Patricia Ann Payne v William Garnock [1990] ACTSC 5 (2 February 1990)

SUPREME COURT OF THE ACT

PATRICIA ANN PAYNE v. WILLIAM GARNOCK
S.C. No. 1056 of 1987
Assessment of Damages for Personal Injury

COURT

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

CATCHWORDS

Assessment of Damages for Personal Injury - no new matter of principle.

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

HEARING

CANBERRA
2:2:1990

Counsel for the Plaintiff: Mr S. Wilcox

Solicitors for the Plaintiffe: Snedden Hall & Gallop

Counsel for the Defendant: Mr J. Hartigan

Solicitors for the Defendant: Crossin Power Haslem

ORDER

1. There be judgment for the plaintiff in the sum of $102,002.54.

2. The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injury. The plaintiff has obtained interlocutory judgment and the matter proceeds as an assessment of damages. The plaintiff was injured on Friday, 21 November 1986 when she was driving a Commonwealth car turning left from Ipswich Street into Newcastle Street, Fyshwick. The defendant was driving a motor car immediately behind the plaintiff. The defendant's attention was distracted by traffic on the right and he drove into the rear of the plaintiff's vehicle. There is some dispute whether the plaintiff's vehicle was stationary or moving at the time of impact. For what it is worth, I prefer the evidence of the plaintiff that her vehicle was stationary for about two seconds prior to impact. The defendant, who gave evidence, seemed to be concerned to minimise fault on his part. As liability is not in dispute, the relevance of this aspect of the case is that counsel for the defendant has been concerned to establish that the impact was a very minor one and that it was unlikely to cause serious injury to the plaintiff.

2. However, the real issue is not so much the exact nature of the injury received, but the nature and extent of its consequences. I have little difficulty in finding that the plaintiff did receive some sort of injury, although it did not seem serious at the time. She was able to drive the Commonwealth car to the depot, but on the way she noticed headaches, stiffness in the shoulders and pain in the low back. She reported to Civic Police Station, although she made no mention of any injury at that stage. She went home and took a hot bath and on the evening of the same day consulted Dr Barraclough, whom she had consulted once previously as her general practitioner.

3. On the Monday the plaintiff was examined by a Commonwealth Medical Officer who certified her as unfit for work for the rest of that week. On the following Monday, she went to work and drove a small bus. At the end of the day she felt increased pain in the neck. She again consulted Dr Barraclough and was certified as unfit to continue at work. She was prescribed physiotherapy which continued until 7 January 1987. There was an incident in February 1987 when she was placing a passenger's wheelchair in the boot of her car and she felt sudden low back pain. However, this resolved within a couple of hours. At her own initiative she consulted a chiropractor, who treated her without lasting improvement until 17 March 1987. From the time of the injury on 21 November 1986 until that date, her condition steadily worsened, particularly in the lower back. She was also experiencing pain radiating through the buttocks down her right leg. She was losing time from work.

4. On 17 March 1987, the plaintiff entered Royal Canberra Hospital. The circumstances of her admission are not entirely clear but within a day or so she came under the care of Dr David McNicol, orthopaedic surgeon. She submitted to a myelogram, which showed a lesion at L5/S1. Dr McNicol operated and found a grossly disrupted disc. The size of the herniation caused him some surprise. It was one of the biggest he had encountered. The plaintiff returned to work on 29 April 1987. A special seat was prescribed for her driving. Although she seems to have coped reasonably well on her initial return to work, the lower back pain and sciatica returned. She has lost various periods from work as a result. I shall return to this aspect later, but at this stage it can be noted that in the year prior to 30 June 1989 she lost about thirty-five days from work in respect of which she was paid compensation under the Comcare system. The attitude of the Commonwealth, the plaintiff's employer, is of course in no way binding upon the defendant in this action, but it is clear that the Commonwealth has accepted responsibility for the incapacitating condition which the plaintiff claims is a result of the injury on 21 November 1986.

5. The plaintiff impressed as a truthful witness who was not seeking to exaggerate the seriousness of her condition. Indeed, apart from the aspect of her omission to give Dr Barraclough full details of her pre-injury condition, the plaintiff's credit was not really called into question. Furthermore, evidence was given by several witnesses including her daughter, a neighbour and a work colleague, which was supportive of the plaintiff's complaints of aches and pains in the neck and lower back and of her reduced capacity around the home as well as a tendency towards anxiety and depression. I accept all of that evidence.

