Iva Milicevic v Zivota Simic [1989] ACTSC 61 (12 December 1989)

SUPREME COURT OF THE ACT

IVA MILICEVIC v. ZIVOTA SIMIC
S.C. No. 349 of 1986
Personal Injuries

COURT

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

CATCHWORDS

Personal Injuries - assessment of damages - no new question of principle.

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

HEARING

CANBERRA
12:12:1989

Counsel for the Plaintiff: Mr. I. Curlewis, Q.C.

with Mr. G. Edgell

Solicitors for the Plaintiff: Ken Johnston Bedford & Co.

Counsel for the Defendant: Mr. Hartigan

Solicitors for the Defendant: Abbott Tout Russell Kennedy

ORDER

That the judgment of the Chief Justice dated 12 December 1989 be corrected pursuant to "the slip rule" Order 32 Rule 11 of the Supreme Court Rules.

That there be judgment for the plaintiff in the sum of $82,896.04.

DECISION

This is an action for damages for personal injuries. The defendant admits liability. The plaintiff suffered her injury on 15 January 1986 when the defendant's vehicle collided with the rear of the vehicle driven by the plaintiff. The case is of the familiar type where the plaintiff suffered minor, even trifling, injury, but claims that it has had serious consequences. She was quick to instruct her solicitor to commence proceedings and they were quick to act upon them. The writ was issued on 28 February 1986 when it could hardly have been envisaged that the plaintiff's likely damages warranted action in the Supreme Court. A certificate of readiness was not filed until 11 May 1988.

2. The plaintiff was born in Yugoslavia on 7 April 1956. She went to school until the age of 13 only and then worked on a family farm for several years until she came to Australia in 1977. Shortly after her arrival she married a man who was known to her family back in Yugoslavia. They have three children now aged 12, 9 and 8 years.

3. The plaintiff worked as a cleaner for a few months only after her marriage and because of family commitments did not rejoin the workforce until 1983. She worked as a cleaner in government offices from 5 to 9 p.m. five days a week. I am satisfied, subject to matters to which I will refer, that the plaintiff was in general good health up until the time of her injury. She was energetic and strongly motivated having regard to her background. She and her husband have prospered. They bought a block of land in 1980, built a house on it in 1981 to 1982 and acquired a car in 1985. This was not without its cost, however. They had two mortgages and it was likely that without two incomes they would have had difficulty in maintaining their standard of living.

4. Although the plaintiff was upset and "shaky" immediately after the collision, she drove to her work. She felt a "tingling" at the back of her head and neck but did not notice any pain apart from a headache. Her supervisor however convinced her that she should go to hospital. She went home and then to the Woden Valley Hospital. X-rays were taken of the cervical area which disclosed nothing abnormal and she was discharged with a soft cervical collar and prescribed some pain-killing tablets.

5. The next day she found that she had pain at the back of her skull extending down into her shoulders. The "tingling" increased over the next day or so to the extent that she found it "burning hot". She did not improve (she seems not to have returned to work at all) and saw her local practitioner, Dr Bradfield, on 20 January 1986, the following Monday. She was referred to a physiotherapist, whom she attended two or three times a week for several weeks. She was given massage, ultrasound and heat treatment and the use of a TENS device. She found difficulty with her housework, in particular in lifting and hanging up clothing on the line. In February the Red Cross sent a house-keeping assistant once a week for two or three hours for what appears to have been a month. The pain in the neck area continued. The plaintiff slept with a collar, and found difficulty turning whilst in bed. She needed the help of her husband for that purpose. In February she noticed that she was developing pain in the middle of the back which made it necessary to sleep on the floor from time to time.

6. The physiotherapy treatment continued for about six months. During that time the plaintiff was also having medication in the way of pain-killers and for a while she tried Valium. She was troubled by the prospect of becoming addicted and discontinued its use.

7. On 11 April 1986 the plaintiff saw Dr Chandran, a neurosurgeon, who found no neurological deficits in the arms. There was tenderness in the right sub-occipital region and over the C6/7 area of the spine. Neck and lower spinal movements, however, were full. Dr Chandran thought that there was a soft tissue injury which had led to mild to moderate symptoms and minimal disability with no need for further treatment.

8. However, the plaintiff did not improve. She saw Dr Andrews on 14 August 1986 and later on 5 September 1986. His views were similar to those of Dr Chandran.

