Johanna Maria Hengst and Johannes Hengst v Frances Mary Egan [1987] ACTSC 85 (18 December 1987)

SUPREME COURT OF THE ACT

JOHANNA MARIA HENGST and JOHANNES HENGST v. FRANCES MARY EGAN
S.C. No. 1442 of 1986
S.C. No. 1856 of 1986
Negligence - Damages - Evidence

COURT

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

CATCHWORDS

Negligence - motor vehicle accident - failure by defendant to see plaintiff's vehicle, failure to giveway and travelling too fast - contributory negligence of plaintiff - no new matter of principle.

Damages - motor vehicle accident - two fractured ribs and various cuts and bruises - allegation of intercostal neuralgia - no causal connection between continuing pain and original injury - effect of personality of plaintiff on recovery time - no new matter of principle.

Evidence - credibility of plaintiff as witness - assessment of genuineness of complaints - no new matter of principle.

Adelaide Stevedoring Co. Ltd. v. Forst [1940] HCA 45; (1940) 64 CLR 538

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

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

HEARING

CANBERRA
18:12:1987

ORDER

There by judgment for the plaintiff Johanna Maria Hengst in the sum of $19,944.00.

The defendant pay the plaintiff Johanna Maria Hengst's costs till 23 October 1987 and the plaintiff pay costs from that date.

There be judgment for the plaintiff Johannes Hengst in the sum of $1,766.00.

The defendant pay the plaintiff Johannes Hengst's costs.

DECISION

These two claims for damages were heard together by consent. Johanna Maria Hengst sues for damages for personal injuries sustained as a result of a collision between a car driven by her and a car driven by the defendant on 30 April 1985. Johannes Hengst, the husband of Mrs. Hengst, sues for damages for loss of consortium consequent upon the injuries to his wife.

2. Mrs. Hengst, whom I shall call the plaintiff, was driving north in Northbourne Avenue towards her place of employment at Mitchell at about 7.05 a.m. She was approaching the intersection with Girrahween Street. It was a fine, clear day. The traffic conditions were medium to heavy. Northbound traffic is divided from southbound traffic by a wide nature strip. Traffic in each direction is divided into three lanes, but about 100 metres or less south of the intersection an extra lane for northbound traffic turning right is cut into the nature strip. Girrahween Street is much narrower and bears a single lane of traffic in either direction, east and west. There are some sparse trees on the nature strip and, in my opinion, there is no significant impediment to the vision of a driver proceeding north towards the intersection. It is well known that the intersection with Girrahween Street is about a kilometre or so north of the centre of Canberra, and that there are a number of intersections in that part of Northbourne Avenue which are controlled by traffic lights. This intersection is not one of them. There is, however, a Give Way sign for westbound traffic in Girrahween Street at the intersection with the northbound carriageway of Northbourne Avenue.

3. The plaintiff said in her evidence that she saw no cars at all in Girrahween Street as she approached the intersection at 60 kilometres per hour, just under the speed limit. She spoke of a collision with another car which struck her car on the driver's door. She said that by the time she saw the other vehicle it was too late and the other vehicle was too close for her to do anything. As a result of the collision the plaintiff's vehicle finished on the northwestern side of the intersection, facing the opposite way. The defendant's vehicle finished up in the same vicinity.

4. A Ms. Fallow, who happened to be a workmate of the plaintiff, gave evidence. She was travelling in the middle lane on Northbourne Avenue, a few car lengths behind the plaintiff. As she approached the intersection she noticed a car which she thought was travelling "too fast" in Girrahween Street crossing the southbound carriage of Northbourne Avenue in a westerly direction. It did not slow down as it reached the intersection with the northbound carriageway of Northbourne Avenue and there was an impact between the two vehicles. She assisted the plaintiff to get out of her car by the passenger's door. The driver's door could not be opened.

5. The defendant did not give evidence but in a statement to the police she said that she "just did not see the other car". The statement as a whole is consistent with her having some retrograde amnesia. She offered an explanation that her vision might have been obstructed by trees but I reject that.

