Sandra Louise Spencer v Australian Capital Territory Schools Authority [1987] ACTSC 58 (21 August 1987)

SUPREME COURT OF THE ACT

SANDRA LOUISE SPENCER v. AUSTRALIAN CAPITAL TERRITORY SCHOOLS AUTHORITY
S.C. No. 46 of 1986
Damages

COURT

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

CATCHWORDS

Damages - claim for personal injuries - no question of principle.

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

HEARING

CANBERRA
21:8:1987

ORDER

There be judgment for the plaintiff in the sum of $96,526.74.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in the course of her employment by the defendant on 20 March 1985. The plaintiff was injured when a venetian blind fell and hit her around the head and shoulders as she was attempting to adjust the slats of the blind. Liability in the action was admitted and the hearing was limited to the assessment of damages.

2. The plaintiff is a married woman age 45 years, having been born on 23 September 1942 in the United States of America. She was educated to college level, which is the equivalent of the higher school certificate, and in 1960 she commenced work for an insurance company, having studied clerical and typing work during the course of her college education. She continued in that employment until 1966 when she met her husband-to-be, married and migrated to Australia. There are three children of the marriage - William, born on 15 December 1970; Garry, born 22 February 1972; and Cassandra, born 27 September 1974. The plaintiff and her husband and their three children live in a southern suburb of Canberra.

3. The plaintiff worked for one year in Australia and had six months back in her employment with the insurance company in America before she and her husband came to Canberra in 1970. They came to the A.C.T. prior to the birth of the first child.

4. During 1980 the plaintiff was working as a counsellor for the Parents' Support Service, a voluntary organisation, and she was then offered employment as a Braille translator with the defendant. She took up that offer and received on the job training, which meant that she was really teaching herself the job. Her main function was transcribing the school curriculum into the Braille language. She did this on a Braille machine which was operated manually. The machine was produced during the course of the hearing. It is a machine about half the size of a standard manual typewriter and has six keys. The evidence is that they are very heavy to operate, much heavier than a typewriter. In addition to using the machine, it was the plaintiff's duty to prepare tactile representations of pictures and maps for children between the ages of 12 and 16 years. She was working a full working day from about 8.30 am until about 3.30 pm. She enjoyed the work and was looking forward to further training in Melbourne.

5. The accident happened on 20 March 1985 at the Lyneham High School. When she was hit by the blind the plaintiff felt pain shooting up the righthand side of her head. She does not remember the ambulance ride to the hospital but remembers X-rays being taken and a doctor being present. She found that the light hurt her eyes. The medical staff were putting a collar on her neck. She was frightened because her right hand seemed to be curled up and her neck was hurting. She could not feel her right arm, which seemed to be numb.

6. After about four to six hours at the hospital her husband took her home and she went to bed. She was vomiting a lot that day and for the next few days. Her general practitioner Dr Rea treated her in that period. She also noticed that she had a sort of stutter and thought that she could not get her words out properly. She was about four weeks in bed and gradually became mobile again. She returned to work on 29 April 1985 but only lasted two days and ceased work again on 30 April 1985.

7. She remained under the care of her general practitioner, Dr Rea, who referred her to Dr Gytis Danta, consultant neurologist, whose reports of 21 July 1985, 14 April 1986, 22 August 1986 and 14 July 1987 were in evidence. At the initial consultation with Dr Danta on 14 May 1985 the plaintiff complained of pain in the neck and right arm and numbness of the right hand. On examination neck movements were full but there was tenderness in the deep structures on the right side. There was no muscle weakness or wasting but the right biceps and supernator reflexes were reduced compared to those on the left side. There was some numbness over the right thumb and adjacent part of the hand on front and back. Otherwise Dr Danta found no abnormal neurological signs. He diagnosed the clinical signs as being those of a right C6 nerve root lesion. He prescribed physiotherapy and suggested that she not go back to work until she felt that the condition had sufficiently settled for the work not to aggravate the pain.