9. The plaintiff continued to see Dr Bradfield through to the end of 1986. As early as 12 March 1986 Dr Bradfield had noticed a developing anxiety on the part of the plaintiff. He thought that she had improved physically by the end of November, and he was encouraging her to try to return to light work. On the other hand, she was exhibiting symptoms of increasing anxiety and depression and Dr Bradfield thought that the feeling of tingling in her left hand of which she complained, was a manifestation of this.

10. In about January 1987 the plaintiff made enquiries at a local supermarket about getting a job there, but not surprisingly she was told that nothing was available. By that time, according to the plaintiff, her pain was spreading and "travelling down my back". At the suggestion of Dr Bradfield the plaintiff enrolled in an English language course at the local TAFE. This was a genuine effort on her part to rehabilitate herself and has had some very positive results. According to Dr Bradfield, her spoken English has improved dramatically and in court she was able to express herself very clearly. However, according to the plaintiff, during 1987 her condition was such that on occasions she had to stay home in bed instead of attending her TAFE course.

11. In February 1987 she saw the defendant's doctors in Sydney for the first time.

12. On 13 April 1987 the plaintiff consulted Dr Corry, a specialist in rehabilitation medicine, who found a full range of pain-free movements in the cervical spine, with tenderness around the muscles between the shoulder blades. Dr Corry thought that the history was consistent with soft tissue trauma and whiplash type injury and that she was close to being fit to try some light work.

13. From the time of her injury until the end of 1986 the plaintiff had been in receipt of worker's compensation. It is not clear whether the payment of compensation continued until the middle of 1987 when it was decided that she should try to return to light duties. In June 1987 the plaintiff attended the government offices where she had previously carried out her work. She carried out dusting duties for about fifteen to thirty minutes and then with the assistance of her supervisor she donned a backpack vacuum-cleaner and began to use it. Within another fifteen to thirty minutes she was unable to continue. Her supervisor, Mr. Andreata, saw her screaming, sweating, crying and shaking during this activity. She desisted and has not returned to work since, although she has placed her name on the CES register for work as a cleaner. It is not clear why she has done this because she is very definite in her attitude that she is incapable of carrying out any work as a cleaner. According to Mr. Andreata, there are no duties available any lighter than those that were offered to her on the night in June 1987.

14. Following this incident the plaintiff continued with her TAFE course. In addition she commenced a rehabilitation course at the Woden Valley Hospital. This involved hydro-therapy three days a week, and at a later stage some attempt to acquire skills of a clerical nature. However, the plaintiff's condition worsened, she found herself staying home more and more, and although she sought the assistance of a naturopath, the alternative treatment was only temporarily and marginally effective.

15. In May 1988 the plaintiff organised herself to attend Mrs. Patricia Williams, a clinical psychologist, of whom she had heard. At about the same time the defendant's solicitors arranged for her to go to Sydney for further examinations on behalf of the defendant. A certificate of readiness was filed on 11 May 1988. The exact sequence of all these events is not very clear, but probably does not matter. At about the same time there occurred an event of some significance in the case. What happened was that the plaintiff suffered the first of what has been described in the evidence as "panic attacks". She was in her kitchen and she suddenly became overcome with thoughts of having to submit to further medical examinations and this was associated with feelings of breathlessness and overwhelming panic. She has continued to suffer from these panic attacks from time to time. They seem to be associated most directly with stress arising out of the litigation. She feels increasingly isolated, and finds it necessary from time to time to keep one or other of the children home from school so that she will not be alone. She has developed feelings of paranoia towards some of the neighbours. By mid-1988 the plaintiff was not able to continue any further in the rehabilitation course as she could not cope with learning clerical skills. She was referred to Dr Lithgow at the Pain Management Clinic at Woden Valley Hospital whom she saw for the first time on 25 May 1988. The complaints of physical symptoms to Dr Lithgow were as previously, but by then she was complaining also of minor low back pain. Overall she was, according to what she told Dr Lithgow, only occasionally free of pain and quite restricted in her activities. Dr Lithgow's view was that the plaintiff had suffered ongoing pain and disability which was "very susceptible to influence by external environmental factors" such as concern about medical examinations for the purpose of litigation. He thought that psychiatric help might be advisable but in the circumstances would be more likely to be counter-productive.