6. The defendant was clearly guilty of negligence in failing to see the plaintiff's vehicle, failing to give way at a Give Way sign and travelling too fast. Contributory negligence is alleged in that the plaintiff failed to keep a proper lookout. It may be observed that the plaintiff failed to give way to her right, but that was not relied upon as a particular of contributory negligence. I am quite satisfied that she was careless in failing to see the defendant's vehicle. It was perfectly obvious to Ms. Fallow. The question is whether her failure to see the other vehicle contributed to the collision. It is trite to say that a motorist is entitled to expect that to some extent other motorists will abide by the rules of the road and exercise reasonable care and it may be that generally speaking drivers proceeding north in Northbourne Avenue might be entitled to expect that westbound traffic in Girrahween Street will pull up at the Give Way sign. On the other hand, on this particular occasion Ms. Fallow observed the defendant's vehicle from a considerable distance of at least fifty metres and formed the view very quickly that the defendant's vehicle was travelling too fast in the circumstances. If the plaintiff had made that observation as she should, she would, as a reasonable driver, have taken the next step of at leat easing her speed so that if it appeared at a later point of time that the defendant's vehicle was not reducing speed, as was in fact the case, she could have applied her brakes. The evidence suggests also that it would have been safe for her to swerve into the middle lane. In my view the plaintiff's lack of care for her own safety made a positive contribution to the collision, although it is greatly outweighed by that of the defendant. I think it just and equitable in the circumstances to reduce the plaintiff's damages by 7.5% for contributory negligence.

7. The plaintiff told the police when they arrived on the scene that when she got out of the vehicle she felt severe bruising on her chest. She had sore ribs as well as various cuts and bruises. She was taken by ambulance to the Royal Canberra Hospital and x-rayed but discharged after an hour and a half. She was told to go to work but she declined to do this and went and saw her local practitioner, Dr Greenhalgh. He prescribed some anti-inflammatory and sedative tablets. The plaintiff did not return to work that day or since. She said she was very painful over the next few days and "sat up mostly". Exactly what her symptoms were are not clear. Her main problem was "sore ribs", she could hardly lift her right arm. She said she stabilized after a few weeks, continuing to suffer the same sort of pain. Her condition remains the same. She said in her evidence in chief that she cannot return to her work at the Sterilizing Unit of the ACT Health Authority at Mitchell because it involves lifting. She says that although she has restriction in her right arm she has pain and tenderness in an area on her right side which she indicated as being approximately under the right breast and extending more or less from the waist to under the armpit. She says that if she lifts or carries or indeed uses the right arm at all, she suffers for it subsequently by pain in the area on her right side. All this prevents her from driving a car, carrying shopping in the right hand, chopping up vegetables, vacuuming the house and the like. She says that she is able to carry out "light duties" around the house such as a little dusting, little cooking and hanging up small items on the clothes line. She says that her social life has been grossly disrupted and despite attempts she is unable to go dancing as she used to. She claimed to have been a very keen and active swimmer and has had to abandon that also. She further claims that her sexual life has been drastically affected and that intercourse with her husband occurs only once a week whereas immediately before the injury, it was four or five times a week. She says that she cannot sleep on her back. She tried a TENS machine for a minute a day for about two months but she claimed that it aggravated the pain.

8. The plaintiff sees a Commonwealth Medical Officer every two months and her local practitioner more frequently, because she needs a certificate from him to produce to her employer. She continues on worker's compensation. It appears that about six months ago arrangements were made, or at least a suggestion was made, for her to be provided with clerical duties for four hours or so per day and she says that she supposes she could do it, but would have to try it out first. She says that she has not attempted light duties in her own area previously because none have been made available to her. This is to some extent in conflict with her earlier statement that she has never felt well enough to go back to work and "just couldn't do it".

