidence is that when she went back to work she began to feel an ache in her back and pain in her legs. She was doing supervising work, and was not involved in any heavy manual work. She said that she was still experiencing pain in the neck, back and legs.

12. As a member of staff of the hospital she had access to Dr Appel at the staff clinic. Dr Appel's notes are in evidence. They show that on 8 July 1982 the plaintiff attended the clinic with a stiff neck giving a history of a motor vehicle accident two years before with injury to the neck. Naprosin was prescribed and she was given physiotherapy. There was no complaint recorded about the lower back.

13. At about that time she was transferred to Woden Valley Hospital. She began to work in the cafeteria, where the work was heavier, as it involved moving heavy trays and containers of food into and out of the bain-marie. She gave evidence that she began to feel pain in her neck and lower back. She found it hard to continue with housework. There is an entry in Dr Appel's notes dated 7 October 1983 that she was tense and suffering from headaches. She was unbearable to live with. No reason was admitted. She was prescribed Serapax. I think it is a fair inference that the types of notes kept in the staff clinic were not absolutely complete. There is an entry for 14 November 1984 which states simply, "back to work", but no details of why she had been off work nor for how long. Dr Appel was not called to give evidence or be cross-examined.

14. A summary of the plaintiff's sick leave record was tendered by the defendant. It shows that between 5 October 1980 and 12 May 1984 she took leave on sixteen occasions, for ten of which she had a medical certificate. The certificates themselves are not in evidence and all the sick leave record shows is that the reason for the absences is not known. In general after that date the reasons are stated in the record. Some of those absences were substantial, including one from 3 April 1984 to 12 May 1984. The plaintiff was cross-examined about them. Some absences may have related to back problems. Many did not.

15. It may be significant that she saw Dr Gibson on 30 April 1984. She had a painful limitation of neck extension and rotation. He thought that the rest of the back was essentially normal on examination. On questioning her at about this time he was told that she had had intermittent aches and stiffness in the neck since the accident. There had also been diffuse aches from between the shoulder blades to the sacral area. There had been no radiating pains or numbness in the arms or legs. Dr Gibson also noted that a recent X-ray showed a wedge shaped collapse of T11 vertebra. He thought that it was most likely a congenital abnormality.

16. The sick leave records show that the return to work on 14 November 1984 followed an attack of tenosynovitis which was the result of lifting a heavy load.

17. On 14 March 1985 she consulted Dr Ramsay, a general practitioner. She complained of back pain. He noticed the radiological evidence of the defect to the thoracic vertebra, which he thought was due to an old crush fracture and which he related to the accident. He also was not called or cross-examined.

18. On 29 April 1985 she underwent a thorough examination by Dr Ferguson. Her complaints about her neck pain were consistent with her evidence and with such medical records as have survived in respect of the period up to 1985.

19. The history that she gave about the lower part of her back was that the soreness commenced on the day after the accident, increased over the next three weeks and then eased over the following two weeks. She said that for the first three years after the accident she got recurrent bouts of lower back pain which lasted a few days, that it had progressively worsened and had been present for most of the time for the last two years. She also told Dr Ferguson that her lower back pain had not spread to her lower limbs and she had not experienced any abnormality of sensation in her lower limbs. The lower back pain was worsening overall and was still increasing.

20. I treat with a great deal of caution therefore her evidence that she had pain in her legs over that period.

21. On examination Dr Ferguson found scoliosis of her dorsal and lumbar spine. There was a slight restriction of movement in the neck and some tenderness over the cervical spine. There was a full range of back movements but some lower back pain at the limits of torsion and flexion. Dr Ferguson noted the congenital abnormality in the shape of her dorsal vertebra.

22. Dr Ferguson considered that as a result of the accident the plaintiff had suffered subluxation and instability of her cervical, dorsal and lumbar spine, associated with upper spinal nerve root compression, which had resulted in recurrent pain in her neck and shoulders, increasing lower back pain, frequent headaches coupled with irritability and loss of appetite, restriction and stiffness of her neck and back movements, spinal tenderness and radiological abnormalities of the spine with some other consequent symptoms. He thought that she was also suffering from a congenital abnormality of her D11 vertebra which was responsible for considerable deformity of her lower dorsal and lumbar spine and her abnormality of stance, but which was asymptomatic prior to the accident and which in his opinion had not contributed to her complaints since.

