Carolyn Patricia Ross v Brett William Woonton [1989] ACTSC 43 (24 August 1989)

SUPREME COURT OF THE ACT

CAROLYN PATRICIA ROSS v. BRETT WILLIAM WOONTON
S.C. No. 1284 of 1984
Personal Injuries

COURT

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

CATCHWORDS

Personal Injuries - assessment of damages - whether injuries attributable to accident - whether additional anxiety and depression caused by injury - no new question of principle.

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

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

HEARING

CANBERRA
24:8:1989

Counsel for the plaintiff Mr. G.J. Lunney

Solicitors for the plaintiff Pamela Coward & Associates

Counsel for the defendant Mr. Hartigan

Solicitors for the defendant Crossin Power Haslem

ORDER

There be judgment for the plaintiff in the sum of $108,503.27.

DECISION

This is an assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle collision which occurred at about 8.40 a.m. on Adelaide Avenue in Canberra on 19 July 1984. A car collided with the rear of the car being driven by the plaintiff, which was stationary in a line of traffic. The plaintiff was shaken and felt nauseous, with stomach pains, but did not notice anything in the nature of injury. She drove to the panel beaters and then to work that same morning. According to her evidence, when she left the panel beaters she felt stiffness in the back of her neck and aching in the lower back. When she got to work at the Parliamentary Library she was in so much pain that she had to go home. Apart from an attempt to resume work over two days in June 1988 and apart from singing with a band, she has not worked since.

2. The medical nature of the plaintiff's case is that she sustained soft tissue injury to the cervical and lumbar spine which is directly attributable to the accident, with repetitive strain type injury to both arms which is an indirect consequence of the accident, and anxiety and depression which results from her injuries and which aggravates her perception of her pain.

3. The defendant's case is that the effect of the soft tissue injury came to an end some time in 1986, that any anxiety or depression since then is not associated with the injury and that the repetitive strain injury, if it exists, is not attributable to the accident.

4. The plaintiff was born on 14 August 1947. She completed an apprenticeship as a hairdresser and followed that occupation for several years, including periods during which she either managed a salon or ran a salon on her own account. She married and had a child in 1975. Her first marriage broke down and she abandoned her trade. She took up training as a shorthand typist. She married again and that marriage came to an end in about 1982. She then came to Canberra and joined the Public Service as a typist and then word-processor operator. She had trouble working at a word-processing machine in 1983, which caused pain in the shoulders and upper arms. That particular difficulty resolved after a few days off work and a change in office equipment and furniture. She had no further symptoms of that nature until after the accident on 19 July 1984.

5. Although there is no dispute that the plaintiff suffered some sort of injury involving her upper back, there is a question whether the plaintiff suffered any injury at all in her lumbar spine, despite what she said in evidence. Dr Gibson, whom she saw on the day of the accident, says nothing in his report about any complaint regarding the lumbar spine. There was no complaint regarding the limbs. Neurological examination was normal. The complaints related to the central abdomen and cervical and lower thoracic spine. The plaintiff did not see Dr Gibson again. The same day or the following day she went to the Woden Valley Hospital where her complaints were similar. She returned on 23 July by which time her complaints extended to the left side of the neck. She was treated with pain-killing medication, supplied with a cervical collar and advised to attend for physiotherapy. On 27 July she attended another general practitioner, Dr Vett, by which time spasm and tenderness of the neck muscles precluded physiotherapy. Dr Vett thought that the plaintiff's condition was slowly settling. There was still no complaint of pain in the lower back.

6. The plaintiff said in her evidence that in the initial few weeks after the accident pain in her lower back was over-shadowed by the more intense pain in the neck, but she was unable to bend and started to notice pain radiating down the right buttock. On 2 August 1984 she woke up with pain radiating down her right leg, a fact which she noted, as she noted many facts, in her diary.

7. Dr Vett referred the plaintiff to Dr Tymms, rheumatologist, who gave evidence and who furnished helpful reports. The complaints of the plaintiff to Dr Tymms on 26 September 1984 were of constant aching in the cervical and thoracic spine with radiation into right buttock and upper leg with constant occipito-frontal headaches, and aching and weakness in the left arm, together with other symptoms on the left side of the upper body and head. The complaints were supported to some extent by marked tenderness and muscle spasm in the cervical area, together with some swelling, with a suggestion that this extended to the lumbar spine. A CT scan confirmed that there was no disc lesion.