9. The plaintiff was not an impressive witness in chief and was an easy target in cross-examination. She had claimed in her evidence-in-chief that she was in prior good health before the injury. In cross-examination she soon conceded that she had not told the whole truth in this regard, and that she had kept material matters from the Court in an effort to maximise her claim for damages.

10. The plaintiff also called her daughter and husband to give evidence. Similarly they were not impressive witnesses. On several significant matters their evidence conflicted with that of the plaintiff and I am quite convinced that the plaintiff has substantially exaggerated the extent of any disability or symptoms she has and further that the two witnesses substantially exaggerated the extent of any complaints she makes or any apparent disability that she exhibits.

11. On the other hand, I do accept the evidence of Mrs. Antonia Berron, a sister of the plaintiff, who, I think, accurately recounted what she has observed of the plaintiff's complaints and disabilities. That is not to say, however, that the plaintiff has not presented an exaggerated picture of her symptoms and disabilities to the observer. I think that she probably has. At any rate Mrs. Berron said, and I accept, that the plaintiff had had a good deal of illness prior to the accident in question, including some sort of indisposition which led to an hysterectomy in June 1984. According to Mrs. Berron's observations the plaintiff improved somewhat after that. However, the employment and medical records in the case, although not in evidence, were put to the plaintiff and she agreed that she had lost about three months from work in 1983 and taken maximum sick leave entitlements ever since 1977. According to Dr Greenhalgh, who gave evidence, the plaintiff was suffering from emotional stress and depression, including emotional stress at work, and was on anti-depressant medication and the like at the time of her accident. In 1981 she had had difficulties with her right shoulder and neck, although she claimed that the pain in the shoulder was not associated with pain on the side. In 1983 she had more pain in her back and the top of her chest as a result of which she lost time from work and was prescribed a variety of medications. She agreed that over the two years or so in 1983 and 1984 she had taken such medication and that she had lost a lot of time from work as a result of insomnia and emotional problems. She also agreed that since the injury, about a year afterwards, she had an accute back strain which brought on symptoms in the middle of her back which were similar to pain which she had on bending and lifting for years, although not continuously. According to the evidence of Dr Newcombe the plaintiff had been suffering for some years from a degenerative condition in the thoracic spine.

12. The plaintiff's claim for damages was based upon what was termed "intercostal neuralgia" which I understand to mean pain in between the ribs. Her injuries were fractures to the sixth and seventh right ribs. The fractures were undisplaced and united without complication. When she did not appear to be recovering as expected, Dr Greenhalgh referred the plaintiff to Dr Kathleen Tymms, a rheumatologist. But Dr Tymms saw the plaintiff only once, on 11 October 1985. There were apparently some x-rays of 4 September 1985 which Dr Tymms saw. These x-rays showed uniting but not entirely consolidated fractures with "a lot of bone callus". Dr Andrea, a consultant surgeon who saw the plaintiff on behalf of the defendant, arranged for some x-rays to be taken on 30 January 1987 and although there was an abnormality in the nature of scarring seen at the base of the left lung with some degenerative changes in the thoracic spine, nothing was seen of significance in the right rib area. The fracture sites could not be detected. Dr Andrea concluded that the plaintiff has completely recovered physically from the rib fractures. Dr Arnold Mann, a consultant general surgeon, was of the same view, as was Dr Colin Andrews, a consultant neurologist. Dr Mann and Dr Andrea both gave evidence which I found entirely convincing. Each of them said that they had never heard of a case where a person suffered from continuing effects of rib fractures so long after the event. Dr Mann qualified this by referring to another case where a similar claim was made which he clearly did not accept.

