Denise Anne Bloomfield v Keith Albert Jantke [1987] ACTSC 83 (17 December 1987)

SUPREME COURT OF THE ACT

DENISE ANNE BLOOMFIELD v. KEITH ALBERT JANTKE
S.C. No. 1200 of 1984
Damages

COURT

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

CATCHWORDS

Damages - Personal injuries - no new matter of principle.

HEARING

CANBERRA
17:12:1987

ORDER

There be judgment for the plaintiff in the sum of $31,776.45.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 10 May 1979. The defendant has denied liability. At about 5.00 pm on 10 May 1979 the plaintiff was driving her motor vehicle in Dairy Flat Road and was stationary in a line of traffic at the intersection of that road and Fairbairn Avenue in the Australian Capital Territory. The defendant was the driver of another vehicle proceeding in the same direction as the plaintiff in Dairy Flat Road. He turned to speak to his passenger father and negligently drove his motor vehicle into the rear of the plaintiff's motor vehicle.

2. In a conversation with the defendant shortly after the accident, he identified himself to the plaintiff and it was an agreed fact on the hearing of the action that the defendant was the driver of the vehicle which collided with the rear of the plaintiff's motor vehicle. The defendant also gave evidence and in effect admitted his own negligence.

3. I am satisfied on the balance of probabilities that the accident was due to the negligence of the defendant in failing to keep a proper lookout, failing to stop and colliding with the plaintiff's motor vehicle at the said intersection. There was no allegation of contributory negligence.

4. Immediately before the accident the plaintiff had observed the defendant's vehicle in her rear vision mirror approaching her vehicle from behind. She put her foot on the brake and braced herself for the inevitable collision. She was wearing a seat belt. In the collision she was thrown forward on to the steering wheel and then back again, breaking the car seat. She got out of her vehicle unassisted and she and the defendant moved their respective vehicles to the side of the road. The conversation to which I have referred then took place. The plaintiff then drove to her parents' home at Watson. She was not feeling any pain at that stage but was very shaken. Her parents were not home so she let herself in and then broke down in tears. She noticed pain in her back, the left side of her neck extending up into the back of her head and across her shoulders. She noticed also a shooting pain in her leg when she tried to walk. She rang and made an appointment to see her general practitioner, Dr J.R. Clyde, the next day. She went to a friend's house for a time, then to the police station to report the accident, and then went home to her flat in Queanbeyan. She had taken some analgesics at her friend's home to ease the pain.

5. During the 20 minutes or so that she was at the police station reporting the accident, she felt uncomfortable and in pain. After she arrived home she had a very sore neck, back and left arm. She had a shower and obtained some relief, took more analgesics and went to bed, although she could not get comfortable.

6. The next day she consulted Dr Clyde as previously arranged. This was her only consultation with Dr Clyde for treatment of her symptoms arising out of the motor vehicle accident. He suggested that she try wearing a cervical collar and a course of physiotherapy. He prescribed digesics, but the plaintiff could not take them and took Panadol instead. She tried wearing the cervical collar for a few days but found it too awkward as it seemed to create more pressure on her neck and shoulders. Nevertheless she persevered for a couple of days. She took a week off work and attended physiotherapy at the Woden Valley Hospital for a few visits over the next few weeks. She returned to work about 17 May 1979.

7. Dr Clyde referred her to Dr R.J. Kitchin, orthopaedic surgeon. She first saw Dr Kitchin on 24 May 1979. Dr Kitchin stated in his report of 28 August 1979 that on physical examination the plaintiff was overweight. In regard to her cervical spine there was a restriction in extension because of pain. At the inter-scapula region there was a slight restriction in flexion. Rotation was satisfactory. There was no neurological deficit in the upper limbs. In regard to the lumbar spine the area of pain was in the mid lumbar region. There was a good range of movement, straight leg elevation was unrestricted but she experienced back pain. There was no neurological deficit in the lower limb.