6. The course of cross-examination of the plaintiff and the detailed medical evidence established a number of matters which went to support the defendant's case. That case was essentially that the pain in the neck and shoulders which the plaintiff experienced immediately after the injury was more or less resolved by about the end of January 1987. The defendant relies on the evidence that, thereafter, the plaintiff's complaints were increasingly of low back pain and pain radiating mainly down the right leg but also on occasions down the left leg. The low back pain is to be distinguished, according to the defendant's case, from pain in the groins, mainly the right groin, which derives not from the injury but from a kidney condition from which the plaintiff has suffered for some years.

7. The defendant also relies on the evidence that, again for some years prior to the injury, the plaintiff had had trouble in the neck for which she had seen a chiropractor. It is suggested that the trouble in her spine may have been due to the chiropractic treatment. On her visit to Dr Barraclough on 28 October 1986, prior to the motor vehicle accident, the plaintiff had been complaining of recurrent chest pain as well as intermittent pain in the neck and shoulders.

8. Because of the persistent complaints by the plaintiff of low back pain and right sided sciatica, Dr McNichol in May 1989 arranged for a magnetic scan which indicated a significant posterior disc protrusion at the L2/3 level with the possibility of protrusion also at L4/5. Dr McNichol thought this might explain some of the groin pain. A discography was performed which produced left groin pain on injection of the L4/5 disc and "typical low back pain" which radiated into the left hip upon injection of the L2/3 disc. Dr McNichol recommended a trial of epidural steroids and a continuing weight loss and exercise programme which the plaintiff was undergoing at the time of the hearing.

9. It is possible to set out the medical evidence in greater detail. However, the preponderance of medical opinion is that the motor vehicle accident aggravated a pre-existing degenerative condition in the plaintiff's lower back which has continued to be responsible for her symptoms. This was the opinion of Dr Barraclough who has seen her throughout and of Dr McNichol who performed the original fusion in January 1987 and who has continued to see the plaintiff from time to time. It is also the opinion of Dr Corry, a practitioner in rehabilitation medicine, who suggests in addition that there may have been periods of incapacity when the symptoms have been complicated by anxiety and depression. That latter condition, however, in my view, clearly derives from the injury itself and the defendant is responsible for it. Dr Edwin Cassar, a consultant physician, adds that at the L5/S1 level there is scarring with adhesions and retraction of the right lumbo-sacral nerve roots and that these features go to explain the continuing symptoms. Dr Cassar takes the view most pessimistic of the various doctors. In a report to the plaintiff's solicitors dated 3 May 1989 he says that the plaintiff's problems are entirely traceable to the motor vehicle impact "leaving your client with need for lifelong pain management treatment, both surgically and medically, it being highly unlikely that your client's condition can be cured to any reasonable satisfaction".

10. The medical reports admitted in the defendant's case tend to support the plaintiff's claim. Dr W.J. Burke, a consultant physician, states that the neck pain, backache and sciatica are related to spondylotic degeneration and the symptoms of the disorder were precipitated by the injury. Dr Burke thinks that the plaintiff will be likely to have increasing difficulty continuing her work as a driver. Professor G. Douglas Tracy, a surgeon, expresses a similar view.

11. The only medical view which would lead to a conclusion adverse to the plaintiff is that of Dr Yeo, who considered that the damage caused by the injury was confined to muscle and ligaments in the lumbar spine without any nerve root involvement. Dr Yeo did, however, consider that scarring in the region would result in susceptibility of recurrence of pain particularly with rotation. Dr Yeo has also apparently expressed the view to the plaintiff herself that he does not connect her present condition with her injury, but as he did not give evidence, one is really left with the medical reports and, as I have already said, the predominant view is that the plaintiff's back condition is due to the injury.

12. However, as far as the future is concerned, I think that there should be taken into account in favour of the defendant that the plaintiff's degenerative condition was such that it might at some time have given rise to a condition in the low back similar to that from which she now suffers. As far as the neck is concerned, it is true that the plaintiff had suffered from problems in that area also before the accident, indeed to the extent that surgery was once contemplated and only avoided because she found some comfort in naturopathic techniques. It is also clear that the plaintiff has for many years suffered from kidney trouble, which itself gives rise to pain in the groins and that this pain extends into the spinal area. The plaintiff herself claims that she can distinguish between the kidney related pain and the pain in the low back which she ascribes to the injury. However, the evidence leads me to the conclusion that the low back pain is not confined to the lumbo-sacral area. That is confirmed by the recent discography. I conclude further that there is a degenerative condition in the plaintiff's lower spine as high as the L2/3 level. It is quite possible therefore that the plaintiff may confuse the condition associated with the kidneys with that in the lumbar spine. In any event, whilst it is clearly probable that any pain in the lumbo-sacral area is related to the injury, it is not so clear that pain higher in the lumbar area is so connected. Hence, as far as the plaintiff's future is concerned, consideration must be given to the contingency that she might in any event have suffered from a generally degenerative spinal condition and aggravation of it from time to time. In addition, there is the real possibility that in the future the symptoms and disability which are now seen as resulting from the injury will be overtaken by the degenerative condition. There is also the real possibility that whatever be the situation in the lumbar spine, the symptoms there will be overshadowed by the kidney related symptoms. In other words, the pain and disability resulting from the kidney condition may become incapacitating in themselves, thereby overshadowing and displacing the role that the lumbar condition has hitherto played in affecting the plaintiff's lifestyle and capacity for work.