16. The plaintiff continued much as before, with some slow and slight improvement. By April 1989 she ceased seeing Mrs. Williams, the psychologist, and she ceased medication by the beginning of May 1989, except for occasional use of an anti-depressant. Her complaints to the Court were similar to those made to the doctors when she last saw them. She says that she is limited in her household activities, but not entirely excluded from them. She manages to hang out the washing and to carry out other household duties for a time until she can continue no longer. In addition, however, she describes herself as being scared, emotional and not sleeping well. In addition she describes somewhat bizarre feelings of "hot, burning inside the body" and "different attitudes inside me fighting". She has a "crushing feeling" in the chest. In addition to the headaches and pain in the neck and arms, she also suffers from low back pain from time to time with occasional radiating pain into the legs. This appears to have occurred to any noticeable extent only from some time in 1987. The pain in her head has changed somewhat and appears to be in all parts of the head. Her neck restriction, however, has improved. She says that she has learned to do things without hurting herself. She agreed in cross-examination that she had occasional tingling in the arms before her injury as well as occasional back pain at that stage. She agreed that she had suffered from some headaches before her injury and Dr Bradfield said that he had been consulted for headaches of a sinus type in 1984 and 1987. There had been little low back pain since the injury according to Dr Bradfield, who also thought that the restriction of movement in the neck was not greatly significant by the time he last saw her.

17. Dr Lithgow, who gave evidence, said that he thought the plaintiff was likely to recover from the somatic symptoms in a period of two to three years, but he thought that the prognosis for the chronic anxiety state was poor in the short term and in the medium term. Nevertheless, he thought that she had a capacity for work apart from cleaning. Dr Lithgow was asked whether he would defer to the view of a psychiatrist in relation to the chronic anxiety and he agreed that he would. However, it is significant that the only psychiatrist whom the plaintiff has ever seen was Dr Robbie and he saw her on behalf of the defendant. The defendant did not call Dr Robbie or tender a report and there was no explanation for his absence.

18. Dr Cairns saw the plaintiff on 10 August 1987 on behalf of the defendant. He thought that there was no connection between her lower back complaints and the injury and that in respect of the cervical spine she had suffered a minor to moderate soft injury strain from which she should have recovered within twelve to eighteen months of the accident. Because there was "psychogenic magnification in her presentation" he concluded that her ongoing disability was not the result of the injury.

19. Dr Rowe, an orthopaedic surgeon, saw the plaintiff on behalf of the defendant on 5 February 1987 and 30 August 1988. His original view was that she was suffering from anxiety or depression "typical of psychiatrically based pain" and that there was no restriction on her abilities to work. His later view was that she was either suffering from "psychiatrically based pain or, alternatively, fabricated disability". A similar view was expressed by Dr Spira, a neurologist, who on the first occasion on 4 February 1987 thought that the plaintiff was suffering from "either an hysterical disorder or frank malingering" and that she did not impress as being anxious or depressed. When next seen on 30 August 1988 the plaintiff seemed particularly distraught and Dr Spira considered that there was a deliberate attempt to exaggerate the restriction of neck movement together with "false straight leg raising".

20. I have given all the medical evidence appropriate consideration. The plaintiff undoubtedly presented a difficult picture for the doctors as she does to the Court. In the end, the opinion of the defendant's doctors turn largely on questions of credit, and I must of course decide those for myself. The plaintiff impressed me as a truthful witness. The case, however, is not to be decided simply on impressions. There are other factors which tend to suggest that the plaintiff is genuine in her complaints. The efforts she made to rehabilitate herself by undertaking the English language course is unusual in cases of this nature, and the extent to which she was successful is also unusual. It is not entirely clear when the plaintiff ceased to be paid worker's compensation. It may have been as early as the end of 1986, but there is other evidence to suggest that it continued until about the time when the plaintiff tried to resume light duties in June 1987. In any event, it did cease well before the hearing, and the plaintiff and her family have continued to exist on the husband's income alone. This is not the sort of case where the worker's compensation insurer, confident in the expectation that it will be reimbursed in due course by the third party insurer, continues to pay compensation to a worker with little regard to whether or not the worker has recovered capacity to earn, thereby inducing a belief in the worker that he or she continues to be incapacitated, or at least severely curtailing any motivation to get back to work. Moreover, Mr. Steven Milicevic gave evidence which was entirely supportive of his wife's claim and did not appear to me to be in any way exaggerated.

21. Nevertheless, there are limitations on the plaintiff's claim. Some of the disabilities and symptoms which go to make up the totality of her condition can be traced back to what she was like before the injury and I am not convinced on the balance of probabilities that they would not have occurred anyway. She was prone to some tingling in her hands, low back pain (although at that stage without pain radiating into her legs) as well as headaches which from time to time necessitated her seeking medical attention. On the other hand, her perception of pain from these sources has been magnified by the psychological aspects which, in my view, result from the injury and must resound in damages.