23. He advised manipulative treatment in order to correct the subluxation. He attributed the displacement of the dorsal and lumbar spine to the congenital fault. The mal alignment of the cervical spine was mostly attributable to the accident. Dr Ferguson performed some manipulation of the plaintiff's back and then sent her to Dr Weiss, a chiropractor.

24. The plaintiff's solicitors sought an opinion from Dr Danta, consultant neurologist, who saw her on 8 August 1985. The history that she gave to him was that the day after the accident she developed pain in the neck and posterior thoracic region. The pain in the neck had increased some eight weeks after the accident. The thoracic pain had been intermittent until about two and a half years before, but during the past two and a half years had been continuous. She told Dr Danta that she had only lost two weeks off work but that work activities increased her pain. On examination he found that her neck movements were full and there was no tenderness in the neck, thoracic or lumbar regions. Straight leg raising was normal and there were no abnormal neurological signs. He looked at the X-rays and noted the wedging of the T11 vertebra, which he then thought was a crush fracture that had happened at the time of the accident. The state of that vertebra explained to him the thoracic back ache. In his report dated 9 August 1985 he did not comment on the lumbo sacral area.

25. On 10 September 1989 Dr Newcombe, neurosurgeon, examined her at the request of Dr Gibson. It seems that her complaints to him also were only of the neck ache and thoracic pain. The only restriction of movement he found was a restriction of lateral flexion of the neck. The X-rays taken about five months previously were within normal limits, apart from the acute wedged thoracic vertebra. He felt that the plaintiff had made a good recovery apart from some pain due to her musculo-ligamentous injury of the neck. He commented on her depression and anxiety, but recommended no further treatment. He expected eventual resolution of what he thought were residual symptoms.

26. Meanwhile she underwent six manipulative treatments of her spine by a chiropractor as Dr Ferguson had suggested. Her complaints remained unchanged, so that Dr Ferguson manipulated her spine under general anaesthesia on 21 October 1985. At first he thought the procedure had gone well, and the lordosis of her cervical spine was apparently restored at the time it was performed, but an X-ray of 23 October 1985 showed no change in the curvature compared with the films of May 1985. Her complaints in relation to the injury in October 1985 were still the same as before. He thought that the remaining complaints were the result of persistent instability of her spine, but suspected at least the possibility of an as yet undetected spinal disc injury. He anticipated continued worsening of her lower back pain, which according to the history he had obtained had been occurring since three years after the accident.

27. Dr Ferguson was not required to give oral evidence or be cross-examined.

28. After some more physiotherapy she returned to work. She found that she was able to get through the day only with the help of other workers. On 5 November 1985 she was feeling sick and told her supervisor. He suggested that she stay away from work until she felt better. Effectively she has not worked since.

29. Dr Ferguson then referred her to Dr Robson, neurosurgeon, who saw her first on 13 January 1986. He is quite certain that on the first occasion she mentioned her lower back to him but, since her neck pain was the worst of all, he decided to concentrate on it. In his report to her solicitors dated 25 March 1988 he commented:

"I must make it clear that I do not like having more than one
problem on my plate at any time, and if I am looking at the neck
I really try very hard to keep clear of the back, as otherwise
everyone gets so tangled up."

30. Dr Robson had a discogram carried out on 11 April 1986 which showed that C4-5 and C5-6 discs were imperfect. She was eventually admitted to Royal Canberra Hospital and on 29 January 1987 Dr Robson performed a fusion at those levels of the cervical spine. She recovered normally from that operation and was discharged on 4 February 1987.

31. After a period of about three months convalescence she made an attempt to return to work. She only lasted two or three hours. She found that her shoulders, arms, neck and back all began to hurt as soon as she started lifting.

32. On 15 September 1987 she was examined by Dr Dickson, the Commonwealth Medical Officer. Apart from the history about her neck, Dr Dickson records that lumbar back pain also developed in 1985, associated with pain in the right hip. His assessment was that she was unfit for continued employment in the position as a diet maid. He suggested a part time position with varied light duties. There were no light duties available.

33. Dr Gibson continued to review her condition. He recorded that after the operation she was not really much better. Some of the arm pain was improved. She then started complaining more of her low back pain and associated pain up and down the legs. He noted that she had been receiving physiotherapy treatment in July and August 1986 for her lower back pain. He commented that although her initial pain was for whiplash, the hyper-extension injury does apply to the whole spine and it is reasonable to link the two with her accident in 1980. He also considered it possible that the fall at Jindalee in 1979 may well have contributed to her spinal injuries. I am satisfied that it played no part.