8. Dr Kitchin ordered physiotherapy. He reviewed her again on 6 July 1979. She complained of continuing neck, shoulder, left wrist and back pain. On examination of the neck and back there was no change. X-rays taken on 6 July 1979 showed no abnormality in the cervical spine and apart from some minor degenerative changes in the lumbo-sacral levels, no abnormality in the lumbar spine. Dr Kitchin reviewed her in August, October and November 1979. She complained of continuing pains in her neck and back, particularly the neck, and pain across her shoulders. On physical examination she was found to have a good range of movement in all areas and there was no neurological deficit.

9. Dr Kitchin performed a manipulation of the plaintiff's head and neck under general anaesthetic at the John James Hospital in October 1979 but this did not bring about any improvement. She has had no other treatment in hospital. She had another course of physiotherapy at the Woden Valley Hospital for a few weeks in May/June 1983, otherwise she has had no further physiotherapy treatment. Dr Kitchin referred her to Dr Robson, neuro-surgeon, for consideration and investigation as to operative treatment and has not seen her since 27 March 1980.

10. She came under Dr Robson's care on 14 May 1980. His report states that she complained of pain in the neck and lower back spreading down the left leg and that in those respects she was no better than she had been 12 months ago. Dr Robson was not called to give evidence on behalf of the plaintiff but his reports to Dr Kitchin were tendered in evidence by the defendant. At his initial consultation he noted that the plaintiff was very much overweight at 100 kilograms and observed that she was twice the weight of an average person of her height. He reported that no treatment could have any prospect of success while she was carrying so much weight and indeed that any treatment would be a waste of time and money unless she was prepared to contribute by reducing weight.

11. He referred her to Dr Brian Goldrick for his expert help with weight reduction. As a result she had a gastric stapling operation by Dr McKeowan which caused sickness and other complications. She also developed an oesophageal hernia and it appears from other medical reports in evidence that she still gets a lot of abdominal pain. The treatment was of no benefit to her low back pain.

12. By the time she consulted Dr Robson again in July 1981 Dr Robson reported that she was much thinner, had lost most of her back pain and generally her life had turned around by her attention to her weight. Dr Robson said that there was no question of her needing any surgical treatment for her back or neck. In his report to the plaintiff's solicitors in February 1982 Dr Robson reported that there had been great improvement in the plaintiff's symptoms. In April 1982 she complained to Dr Robson of still getting discomfort around her neck under some circumstances. He explained to her the alternatives of putting up with it or having an operation. After proper investigation he reported that she was quite clear that she was not bad enough to wish to undergo any surgery.

13. The only other evidence of treatment prescribed for the plaintiff was by Dr John Corry, consultant in rehabilitation medicine, at the request of her general practitioner. He saw her on 2 June 1987. On examination Dr Corry reported as follows:

"She was an overweight woman of stated age. She was

frequently tearful during the interview. All movements
were carried out slowly, but her gait was even. She
had a slight lumbar scoliosis and there was depression
of the left shoulder and an increase in lumbar
lordosis. She appeared to experience discomfort when
preparing for examination. Movements of her cervical
and lumbar spine were moderately restricted and she had
marked muscle tension and tenderness in the
paravertebral muscles of her neck and lower back. I
could detect no other joint or neurological
abnormalities.
X-rays of her cervical spine of 11.5.83 appear within
normal limits."

14. Dr Corry said in his report of 11 June 1987 (Exhibit B) that treatment after such a length of time would be extremely difficult and that until her response to treatment and pain management counselling was assessed, he could not draw any conclusions about her ultimate prognosis. He has not seen her since that initial consultation.

15. She said in evidence that her course of symptoms in relation to her neck has worsened, the pain is there all the time and even little things set it off. The pain is in the neck up into the head and across the shoulders and down to the middle of her back. It has grown worse over the last four years but varies in severity according to activity. If she uses her arm a lot it causes the pain to be more severe. If she does hardly anything she can put up with the pain. In relation to her lower back the pain has got worse and radiates down her left leg. It is similar to the pain in the neck in frequency and severity. Her left arm feels heavy and aches and she gets tingling in the fingers. The pain is there all the time but the degree of severity varies.