13. The plaintiff's claim was not based on any suggestion that she suffers from depression or any emotional or mental condition which followed the injury and occurred as a consequence of it. It was nevertheless submitted that the plaintiff was a person who, because of her emotional background, was more susceptible to symptoms of pain and longlasting effects which would have resolved in a person of a different nature. The difficulty with the submission, however, is that from a physical point of view there is simply no basis for the plaintiff's continuing pain at all. Dr Andrea thought that the plaintiff's problem should have resolved in about six weeks after injury and Dr Mann in about three months. Dr Greenhalgh said that normally a person with simple rib fracture suffers from severe pain for about a month and from niggling pain for about two months thereafter. The rheumatologist, Dr Tymms, said that when she saw the plaintiff she was of the view that the plaintiff would have been disabled for her work for a period of about six months and capable of carrying out light duties only for about three months thereafter.

14. Some thermography reports were referred to in evidence and there was also a report from Dr Lithgow, an anaesthetist, but I am unable to see that these add anything to the case one way or the other.

15. The plaintiff's case in the end rested upon the evidence of Dr Greenhalgh and Dr Newcombe. Dr Greenhalgh expressed the view in his evidence that there is continuing pain which must, by inference, be related to callus formation at the fracture site impinging on the intercostal nerves. The difficulty with that view is that, as I have already said, the latest x-rays (which apparently were not seen by Dr Greenhalgh) do not show any callus formation at all and show only the normal bone alignment. In a report of 2 July 1985 Dr Greenhalgh expressed a slightly different view, namely that the plaintiff may be subject to recurrences of muscular chest pain "due to scar tissue formation in the bruised area". However, there is no positive evidence of any scar tissue formation in the area of injury. No other doctor mentions it.

16. The plaintiff also relied on the evidence of Dr Newcombe. The plaintiff was referred to Dr Newcombe by Dr Greenhalgh on 10 June 1987. He obtained a history of persistent pain over the lower right rib cage associated with tenderness and swelling from the mid-axillary line over the site of what he described as "her former fractures" together with some radiation of pain around the wall in "an intercostal nerve distribution". He also noted that there had been pain since 1983 which still troubled the plaintiff occasionally. Dr Newcombe thought that the pain was probably of organic origin and possibly related to thoracic disc degeneration but that "on balance" most of her pain at least relates to callus formation with impingement on the intercostal nerves at the fracture site. Dr Newcombe thought that the tenderness and swelling were localized and that this "relates well to the fractured right sixth and seventh ribs. The view expressed in his report was that there was "no indication for surgical treatment" and that the plaintiff was able to manage with her continuing pain although it prevented her from returning to work. Dr Newcombe's view was that because of the continuity of history of pain, the pain should be taken to relate to the accident rather than to any preceding degenerative cause.

17. In his evidence, Dr Newcombe said that contrary to the experience of the other doctors, he had had experience of rib fractures with long-standing complaints of pain following thereafter. It is to be noted, however, that in those case they were associated with head injuries. Under cross-examination Dr Newcombe said that although the prime organic basis was the callus formation on the rib fracture site, he could not exclude aggravation of the thoracic condition or a psychological state as contributing to the plaintiff's present state. In this respect it should be observed that the plaintiff's claim does not rely on any such aggravation or psychological factors.

18. In my view Dr Newcombe's view is heavily dependent upon his own interpretation of the statement in the report of Dr Tymms of 1 November 1985 that x-rays on 4 September 1985 showed considerable callus formation with unconsolidated union. As Dr Tymms herself explained, the term "callus" is a vague one and usually callus formation is absorbed into the ultimately healed site. I take this to mean that the formation of callus is itself part of the healing process. Dr Newcombe seemed to take a somewhat contrary view in the expression of his opinion that callus formation by the time of healing may look like ordinary bone structure but, presumably, behave differently or have a different effect. In this respect I think that Dr Newcombe's evidence is against the weight of the other medical evidence and I reject it. Accordingly, I reject his opinion that there is any causal connection between the plaintiff's symptoms of pain, even assuming that they were genuine and not exaggerated when he first saw her and thereafter.