8. The plaintiff then underwent physiotherapy which provided temporary relief of symptoms, but the plaintiff continued to complain of pain after activity. Dr Tymms saw the plaintiff again on 27 November 1984 and 8 February 1985. On the latter occasion the plaintiff had developed lateral epicondylitis. Dr Tymms associated this with what she assumed was increased use of the right arm because of the weakness in the left arm, but it is clear that the plaintiff gave no specific history of over use of the right arm to Dr Tymms.

9. With further medication and physiotherapy the plaintiff's symptoms were relieved somewhat temporarily. She used the cervical collar less often and by the end of the year stopped wearing it altogether. At the same time, however, according to her evidence, she kept bumping her right elbow because the restriction on her neck movement, caused either by the collar or by her neck condition or both, obstructed her view. This was accompanied by further insensitization of the left hand as a result of which she was prone to dropping objects and burning her left hand without noticing.

10. On 1 February 1985 the plaintiff was referred by her solicitors to Dr Danta, a neurologist. At that stage her chief complaints were pain in the neck and left arm and pain in the lower back radiating to the right buttock and thigh. The plaintiff complained to Dr Danta that she was very limited in her activities at home and that she was depressed. Dr Danta concluded that the plaintiff was not fit for work due to typical whiplash injury complicated by "sympathetic dystrophy" of the left hand and right lateral humoral epicondylitis. Dr Danta referred the plaintiff to Dr Lithgow and to the pain clinic at the Woden Valley Hospital. Dr Lithgow prescribed a TENS appliance and the plaintiff appeared to obtain temporary relief from this also. On the next occasion, 30 September 1985, Dr Lithgow recommended assessment and treatment from clinical psychologist, Patricia Williams. Ms. Williams began seeing the plaintiff for an hourly session once a week thereafter. However, the treatment until January 1986 was concerned with stress arising out of the relationship between the plaintiff and her de facto husband. Ms. Williams, who gave evidence, said that she was concerned with treating the plaintiff and not with causation or other medico-legal aspects.

11. On 3 July 1975 the plaintiff was examined by Dr Colin Andrews, neurologist, on behalf of the defendant. The plaintiff's complaints at that stage were of pain in the neck and left shoulder radiating into the left arm. There was no complaint of lower back pain and nothing relating to the right arm. At that stage Dr Andrews considered, somewhat unemphatically, that the plaintiff was not fit to return to work.

12. On 20 November 1985 the plaintiff was seen for the first time by Dr Ferguson, who does not claim to practice in any particular field of medicine. His earlier letterheads bear the words "Medico-Legal Assessor", but those words have been struck out in more recent reports. Dr Ferguson saw the plaintiff at the insistence of Ms. Williams, the clinical psychologist, but he soon took over her medical management. After three closely spaced consultations on 20 and 21 November 1985 and 6 December 1985, Dr Ferguson sent a very lengthy report to the plaintiff's solicitors. He obtained a history that four or five months after the accident the plaintiff, in addition to her pain in the back, left arm and shoulder, began to have pain in the outer side of the right elbow "with increased use of her right upper limb because of her left upper limb complaints". Later in his report he described the activities which caused the plaintiff to experience constant soreness of the outer side of the right elbow. These were using right hand for "gripping, lifting, carrying and twisting activities, movements of her right fingers as in writing or using a knife, movements of the elbow, bumping the elbow and with changes to rainy weather and on cold exposure". I observed that the plaintiff in her evidence did not speak of any particular activity which caused difficulties with her right elbow, apart from the occasions on which she bumped her elbow because of lack of vision, but in any event, the activities described by Dr Ferguson do not, in my view, appear on the face of it to constitute overuse or repetitive strain which is itself likely to result in injury. The activities described seem to me to be the ordinary activities of a right-handed person.

13. It is significant that Dr Ferguson also mentions the strains that had developed in the plaintiff's relationship with her de facto husband at the end of 1985. The de facto husband died unexpectedly from a massive heart attack on 9 January 1986. This aggravated the plaintiff's stressful condition and she developed anxiety and depression. I do not see that that anxiety and depression was a mere incident in any stressful condition which was as a result of the injury. It seems to me that the anxiety and depression following the death was a newly emerging independent cause and overwhelmed any effect of the injury of an emotional or phychological character if any still persisted at that stage.