8. When he reviewed her on 11 June 1985 she was somewhat better but still not fit enough to return to work and use the heavy Braille keyboard machine. He encouraged her to continue physiotherapy. Dr Danta reported that although the condition was improving, it was possible that ultimate recovery would be delayed and said it was difficult to predict how long it would take for her to improve.

9. In his report of 14 April 1986 Dr Danta stated that he had seen the plaintiff again in early August 1985. At that time her root irritation symptoms had settled fairly satisfactorily and she was thinking about going back to work. She had developed several episodes of visual blurring and Dr Danta referred her to Dr Tom Walker, whose locum reported on 20 August 1985 that the plaintiff had a condition of slight presbyopia and that the glasses which he prescribed had been precipitated by the head injuries sustained. He went on to say that she would have ultimately required reading help in any case and that only the first pair of glasses would be compensable.

10. Returning to the reports of Dr Danta, he stated that he reviewed the plaintiff on 24 September 1985 when she said that she was gradually getting better, had had her ups and downs and that recently there had been a flare-up of the pain in the neck and heaviness in the right arm.

11. The plaintiff had returned to work on 16 September 1985 on a part-time basis and continued to work until the Christmas school holidays. She returned to work part-time on 27 January 1986 but only lasted a few days because as she put it "my right arm collapsed on me". In those few days she worked on the Braille machine. Her neck and shoulder were also affected. She has never resumed work since that date.

12. Dr Danta had referred the plaintiff to Mrs K.T. Tapsall, occupational therapist, for muscle relaxation exercises. Dr Danta saw her again on 27 February 1986. On examination there was weakness of extension of the right wrist and fingers, numbness over the outer shoulder and the right forearm and thumb and forefinger but also along the ulnar side of the right hand, the biceps and subnator reflexes on the right were slightly depressed compared with those on the left. Neck movements were slightly limited by muscle guarding and there was tenderness in the neck particularly on the left side. There was also diffuse tenderness about the left scapular.

13. Dr Danta encouraged her to continue with physical treatment since the spreading pain was no doubt due to musculo-skeletal complications and excessive muscle contraction. He arranged for her to have nerve conduction studies of the right arm and a CT scan of the cervical spine. At that time Dr Danta noted that she would continue with some pain and some disability for a long number of years, if not indefinitely.

14. When he saw her again on 13 July 1987 the plaintiff was depressed and complained of pain all the time, increasing with various physical activities. On examination neck movements were full. There was limitation of flexion of the back and straight leg raising was limited to 75 degrees bilaterally. There was tenderness in the lumbar region and also at the back of the neck but not elsewhere. There was inconstant weakness of the muscles of the right arm without any reflex change or muscle wasting. There was impairment of pain appreciation over the entire right side of the body. Vibration sense was felt less well in the right arm and neck than on the left. Reflexes in the legs were normal. At that time Dr Danta thought the prognosis was very poor indeed.

15. Dr Danta also gave evidence on behalf of the plaintiff. He expanded the contents of his reports in evidence. He explained that the inconstant weakness of the muscles in the right arm referred to in his report of 14 July 1987 was due to the non-cooperation of the plaintiff on account of her depression. He said that she was very depressed at the time and this gave her a very poor prognosis. So far as future treatment is concerned, he said that he would recommend that physiotherapy continue and that the plaintiff obtain counselling from a pain clinic such as that conducted by Dr Corry or the Woden Valley Hospital. He thought that the plaintiff's depression had to be cleared and a more positive attitude achieved. If that could be brought about and if she could work in such a way as not to aggravate her physical pain, she should be encouraged to do so.

16. Returning to the evidence of the plaintiff, I accept her evidence that when she was working part-time between September 1985 and the Christmas school holidays her neck and shoulders were sore and she found the hours long although she was not working with the Braille machine in that period. I also accept that she improved over the Christmas period but when she resumed work, this time at the Mt Taylor Primary School, and started to use the machine it was too much for her and she lasted only a few days.