34. On 24 February 1988 Dr Robson had a myelogram of her lower spine performed. The report indicates that the condition of L5-S1 needed further investigation by discography. There was a lot of posterior displacement which indicated that the further investigations should be undertaken.

35. On 20 April 1988 a discogram was performed. There was a definite irregularity in the interior of the disc at L5-S1. However the procedure was disappointing to him as a definitive investigation. He postponed the arrangements for an operation. On 18 July 1988 Dr Robson reported to the Commission for Commonwealth Employees Compensation about the investigations that he had then undertaken, which indicated to him that an operation would be reasonable. The plaintiff was hopeful that the surgery would help.

36. On 5 November 1988 at John James Hospital, he performed a discectomy and fusion at the L5-S1 level. She spent about ten days in hospital and about six weeks or more convalescing at home. Her evidence is that there was no improvement in her symptoms after that operation.

37. In February 1989 she was admitted to Royal Canberra Hospital with gastric problems, which are not related to this accident. At his review on 31 July 1989, Dr Robson found that the plaintiff was not comfortable around the lower back. The X-rays showed that the fusion was proceeding. In his report to Dr Gibson on 25 October 1989 Dr Robson reported that the symptoms showed some nerve root changes in the lower limbs but he was unable to be certain of the cause. He had more X-rays and a CAT scan taken. He discussed the problem with an American specialist. He began to think that the defective vertebra in the thoracic spine might be a cause of her diffuse non-specific low back ache. He discussed with the plaintiff an operation for straightening out that wedge. The plaintiff decided against that operation.

38. In November 1991 Dr Gibson summarised her position as follows:

"After all that surgery she wasn't much better. She still had
neck and back pain with pain radiating to the arms and legs.
Physiotherapy and anti inflammatory tablets didn't make much
difference and she developed gastric ulcers as a consequence. This
required a vagotomy and fundoplication.
At the moment she is much the same as two years ago, perhaps
slightly worse. She has pain in the neck and back with pain in the
legs and tingling in the toes (mainly R.). Surprisingly her range
of movement of the back is fairly good. There is some weakness of
hip flexion and extension. She has moderately severe persistent
headaches and insomnia requiring regular medication. She really has
no career possibilities or recreational activities. The attached
list of injuries and limitations would appear to be a reasonable
summary.
In summary Mrs Daley remains chronically disabled without any
likelihood of surgical or other treatment giving her relief."

39. The issues in this case do not revolve around whether that is an accurate picture of her present state. Obviously it is. The more difficult task is to decide to what extent her condition is attributable to the accident in 1980.

40. One of the doctors commented that the plaintiff was a poor historian. Having seen her give evidence, I think that is a fair comment. Her case would certainly be more straight-forward if there were a clear, consistent pattern of complaints of lower back pain over the period from 1980 to 1985. On the whole of the evidence there is no real history of any complaint of pain in that area before she saw Dr Gibson in April 1984. Despite the criticisms made of her, I think that there is a fairly consistent pattern of complaint about the lower lumbar area thereafter.

41. I do not accept that she was ever worried that she might lose her job if she told doctors what was wrong with her. I do not think she is being deliberately untruthful when she gave evidence that pain radiated from that area into her legs over the whole time. But I do not accept that evidence.

42. The evidence of Mrs Lee and Mrs Allen confirmed that she was suffering pain over the periods of which they spoke, but did not help to fix times or areas of complaint as far as the lower back is concerned.

43. I do think it is true, as she claimed, that she did not whinge about her complaints to the doctors, and even needed urging from her friends to consult them. She just got on with her job the best way she could.

44. The change from lighter work at Jindalee to heavier work at Woden is not a complete answer to the difficulty of the gap in the history of lower back pain, as that change took place in 1982, two years before her complaint to Dr Gibson. But I think she is the sort of person who would not always give a detailed and accurate list of complaints to a doctor. If she was not specifically asked about her lower back she might well have refrained from proferring the information.

45. Dr Danta's first report, in August 1985, dealt with the cervical whiplash injury, and attributed thoracic backache to what he thought was a traumatic crush fracture at T11 together with secondary postural changes. He did not deal with lumbo-sacral complaints.