16. She said in evidence that she is in pain every day and takes Panadol to control the pain. She takes Panadol every four hours but her intake depends upon the severity of the pain. On a good day she may take four tablets and otherwise up to 12 tablets per day. They do give her relief.

17. Apart from her physical complaints the plaintiff described herself in evidence as "very bitter, extremely bitter", quite depressed about the things that she cannot do any more, and that when she is depressed she eats.

18. The plaintiff claimed in evidence in chief that prior to the subject motor vehicle accident she had never had any difficulties with pain in her neck, back or arm. She said that she was very active and interested in horseriding, bush walking, 4-wheel driving, embroidery, sketching, walking and gardening. She claimed that since the accident she has not been able to walk long distances, although she has tried a bit of walking. Even after walking a distance of less than a quarter of a mile she experienced pain in the back and leg and had to sit down frequently. She also used to go dancing and considered herself to be a very good dancer. There was other evidence from Mrs Robyn Treacy that the plaintiff had been a good dancer before her motor vehicle accident. The plaintiff said it was now too painful in her back and neck for her to dance.

19. She tried sketching in 1984 but did not enjoy it. She felt pain in the neck and found that she could not draw properly. She tried camping in 1982 but it was too uncomfortable. So far as gardening is concerned, she found bending over caused the pain in her back to worsen.

20. Despite her problems since the accident, the plaintiff was married on 3 March 1984 and has two children born respectively on 1 January 1985 and 17 September 1986. The family moved to their present address in Queanbeyan in October 1985. It is a two bedroom house with a large garden, which was very overgrown when the family moved in. The plaintiff said in evidence that she has tried to assist in the garden by sitting on the ground and doing some weeding, but after ten minutes or so she develops back ache and has to rest. She has also tried sketching but found that it caused her pain after five or ten minutes. She does the dusting, washing, sweeping floors, makes the beds and does the cooking. She does the ironing when she is able and in this respect her mother helps. She manages the washing but her husband helps in carrying heavy washing baskets and hanging out the washing. Her husband bathes the children. The plaintiff has to be careful in lifting them as she gets pain in the back.

21. The plaintiff herself was born on 5 September 1951 (now 36 years). She had a good employment record prior to the accident. Upon finally leaving school in 1966 she worked at a pet motel looking after animals for four months, then as a shop assistant. In 1970 she commenced a one year enrolled nursing course at the Canberra Hospital. She completed that course and was awarded the appropriate certificates. She then worked at Morling Lodge Retirement Home for ten months looking after geriatric patients. Except for the first six weeks she performed night duty. She then went back to the Royal Canberra Hospital as an enrolled nurse and was there until 1974. She then applied for a position with the District Nursing Service. She was doing that job at the time of the accident. She liked the work very much. As mentioned earlier, she was off work for about a week and then resumed in her district nursing position. She found it difficult to cope, particularly lifting patients. She had odd days off because her back was hurting so much. Nevertheless she kept working until August 1984 by which time she was pregnant with her first child.

22. She suffered an injury to her back at work on 20 August 1984 when a patient slipped and the plaintiff tried to prevent her falling. In so doing the plaintiff hurt her back. She came to the realisation then that she could not go on nursing any more. She claimed workers' compensation which was granted and she was on workers' compensation until some six weeks before the birth of her baby. That six weeks was covered by maternity leave. She then took 12 months leave without pay and finally resigned in September 1985 "so they could employ someone permanently in my place".

23. It is quite clear on the evidence that the plaintiff has had a very substantial weight problem for a number of years prior to the subject accident in May 1979. Dr Clyde was treating her for excessive weight from 1976. At that time she was going to an organisation known as Weight Watchers. In October 1976 her weight was 13 stone 11 lbs and she was worried about it. Dr Clyde thought that her excessive weight was partly due to nervousness and tension. She was complaining of headaches and appeared to be under stress. After October 1976 Dr Clyde recognised that she had an intractable problem and referred her to Dr Goldrick, consulting physician, in the first half of 1980.