17. She underwent a lot of treatment during 1986 after she had ceased work for the last time. She tried muscle relaxation with the occupational therapist, a Feldenkrais course over one weekend, hydrotherapy which she has continued up to date, faith healing and physiotherapy. She was not improving and she became very depressed, so much so that in mid-1986 her general practitioner, Dr Rea, suggested that she consult a psychologist. About two months ago she commenced meditation because she thought it might help. She has found it to be beneficial, helping to clear her inner self and relieve her tension. Her own assessment given in evidence is that her condition levelled out about four months ago and she is now trying to get herself to the state where she can go back to work. She still gets depressed particularly when physical activity causes her right arm and neck to flare up.

18. I am satisfied that her social activities have been severely affected by her injuries. For instance, she used to go square dancing two to three times per week. She has tried dancing since the accident but found that it aggravated her symptoms. Clerical tasks have proved difficult from time to time and although she has tried to use the Braille machine she has found that her shoulder and right arm are aggravated by that sort of use. She takes Tryptanol for sleep and depression and other medication for the pain. Her sexual relations with her husband have deteriorated because of the strain on her shoulders and neck. She wears a cervical collar when travelling on a bus or as a passenger in a motor vehicle but not otherwise.

19. She said in cross-examination that she thinks she still has a long way to go but she does hope to get back to work. I formed the impression that the plaintiff was genuine in her desire to get back to work and that she might become more resolved to cope stoically with her shoulder and neck pain after the completion of this action and her workers' compensation payments cease.

20. Although Dr Danta has undoubtedly been the plaintiff's treating specialist, she was referred by her solicitors to Dr J.R. Corry, consultant in rehabilitation medicine, first on 8 July 1986. Dr Corry's reports of 13 August 1986 and 4 August 1987 were in evidence and he also gave evidence on behalf of the plaintiff. It is unnecessary to set out the contents of the reports. It is sufficient to observe that after his first examination of the plaintiff Dr Corry thought that with further treatment in the form of counselling, relaxation training and physical therapy, her symptoms should have been considerably improved and that she should then have been able to return to work say in three to six months.

21. In his second report following his review of the plaintiff on 20 July 1987 he diagnosed her as being chronically anxious with a poor prognosis and expressed the opinion that spontaneous recovery was unlikely. In his oral evidence Dr Corry repeated that there is a fairly high anxiety component in the plaintiff's disablement and that this aspect of her treatment has not really been addressed. He said that her return to work depends upon her response to counselling. He said it was in her hands to understand her problem and with a fair bit of encouragement and explanation she could do so although she may not respond well.

22. Dr Edwin Cassar, consultant physician, examined the plaintiff on behalf of the defendant. He arranged for thermography to assist in verification of the plaintiff's complaints. Put shortly, the result of those tests and the opinion reached by Dr Cassar were that there is no clinical reason for the plaintiff's pain. The purpose of thermography was to determine focal areas of heat which might suggest some soft tissue injuries in those areas. Thermography did in fact confirm some soft tissue injuries but not sufficient to warrant the plaintiff's complaints in Dr Cassar's opinion. However, he conceded that there is no question that the plaintiff has soft tissue injuries in the right neck, shoulder, arm and back. He could not accept that loss of sensation in the right arm consistent with a neck lesion had been objectively established.

23. Dr Colin J. Andrews, consultant neurologist, examined the plaintiff on behalf of the defendant on 15 August 1986 and 23 July 1987. His reports of 20 August 1986 and 27 July 1987 were in evidence. In his first report he stated that on clinical examination there was a good range of movement in the neck, there was some numbness in the right hand and arm to the upper arm region, tendon reflexes were all normal. He could find very little to suggest any cervical problems and could see no reason why she should not be able to resume her former employment.

24. In his report of 27 July 1987 he adhered to that view and said that her symptoms were purely functional. He again expressed the belief that she was fit to return to work.