14. At any rate, in early 1986 the plaintiff appears to have suffered a psychological downturn. In February that year she started paying for home help and in mid-May began to pay the Red Cross for their home help services. The plaintiff started attending a chiropractor. In July 1986 she had a holiday in Darwin from which she returned apparently feeling greatly improved. Later in the year she submitted to acupuncture treatment and at some stage during that year resumed driving a motor vehicle.

15. Dr Ferguson's initial prognosis that the plaintiff would continue to be incapacitated but was likely to respond to a prolonged course of spinal manipulation and intravenous steroids continued through 1986 and indeed to the present time. It is curious that he does not mention the death of the de facto husband as being of any significance. In his report of 29 April 1987 he does not mention depression at all, although in his last report of 11 February 1988 he says that the plaintiff has been "very upset and depressed because of the chronicity of her complaints, the restrictions which they have imposed on her activities and the recent insistence of her employer that she return to work".

16. Between January and March 1987 Dr Ferguson encased the plaintiff's right forearm in a plaster cast. There were further steroid injections, and when the plaster cast was removed, Dr Ferguson referred the plaintiff to Dr J.J. Connors, specialist surgeon, who examined her on 6 May 1987. Dr Connors, in his report, stated that it was clear at consultation that the plaintiff was suffering from right and left tennis elbow, the right being much worse than the left. He seems to ascribe this to the fact that "her work duties relied more on her use of her right arm". After referring the plaintiff back to Dr Danta, who agreed with the diagnosis of the tennis elbow syndrome, Dr Connors operated to release some of the muscles in the forearm. Sutures were removed on 1 December 1987 and on further examination on 18 December 1987 Dr Connors found that the wound was well healed. Dr Connors was somewhat guarded in his prognosis, suggesting that the plaintiff was over-optimistic about the results of his operation and that long-term complete recovery could not be assured. He was also guarded on the question of the relationship between the plaintiff's whiplash injury and the right tennis elbow, stating merely that the two could be "indirectly related".

17. At the same time as the operation to the right elbow by Dr Connors, Dr Ferguson manipulated the plaintiff's spine. She had some temporary relief after that. She took up singing in a band once or twice a week. Exactly when is not clear, but it appears to have been in early 1987.

18. In June 1988 at the insistence of the Commonwealth, the plaintiff returned to work. The episode turned out to be little short of a disaster. Although she spent most of the first day being reintroduced to the work, she was in extreme pain, according to her evidence. She went to work the next day but she could not tolerate it for more than an hour or so and had to leave. A photograph was produced showing her being helped away from the offices where she was working. In the photograph she appears to be suffering great discomfort, as she appeared to suffer from time to time in the witness box. However, at other times during her evidence she was remarkably cheerful.

19. The plaintiff continues to receive treatment by way of spinal manipulation. Dr Ferguson has apparently now left Canberra and Dr Keynes is carrying out the manipulations. The plaintiff continues to be on a heavy regime of pain-killing medication. She takes six to fourteen Panadol tablets a day.

20. The plaintiff remarried on 15 October 1988. She and her husband went camping on their honeymoon. The plaintiff has been on several camping trips since her operation, which apparently causes her no trouble apart from the discomfort of the trip. Nevertheless, the plaintiff claims that she is worried about her capacity to hold her marriage together, and that she cannot cuddle her 14 year old son as she used to be able to before her accident. She says that she cannot hang out heavy washing or attend to many of the household chores, and these are done by the person supplied by the Red Cross. She gave some instances of occasions on which she needs to use her right hand only instead of two hands, but it did not appear that these were particularly remarkable or repetitive. Video films taken of the plaintiff around her home show her in a well kept garden, well able to bend and pick up hoses and pots, to remove weeds and generally to move in apparent comfort and even to walk briskly up the steps leading to the front of her house. Other video films showed the plaintiff singing in the band where again she appears not to suffer any discomfort, holding the microphone in her right hand and swaying with the music. She explains these films to some extent by saying that they were taken when she was feeling at her best after one or other of her manipulations.

21. A member of the band, Mr. Findlay, gave evidence that the plaintiff from time to time complains of pain, but he could not remember where the pain was or indeed if she said anything about where it was. He said that she takes pain-killers and he assists her to relieve the pain by letting her hang from his neck, which presumably has a traction-like effect. Mr. Findlay said that the plaintiff earns about $60 to $80 for each performance by the band. Another witness, Mr. Simpson, contrasted the plaintiff's behaviour now with her behaviour beforehand when she was an exuberant, out-going personality which, according to the witness, is not what she is now. Mr. Simpson did not say whether or not he had attended any of the plaintiff's singing performances.