24. In cross-examination the plaintiff was asked whether she had a problem with obesity for many years before the accident. Her answer was to the effect that she was overweight for her height of 5 feet. She conceded that in 1976 she was about 12 stone, was 11 1/2 stone at the time of the accident and was attending Easyslim to reduce weight.

25. I have already referred to the plaintiff's claim in evidence in chief that prior to the subject motor vehicle accident she had never had any difficulties with pain in her back or arm. However, later in her evidence in chief she revealed that in 1978 she had suffered a back injury in the course of her work as a district nurse. She said that she had been lowering a very heavy patient into a wheelchair and the patient just suddenly put her whole weight on to the plaintiff and the plaintiff just "put my back out a bit". She said that "it just ached for a little while and that was it". She said that she had no continuing problem with it until the motor vehicle accident in 1979.

26. She was asked about that incident in cross-examintion and about whether she had ever had any trouble with her back before that incident in 1978. She said that she had not suffered anything of any consequence and added "I do not think there is a nursing sister alive who has not strained her back at some stage". She agreed that there were occasions when she had some back strain which had taken her off work. She denied that prior to the motor vehicle accident she ever had pain in the neck or shoulders.

27. It is clear from the records of the Capital Territory Health Commission that before the subject accident the plaintiff did sustain a back injury at work which she described in her claim for compensation as a lumbo-sacral strain. The incident occurred at about 9.30 am on 3 April 1978 and caused her to stop work until 7 April 1978. On 10 April she was seen by her own doctor who diagnosed a torn back muscle. She was put off work for complete rest until 25 April 1978.

28. The plaintiff did not disclose this prior back incident to any of the medical practitioners whom she consulted for treatment, nor did she disclose the prior incident to Dr Richard W. Haber, consultant physician, or Dr J.W. Shand, consultant psychiatrist, who examined her separately on behalf of the defendant on 21 September 1987.

29. More significantly, so far as her present symptoms are concerned, is the fact that the plaintiff sustained the further injury to her back in the course of her employment on 20 August 1984 to which I have already referred. On that occasion the plaintiff was lowering a patient into a bath when she slipped. She found it extremely difficult to hold the patient without letting her go and it caused the plaintiff a lot of pain to stop the patient from falling. She made a claim for compensation in relation to an injury to her back which she described in the claim as "acute back strain". She was unfit for work as a result of the injury and was paid compensation until 25 September 1984. She then went on maternity leave prior to the birth of her first child on 1 January 1985. She has never resumed work. She said that the incident made her realise that she could not go on nursing any more.

30. Before the subject accident she consulted Dr Clyde for skin problems, viral infection with nausea, headaches and nausea. He said in evidence that those symptoms indicated that she was very likely genetically predisposed to stress reactions.

31. It is also clear that after the accident and before she saw Dr Goldrick in the first half of 1980 her weight dramatically increased. By May 1980 she weighed 15 stone 10 lbs. She consulted Dr Clyde for various problems after the subject accident up until the referral to Dr Goldrick and thereafter none of her complaints related to her neck or back except on 5 November 1979 by which time her neck and back had been manipulated by Dr Kitchin with indifferent success.

32. It was submitted on behalf of the plaintiff that the motor vehicle accident is the cause of the plaintiff's present symptoms. Reliance was placed upon the report of Dr Gytis Danta, neurologist, who examined the plaintiff at the request of her solicitors on 31 July 1985. He also gave evidence on behalf of the plaintiff. He has not seen the plaintiff professionally since that initial consultation.

33. I do not regard Dr Danta's evidence as sufficiently determinative of the issue whether the plaintiff's present complaints are due to the motor vehicle accident on 10 May 1979. As indicated above, he only saw her once at the request of her solicitors on 31 July 1985. He was not given any history of the prior back injuries in 1978 and 1984. The significance of his evidence is that soft tissue injuries to the back sometimes do not spontaneously resolve over a period of time. The patient becomes depressed, pain becomes established as a permanent thing and hence the patient acquires a chronic pain syndrome.