25. The fact that the plaintiff's symptoms are functional does not mean that she is malingering. She needs gentle persuasion that she can overcome the injuries which have kept her off work for so long. There are signs that she is coming to this realisation particularly in the very last part of her evidence in response to questions from the Court. I do not think that she has been malingering to date. I am satisfied that she would like to get back to work and that eventually she will do so. For pain and suffering, loss of enjoyment of life and all the other matters that I am required to take into account on the question of general damages, I provisionally assess the sum of $17,500 under this head of damages.

26. Her past wage loss to date is agreed at $27,152.75 net but she has been paid weekly workers' compensation to date of $23,327.24. The difference for interest purposes therefore is $3,825.51. The Fox v. Wood component, namely the income tax paid by the plaintiff on workers' compensation payments, is agreed at $3,829.82. Her out of pocket expenses are agreed at $4,244.17. I am satisfied that the plaintiff has been incapacitated for work to the present time and I provisionally assess the agreed figures for loss of wages to date, Fox v. Wood and out of pocket expenses.

27. The prophecy which the court has to make is when the plaintiff will get back to work. I am satisfied that she will do so not later than three years from today's date. I think it is probable that she will return to work before that date. It is agreed that if the plaintiff was able to work at the present time her salary would be $264 per week net.

28. With regard to the future, the sum necessary to compensate the plaintiff now for a loss of earning capacity at the rate of $264 per week net for the next five years on the usual terms is $64,152, for four years $52,008 and three years $39,600. I take into account in assessing damages for loss of earning capacity that even though the plaintiff may get back to work, as I think she probably will, within three years, she could still be incapacitated again after she resumes work on account of the shoulder and neck conditions caused by the subject accident. There is a risk of that occurring.

29. In all the circumstances, taking account of that risk and allowing for the vicissitudes of life in the next three years, I provisionally assess the sum of $35,000 for loss of earning capacity.

30. I am satisfied that she will continue to need physiotherapy treatment at a cost of about $18 per week for the next two to three years. I provisionally assess the sum of $3,000 under this head.

31. The cost of medication for five years at $2 per week rounds off at $500 and I allow this figure.

32. There is a claim for damages on the principles enunciated in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. I am satisfied on the evidence that in the initial period after the accident the plaintiff's husband and children performed voluntary domestic services for which expense might reasonably have been incurred. The period I allow is five weeks at five hours per week at the agreed reasonable rate of $8 per hour. I provisionally assess the sum of $200. To this sum there should be added some amount for provision of domestic services over the last two years. I calculate this figure at the rate of two hours per week at $8 per hour, which yields a figure of $800 per annum and I therefore add the sum of $1600 under this head. Allowing for the future, I allow another $500 making a total of $2,300 for voluntary domestic services.

33. There was also a claim for loss of superannuation benefits in the event that the plaintiff resumes employment with the defendant or some other Commonwealth instrumentality, that her neck and shoulder conditions are certified as conditions for which she would not be entitled to superannuation and that those conditions will become disabling so that she is retired from employment but without superannuation benefits. I think there are so many contingencies in that hypothesis that any damages for the risk that she will lose superannuation in those circumstances is too remote and I make no allowance under that head.

34. For the purposes of interest I apportion $12,000 for past general damages and $5,000 for the future. To the proportion for past general damages I add the wage loss which in round figures is $4,000. I calculate interest at the rate of 14 per cent and then halve the result in accordance with the usual method of calculating interest on past general damages and economic loss, which yields in round figures the sum of $3,000. I provisionally allow that sum.

35. My provisional assessments therefore are:

General damages $17,500.00

Past economic loss 27,152.75

Fox v. Wood component 3,829.82

Agreed out of pocket expenses 4,244.17

Future economic loss 35,000.00

Future physiotherapy treatment 3,000.00

Future medication 500.00

Voluntary domestic services 2,300.00

Interest on past general damages
and loss of wages 3,000.00
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Total $96,526.74
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Having considered this figure as a global sum, I confirm my provisional assessments.

36. There will be judgment for the plaintiff in the sum of $96,526.74. I shall hear counsel on the question of costs.