46. He examined her again on 23 July 1992, for the purpose of giving evidence. He thought that the lower back surgery should not have been done. As he explained in evidence, this was not because there were no indications for it, but simply because it had not made things better. He did not comment in his reports or in evidence in chief on the relationship between the accident and the lumbo-sacral condition. In cross-examination he said that disc abnormalities are due to wear and tear, and cumulative, and that accidents contribute so much more. In that sense he thought that a head on collision could have contributed to the damage to the disc. He also thought that because the patient's pain increased after the operation it was clear that pain was not coming from the L5-S1 disc. However, he had not seen Dr Robson's pre-operation myelogram or discogram, and no one claims that every operation is 100 percent successful. Certainly, so far as the plaintiff was concerned, it was reasonable for her to undergo the operation.

47. But Dr Danta really only contributes to the question of causation, the concession that the accident could possibly have contributed to the pathology of the disc, if there were any.

48. Dr Robson also gave evidence. I accept his opinion that the pathology at T11 was a congenital defect, and not a traumatic burst fracture. It would not of itself have accounted for her neck and shoulder pain, or for the complaints of pain that she had in her lower back. He also confirmed that he really did not give his attention to the lower back until after the plaintiff had recovered from the neck operation. He had found clinical signs of nerve root involvement before the later operation, and had no doubt that the disc had been defective.

49. When he was questioned about the absence of complaints about the lower back for years after the accident, he commented that he would not put too much reliance on the absence of complaint of pain radiating into the legs. If there were no complaints to any medical practitioner until 1985 he would assign a lesser role to the accident in relation to the leg or back pain. But I think the heart of the matter is not whether she complained to doctors, but whether in fact she felt the pain. Despite all the criticisms, many of which I have already said I agree with, on reviewing the whole of the evidence I believe her when she says she did get pain in her lower back from soon after the accident. She told Dr Gibson about it in 1984. She told Dr Ferguson about it in 1985. I think that in those earlier years it was not a particularly serious problem to her, compared with her neck pain. As Dr Gibson commented in his 1988 report to the compensation authority, "Although her initial claim was for whiplash the hyperextension injury does apply to the whole spine, and it is reasonable to link the two with her accident in 1980."

50. Dr Gibson was not cross-examined.

51. Dr Ferguson took a careful and detailed history. He also thought that the accident caused subluxation and instability of her cervical, dorsal and lumbar spine. He was not cross-examined.

52. There is no evidence of any other trauma that might have caused the lower back problems.

53. The plaintiff was examined for the defendant by Professor Tracey on 16 November 1987 and 9 November 1990. There is not a word of his evidence from him to contradict those, or other, opinions.

54. I am persuaded that on the balance of probabilities the accident did result in the lower back pathology, and that the defendant is responsible for all the consequences.

55. Twelve or more years ago, at the age of only 40, the plaintiff was involved in this accident. She stoically tried as best should could to stay at work. She underwent the usual discomfort of the investigative procedures involved in spinal injuries on a number of occasions. She has fusion at two places in her neck and at the lumbo sacral joint. She continues to suffer pain and restriction of activity, and there is nothing that modern medical science can do to help her, other than give her medication to relieve her pain to some extent. She is now only 52.

56. For her pain and suffering I would award $65,000, of which $20,000 or so would relate to the future. For interest on the past component on the conventional basis I award $11,000.

57. On the basis of the findings I have made, all the out of pocket expenses are recoverable. The total is agreed at $19,105.68. They were paid by the Commonwealth, so that no interest is claimed.

58. An accountant's report has been tendered setting out calculations about economic loss. The assumptions on which it is based were not attacked. That shows that her loss of income to 31 January 1992 was $109,590. Bringing that figure up to date on the basis of a net wage of $414.81 gives a total of $123,278.73. She has received periodic compensation, and the difference between her loss and those payments is of the order of $50,000. She has been off work for about 7 years. I allow $24,500 for interest on the past economic loss.

59. The Fox v Wood component is agreed at $9,671.80.

60. She intended to work till age 65. The present value of $414.81 for 13 years at 3 percent is $232,554. Her general health, apart from the results of the accident, was not good. I think that there should be a significant discount on account of the possibility that she might well have stopped working before 65, or that she might well have had significant periods off work, in addition to the normal contingencies. I award $175,000 for future economic loss.

61. The total award is therefore made up as follows:

Pain and suffering $ 65,000.00
Interest 11,000.00
Out of pocket expenses 19,105.68
Past loss of income 123,278.73
Interest 24,500.00
Fox v Wood 9,671.80
Future economic loss 175,000.00
__________
TOTAL $427,556.21

I would round that sum off to $427,560. In view of her age, the length of time since the accident, and her disabilities, that sum seems reasonable as a global amount.

62. I direct the entry of judgment for the plaintiff in the sum of $427,560.