19. This then is a case in which the overwhelming weight of medical opinion is against the plaintiff's claim that she continues to suffer pain in the site of her rib fractures. There is no other way in which the plaintiff's case can be maintained. If she were a strong witness and the genuineness of her complaints were established, then it might be that simply because of the temporal relationship between injury and symptoms of pain I might as a tribunal of fact take the course followed in Adelaide Stevedoring Co. Ltd. v. Forst [1940] HCA 45; (1940) 64 CLR 538 and find the causal link established. However, as I have already indicated I have grave reservations about the acceptance of her evidence and the evidence of some of the supporting witnesses. Added to that it is not as if this is a case of a person who had a prior trouble-free history with insignificant absences from work who after suffering injury is for medically unexplained reasons unable to return to work because of disabling pain. On the contrary, the plaintiff had a long and complicated history of various physical and emotional problems.

20. Undoubtedly the plaintiff is entitled to adequate compensation for the effects of the injury she received and because of her personality I would find in her favour that she took longer to recover than most people would. I accept the medical evidence which, apart from that of Dr Greenhalgh and Dr Newcombe, is most favourable to the plaintiff, that is to say, the evidence of Dr Tymms that the plaintiff would have been totally disabled from her work (which involved a lot of lifting) for a period of about six months and capable of carrying out light duties only for a period of about a further three months thereafter. Any pain felt in the area of the fracture site and the consequent pain and disability in the right arm thereafter, in my view, cannot be assigned to the subject injury. In any event, her symptoms after then are at least grossly exaggerated and at worst feigned. The extent of her symptoms and disability during the nine month period were also greatly exaggerated.

21. Certain arithmetical figures were agreed at the hearing. It was agreed, for instance, that on the plaintiff's immediate pre-injury earnings she would have lost a total of $3,539.75 for the period of three months immediately following the injury. On the approach I have adopted this would yield a figure of about $8,850 for a period of six months total incapacity and three months partial incapacity. Out-of-pocket expenses for the whole of the period from the date of injury to the present were $1,453.19. I propose to allow $600 for past out-of-pocket expenses. The plaintiff was paid worker's compensation from the time of injury until the time of the hearing and the Fox v. Wood component was agreed at $4,217.28. Of this amount I allow $1,200. The plaintiff made a claim under the principle in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. Insofar as her husband is making a claim for loss of consortium, this part of the claim should be restricted to a component related to services rendered by the plaintiff's daughter and sister. I allow ten hours per week for the first six months and four hours per week for three months thereafter. That makes a total of say three hundred hours at a rate slightly less than the commercial rate of $9 per hour for which I allow $2,000.00.

22. For pain and suffering and loss of enjoyment of life the damages are quite moderate and must be restricted to the nine month period I have mentioned. I will allow $7,000.00 in this regard.

23. Interest is claimed, but as the plaintiff has received worker's compensation throughout, I do not think that interest should be allowed on the loss of earnings. It will be restricted to general damages and awarded at 14 per cent and reduced by one quarter, giving a figure of $1,911.00. The plaintiff's damages and interest therefore total $21,561.00 and reduced by 7.5 per cent for contributory negligence give a net figure of $19,944.00.

24. As far as the husband's loss of consortium claim is concerned, it has to be restricted to the period of nine months. Both he and his wife were working full-time at the time of the injury and he is by no means entitled to have the case dealt with as if his wife carried out full-time domestic duties. On the husband's own account, he rendered very little assistance before the injury and I think that after the injury most of the assistance was rendered by the daughter and the sister. In the light of the rest of the case, I think that the claim for loss of sexual enjoyment is exaggerated, but I accept that during the first six months or so it would have been real, diminishing to very little if anything at the end of a further three months. I propose to award a total of $1,500.00 for the loss of consortium claim and add the amount of $409.50 to that for interest, reducing the total by 7.5 per cent for Mrs. Hengst's contributory negligence and arriving at a final figure of $1,766.00. There will therefore be judgment for the plaintiff Johanna Maria Hengst of $19,944.00 and for the plaintiff Johannes Hengst of $1,766.00. Unless the parties wish to be heard, I order the defendant to pay the costs in each case.