13. These findings then have to be translated into dollars and cents. As far as the past loss of earnings is concerned, there were admitted into evidence two reports of a consultant accountant, Mr. G.W. Davis. Mr. Davis also gave evidence. Mr. Davis' expertise was not challenged nor were the conclusions in his reports nor the premises and assumptions upon which those conclusions were based. In short, Mr. Davis acted upon material which he had obtained from the relevant Commonwealth authorities relating to the times that the plaintiff had lost from her work as a Commonwealth car driver from the date of injury to the date of the hearing. He also had data concerning the compensation that had been paid to the plaintiff in that period. He also had material relating to pay rates and actual pay levels amongst Commonwealth car drivers. The data upon which Mr. Davis based his conclusions was not itself in evidence but it is apparent that those advising the defendant, quite properly and sensibly and no doubt for good reason, accepted as accurate the material upon which Mr. Davis based his report and his conclusions. I think it sufficient then to say that I accept the conclusion of Mr. Davis that as far as the past is concerned the plaintiff, through absence from work from time to time due to symptoms which I relate to her injury, lost a net sum of $19,547.89. Mr. Davis estimated the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component to be $7,071.11, which I accept.

14. To estimate the plaintiff's loss of earning capacity in the future, however, is a much more difficult matter. The current base weekly rate payable to a Commonwealth car driver is $362 per week gross. In addition, the drivers mostly earn substantial amounts by way of overtime and penalty payments. The figures that Mr. Davis obtained from the Commonwealth showed an average of just over $52,000 per annum gross for drivers employed in the same capacity as the plaintiff. In my view, that figure should be approached with caution because it was an average of the earnings of only four drivers. Nevertheless, that average may be used as some sort of a guide. The plaintiff's gross earnings for the financial year ended 30 June 1989 was $38,639. This included about seven weeks compensation. A rough comparison between the earnings of the plaintiff for that financial year and the average which Mr. Davis had taken into consideration is about $170 per week net. On the face of it, this appears to place an extraordinarily high value on the plaintiff's loss of earning capacity. However, it more or less coincides with the figure which Mr. Davis assessed as representing the income foregone by the plaintiff in the same year.

15. In any event, the financial year ended 30 June 1989 might not be the appropriate base. By comparison, in the period 1 July 1989 to 3 November 1989, the loss of income is shown in Mr. Davis' figures as $1,960 gross which is about $60 per week net over that period.

16. Another approach would be to take the seven weeks lost in the year ended 30 June 1989, apply the plaintiff's average net weekly earnings at that time which were about $750 per week, and then calculate from the figure arrived at a notional loss occurring evenly throughout the year. The result is about $100 per week, and I think that that figure fairly represents the plaintiff's periodic loss of earning capacity to date.

17. The plaintiff is now nearly 50 years of age. I am not convinced that on the balance of probabilities the motor vehicle injury will continue forever to be a significant cause of her work incapacity. I note that on the 3% discount tables a loss of $100 per week for five years has a present value of $24,300 and for a period of ten years a present value of just over $45,000. Because there can be no pretence at mathematical accuracy, I take these figures into consideration to award for future loss of earning capacity a round figure of $25,000, without further discount for contingencies, which is the best I can do to assess the value of the plaintiff's future loss of earning capacity.

18. I award $27,500 for general damages including pain and suffering and loss of enjoyment of life as well as future out-of-pocket expenses and the contingent expense of a further operation to the lumbar spine.

19. Out-of-pocket expenses were claimed amounting to $12,012.93. Since the hearing I have been furnished with Comcare documents which appear to bring the figure up to $17,795.29 as at 21 December 1989. Interest is claimed and will be awarded on the past component for pain and suffering which I put at $17,500 at the usual rate of 7%. In addition I would award interest for the difference between the award for past loss of earnings and the amounts paid to the plaintiff under Comcare. The Comcare figures furnished after the hearing appear to amount to $14,686.01.

20. I propose in the circumstances and at this stage to publish these findings and direct the parties within seven days to bring the matter back before me for mention so that I can direct the entry of judgment for the damages awarded together with the interest to be calculated.