22. Dr Andrews has seen the plaintiff on three occasions since the one previously mentioned. His view expressed on 2 June 1986 was as follows:
"The problems with her spine don't match together

very well. What she is describing as symptoms is
not supported by physical findings on clinical
examination. I also find it hard to explain why
she should develop RSI as she doesn't seem to be
exposed to any repetitive strain. She denies
having any injury that could account for her
symptoms. There still is no objective evidence
that there is any problem with her spine."

23. Dr Andrews has not shifted from this view despite seeing the plaintiff and reviewing the case on several occasions since. He is of the view that the only major disability is the so-called right lateral epicondylitis which he says is related to her work and not the accident.

24. Dr Mann, a consultant surgeon, saw the plaintiff twice in 1988, read "the enormous correspondence" and came to the view that the local tenderness in the right arm cannot be attributed to the neck injury nor, in Dr Mann's view, can the symptoms be attributed to repeated bumping. Dr Mann considered the possibility that something in the nature of occupational overuse syndrome might have come about because, as the plaintiff claims, "she had to use the right arm more often because her left arm was thrown out of action from impingement on the roots of the brachial plexus following the neck injury".

25. It is significant, in my view, that Dr Mann, who has had considerable experience in this field, simply says that he has not seen this phenomenon in the past and so is unable to conclude that the disability in the right arm is connected with the injury in 1984. If there is disability in the neck and left arm and the back then, in the view of Dr Mann, they are associated with the 1984 accident, but as the doctor observes, this depends on whether or not the plaintiff's complaints are accepted as genuine.

26. Dr Tymms saw the plaintiff on 23 June 1988 at the request of her solicitors. That was the first time Dr Tymms had seen her since February 1985. The plaintiff's history and complaints in the meantime as well as her present complaints are set out very comprehensively in Dr Tymms' report of 27 June 1988, and it is not necessary to set them out in this judgment. Dr Tymms' conclusions were that there was some slight improvement in the plaintiff's condition, that the continuing major disability was pain in the left upper back with a sensation of weakness and clumsiness of the left hand and some pain in the lower back after activity for about ten minutes. Dr Tymms expressed the view that further neurological investigation would be desirable before a definite opinion could be given on those matters. It is significant that Dr Tymms says nothing in this latest report about continuing epicondylitis. In her evidence, Dr Tymms agreed that the plaintiff had never given her a history of any particular activity likely to lead to epicondylitis.

27. Dr Raymond Newcombe, a neurosurgeon, supplied reports and gave evidence, but his views were rather inconclusive. When the plaintiff was first seen in May 1985 she complained of no back pain or sciatica, although she was already complaining of right tennis elbow. By 14 March 1986 there was an improvement in the plaintiff's neck after manipulation but by that time she had, according to Dr Newcombe, repetitive strain injury in both arms as well as right tennis elbow. By that stage the neck problems had resolved. Dr Newcombe thought that she was fit for light clerical work. By 24 March 1988 Dr Newcombe thought there was still some residual effect of injury to the spine or right elbow but it was difficult to term the extent of disability. When he gave evidence, Dr Newcombe conceded that the diagnosis of tennis elbow was not his own but that he was relying upon the diagnosis of some other doctor who had seen the plaintiff previously.

28. Dr Gupta, a psychiatrist, treated the plaintiff in January 1986 and thereafter at the request of Dr Vett. She gave him a history that she was depressed since the accident but more so since the death of her husband. Dr Gupta considered that as at middle 1988 the contribution of the accident to the plaintiff's depressive condition was some eighty percent. He did not mention anything about the plaintiff's recent remarriage, so I presume that the plaintiff did not tell him about it.

29. The situation has arisen then, where the plaintiff is seen by some doctors to have suffered or to be suffering from a conditon which is predominently traceable to injury to the cervical spine with associated symptoms in the left shoulder and arm. Other doctors ascribe such disabilities exist to a condition in the right elbow. There are also psychological factors.