34. It was also submitted on behalf of the plaintiff that prior to the accident on 10 May 1979 the plaintiff was a very active, happy person with a wonderful zest for life. Reliance was placed upon the evidence of her good friend Mrs Robyn Treacy who knew her well before she herself went abroad in 1978. I have some difficulty in accepting Mrs Treacy's evidence without qualification. It does not sit comfortably with the evidence of Dr Clyde, the plaintiff's general practitioner, to the effect that before the accident the plaintiff was consulting him from 1976 for excessive weight, nervousness and tension, and headaches. As stated above, he formed the opinion that before the accident the plaintiff was very likely genetically predisposed to stress reactions such as headache, migraine and nausea.

35. That she has some personality disorder which manifests itself in expressions of anger and aggression emerges from the evidence of Dr William Knox, consultant psychiatrist, who had consultations with her on 18 February 1986 and 25 February 1987 at the request of her solicitors. His most recent report expresses his belief that the plaintiff is genuinely in pain due to spinal injury but on account of some underlying vulnerabilities in her personality and chronic anxiety and depression, she over-reacts to the organic pain present. He said that given the level of emotional arousal shown by her at interview, it would be surprising if her depression and anxiety did not work to amplify the organic pain present.

36. Dr Shand noticed the same aggressive tendencies during his examination on behalf of the defendant on 21 September 1987. He described her behaviour during the consultation as persistently resentful and querulous.

37. This same quality was exhibited by the plaintiff when she gave evidence. She presented as an aggressive and angry person. The objects of her anger include the defendant for causing the accident in the first place, the medical profession for the failure of the stomach stapling operation to bring about and maintain weight loss, the course of the litigation itself in being required to submit herself to medical examinations on behalf of the defendant, thereby having to mention her pain and thus undo her rehabilitation, and the further failure of the medical profession to provide her with rehabilitation therapy earlier than it did.

38. Having regard to all these matters and particularly the plaintiff's demeanour, I am satisfied on the balance of probabilities that she did suffer some physical injury of a soft tissue type to her neck in the subject accident. But I have reached the conclusion that she has greatly exaggerated her symptoms. At least some of her back symptoms as opposed to her neck symptoms, are not causally related to the subject accident. They are more probably due to the two back accidents in 1978 and 1984 respectively, her two pregnancies since the accident, which are likely factors according to Dr J.W. Shand, her excessive weight, and her susceptibility to stress. I am not satisfied that any of her continuing symptoms are sufficiently real that they can be related to the subject accident. I think that any real symptoms as a result of the subject accident must have abated by July 1981 when Dr Alistair Robson reported that she needed no further treatment, and certainly by April 1982 when he reported that her symptoms were not bad enough to warrant any surgical intervention and that she should simply put up with her symptoms and continue life in the ordinary manner.

39. For pain and discomfort, loss of enjoyment of life, and all the other matters I am required to take into account on the question of general damages, extending over a period of about three years, I provisionally assess the sum of $30,000.

40. The plaintiff's out of pocket expenses were agreed at $1,776.45, which includes $306 for current treatment by Dr Corry.

41. The plaintiff has not established any claim for past economic loss. She gave up work following the incident at work on 20 August 1984. The incident caused the plaintiff a lot of pain, she was pregnant at the time and worried about how such incidents could affect her pregnancy. Since then she has been fully involved with her family and in particular her two very young children. They are the reasons that she has not gone back to work since 20 August 1984. Those reasons have nothing to do with the motor vehicle accident on 10 May 1979.

42. So far as the future is concerned, the plaintiff said in evidence that she would like to have another child and when all her children were in school she would like to take a part-time nursing job which would enable her to be at home when the children came home from school. Then, when the children were fully established at school she would like to go back to full-time nursing. No doubt those are still her aspirations and she might even achieve them. If she fails to achieve them it will not, in my judgment, be due to any residual symptoms from the motor vehicle accident on 10 May 1979.

43. There will be judgment for the plaintiff in the sum of $31,776.45. I shall hear counsel on the question of costs.