22. The plaintiff is a person of somewhat emotional nature with a susceptibility to stress and anxiety. The accident put in jeopardy the lifestyle that she and her husband had established for themselves and their children and what was initially a soft tissue injury which might have been expected to clear within twelve to eighteen months, became the basis for the plaintiff to build thereon what Patricia Williams, the psychologist, called "very strong and terrifying images". I think the following passage from the report of Mrs. Williams well summarises this, the most difficult aspect of the case.

"Mrs. Milicevic's pain condition and suffering
have been exacerbated by development of panic
attacks after the accident. In my opinion, the
panic attacks are a direct result of the
accident, and the subsequent pain condition she
suffers from. She has displayed high sensitivity
to judgments by others towards herself, which are
especially difficult because of her high personal
moral values. In fact, she has an internal model
of perfection which would have been hard to live
up to even under ideal conditions of
functioning. She feels that her integrity, which
is strongly bound up with her sense of identity,
has been threatened by disbelief of her pain
condition by others, resulting in lowered
self-esteem and self-confidence. In addition, prior
to the accident, Mrs. Milicevic dealt with
emotional arousal and stress by high levels of
energy expenditure in physical activity. This
mode of coping is no longer available to her. It
is highly likely that consequent high levels of
anxiety are then discharged as panic attacks.
She has, at times, displayed a tendency to
perceive external pressures as excessively
threatening and overwhelming. All of these
factors represent potential and ever-present
threats to her fragile ego-structure."

23. I quote this passage not so much because of its probative weight but rather because it expresses, more or less, my own conclusions based on the rest of the evidence.

24. Mrs. Williams thought that crisis counselling and therapy would probably be needed at times of stress in the future and that while the plaintiff continues to experience present pain levels, a return to work would only maintain or worsen her panic attacks. On the other hand, in my view, the stress caused by the case itself is an important factor which is likely to be reduced once the litigation is finalised. At some early stage it ought to be reduced sufficiently for the plaintiff to consider work without suffering a panic attack. At any rate I am not convinced that the plaintiff has discharged the onus of showing that her symptoms and disabilities will continue indefinitely into the future. Once the stress of the case is removed, and she and the family have achieved a measure of financial security with the award of damages, much of her working capacity will be regained. I think that over the next year or so she should be in a position to make efforts to re-enter the workforce which may be tentative and indeed unsuccessful at first. There may be other factors, such as the need to attend to the needs of the children, which will inhibit her wish to return to work and for these the defendant will not be responsible. I am not convinced that any loss of earning capacity caused by the injury will continue beyond two years from now.

25. I think that the plaintiff should be awarded most of the past economic loss claimed on her behalf, which is based on the hours she worked at the time of injury and the appropriate wage rates for someone working in the capacity of a part-time cleaner. It is agreed that, as a matter of arithmetic, the notional total past economic loss amounts to $32,555.42 and discounting this for the past recovery of working capacity to a minor extent and for contingencies, I would award her $27,500.00 for past economic loss. For the future I note that the present applicable wage rate is $178.00 net per week. The use of the 3% discount tables is inappropriate in this case and I would regard $8,500.00 as adequate to compensate for loss of earning capacity for the first year in the future and $5,000.00 for the second year in the future, making a total of $13,500.00. Out-of-pocket expenses are agreed at $4,819.00. A claim is made pursuant to Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. I bear in mind that a Red Cross housekeeper was engaged as I have indicated above and that Mr. Milicevic, no doubt, performed a number of household duties which were previously performed by the plaintiff, but this aspect of the claim is not the subject of precise evidence and I have allowed for it in the award for pain and suffering and loss of enjoyment of life for which I award $25,000.00. I apportion for the purpose of interest $20,000.00 for past pain and suffering and loss of enjoyment of life. Total damages are $70,819.00.

26. Interest is claimed and will be awarded on that component of $20,000.00. It will also be awarded on the past economic loss after making allowance for worker's compensation received of approximately $1,500.00, that is to say on $26,000.00. The rate is fourteen percent and the result will be reduced by half because the loss did not all occur at the beginning of the period. The amount of interest so calculated is $12,611.66 and that will be added to the damages making a total of $83,430.66 for which the plaintiff is to have judgment. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.