30. There are many unsatisfactory features about the plaintiff's case. I consider the evidence of Dr Mann and Dr Andrews in particular to be very persuasive. I find the evidence of Dr Ferguson and Dr Gupta unconvincing. There is a good deal to be said for the proposition that the condition in the plaintiff's spine and left shoulder and arm had ceased to be disabling by some time in 1986. I am prepared to accept, although there is considerable doubt about the matter, that on the probabilities the plaintiff's depression and anxiety, such as it was, up until the end of 1985 had sufficient causal connection with the injury to sound in damages. She was after all a person prone to be emotionally and psychologically affected by physical injury. On the other hand, I think that the death of her husband in January 1986 had emotional and psychological consequences which overwhelmed the emotional and psychological results of the injury itself. As far as the so-called tennis elbow is concerned, I am prepared to accept in favour of the plaintiff that when her left arm was particularly disabling, it caused strain and discomfort in her right arm. In the absence of precise evidence, however, I do not conclude that there was anything in the nature of repetitive strain injury, occupational overuse syndrome or anything of that nature. I reject entirely the evidence of Dr Ferguson that repetitive strain injury to the right arm, brought about by disability in the left arm, resulted in inability to use the right arm to the extent that the plaintiff then favoured the left arm with consequent repetitive strain injury in that arm.

31. The plaintiff has clearly locked herself into a regime of medication and questionable medical treatment (Dr Mann and Dr Newcombe agree that continued manipulations are of no use, and even possibly harmful). If it were not for the evidence of Mr. Findlay and Mr. Simpson, I would have rejected the notion that there is any residual factor in the plaintiff's symptoms and disabilities which can be traced to her 1984 injury. I find that there is some slight element in her present condition in the neck and left arm, which is traceable to the injury, but that her accounts of symptoms and disabilities in those areas are considerably exaggerated. Her perception of those symptoms and disabilities is made more dramatic by social and psychological factors for which the defendant is not responsible, but I think that somewhere in amongst her exaggerated complaints and disabilities there is something which but for the 1984 injury would not be there. As far as the future is concerned, even Dr Gupta thought that the plaintiff's difficulties would largely resolve two or three years after the settlement of her case. I therefore conclude the plaintiff's claim should be approached on the basis that she suffered a soft tissue injury to her cervical spine and to a lesser extent to her lumbar spine which resulted in her inability to return to any form of work up until some time in 1986 and that she became progressively less disabled until some time towards the beginning or middle of 1987. Since then her condition has remained much the same. I think that the attempt to return to work in June 1988 was completely overlaid by psychological personal problems which themselves are not the result of the injury. I am not convinced that any disability in the right elbow continued to result in any incapacity for work after the middle of 1987.

32. In accordance with these findings I would award the plaintiff the whole of her loss of earnings as a word-processor operator from the date of the accident on 19 July 1984 for a period of two years, half of her actual loss of earnings for another year, and thereafter one-fifth of her loss of earnings. I do not think that her earnings from singing in the band should be offset against this loss. She would probably have sung in the band anyway. The past loss of earnings may be rounded out to $38,000. For the future I would award a sum which is calculated by taking one fifth of the present wage rate payable to a typist at her level in the Public Service ($304 per week net) and projecting it two years into the future. Without any pretence at mathematical accuracy in trying to qualify the present value of future loss, I would award $6,000.00 for future loss.

33. Medical and hospital and other out-of-pocket expenses are agreed at $14,399.36.

34. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $9,032.55.

35. For pain and suffering and loss of enjoyment of life I award $27,500 as to which I apportion $20,000 for the past.

36. The plaintiff also makes a claim under the principles of Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 for costs incurred due to the employment of domestic home help. The amount spent by her is agreed at $5,571.36. The plaintiff was not cross-examined on this aspect of her claim. With some hesitation I allow her the sum agreed. I award $500 for future home help. The extent to which any help needed in the home at the present and in the future, which has been shown to be due to the injury, is minimal.

37. Interest is to be awarded on the past component for pain and suffering, that is to say on $20,000 at fourteen per cent per annum less one half. The amount of worker's compensation payments, sick pay and the like, received by the plaintiff exceed the award for past loss of earnings and no interest on past loss of earnings is awarded. Total interest to be awarded therefore is rounded out to $7,500.

38. The total damages are $101,003.27, which appears to be appropriate looking at the case as a whole. Add the interest of $7,500 and the plaintiff is to have judgment for $108,503.27.

39. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.