Francesca Nappo v Commonwealth of Australia [1991] ACTSC 10 (26 February 1991)

SUPREME COURT OF THE ACT

FRANCESCA NAPPO v. COMMONWEALTH OF AUSTRALIA
S.C. No. 711 of 1987
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Soft Tissue Injury to Neck and Back - Post Traumatic Stress Disorder - Exaggeration of Symptoms - No Issue of Principle.

HEARING

CANBERRA
26:2:1991

Counsel for the Plaintiff: Mr R. Mildren

Solicitors for the Plaintiff: Messrs Baker Deane and Nutt

Counsel for the Defendant: Mr R. Crowe

Solicitors for the Defendant: Australian Government Solicitor

ORDER

Judgment be entered for the Plaintiff in the sum of $56,766.08.

DECISION

This is an assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 13 May 1987.

2. The plaintiff was born in Italy in 1941. In 1965 she married and came with her husband to Australia. They had three sons, now aged 24, 20 and 17.

3. While her family was growing up she did not go out to work, but her husband, at a time which is not here relevant, went into business as a painting contractor, and in accordance no doubt with the usual accounting advice did so in equal partnership with his wife. She performed the usual clerical duties, did some of the lighter work such as cleaning, and drove a motor vehicle in the course of the business, doing such tasks as delivering materials and doing the banking.

4. In 1977 her general practitioner referred her to Dr Coupland, a consultant physician, for reassurance about her general health when she had symptoms of an anxiety state.

5. In 1979 she again started to feel depressed, with her anxiety exacerbated by physical symptoms. Dr Coupland prescribed Drazepan and later referred her to Dr Truman, psychiatrist, whom she saw in September 1980. He diagnosed a moderately severe anxiety tension syndrome, and described he as "a rather sensitive perfectionist personality, who is always on the go, always looking for more work to do - finds it very difficult to just let go and do nothing." After six months on simple psychotherapy and introduction to relaxation techniques she had improved to the extent that she was virtually free of symptoms, took very little medication, and was able to discontinue her visits to Dr Truman.

6. On 13 May 1987 she was driving a car in Fairbairn Avenue in Canberra with her 14 year old son as a passenger. She was wearing a seat belt. The car was involved in a collision with a naval bus which crossed her path at an intersection.

7. She did not lose consciousness. The car door was jammed by the force of the impact. She was unable to undo her seatbelt. Her son escaped from the vehicle and helped her out. She took a few steps off the road and collapsed.

8. She was feeling severe pain especially in her chest and neck. She had difficulty breathing.

9. An ambulance took her to Royal Canberra Hospital, where she was observed for some hours, and then allowed home. There she went straight to bed. She was shocked, in pain, and suffering from attacks of vomiting and diarrhoea.

10. Dr Madew, her general practitioner, visited her at home the next day and prescribed pain killers and ointment. She stayed in bed for about two weeks.

11. Later Dr Madew referred her to a physiotherapist, whom she first saw on 25 May, and thereafter at fairly frequent intervals for some months.

12. In July 1987 Dr Madew referred her to Dr Vance, orthopaedic surgeon. Her knees were still bruised, but improving. She was still wearing a soft collar and attending physiotherapy, and suffering restricted neck movements.

13. In September 1987 Dr Vance noted some improvement overall, though there was still pain in the neck and chest, low back pain and pain in both knees. X-rays showed minor degenerative changes about the lumbar region.

14. On 13 October he thought she was making no progress. The degenerative changes had been aggravated by the accident. Her legs swelled a lot.

15. She was referred to Dr Maguire, rheumatologist, who saw her on 1 Devember 1987. He thought her symptoms warranted further investigation by CT scan and nerve conduction studies, which were normal. He confirmed his initial diagnosis of soft tissue and ligamentous problems, and expected her symptoms to improve gradually over six months or so. He did note, however, her anxiety and agitation, and recommended anti depressive medication.

16. Her anxiety did not improve, so that in March 1988 Dr Madew sent her to consult Dr Truman again. He noted the usual symptoms which in his opinion fulfilled all the criteria for post traumatic stress disorder. Her phobia about driving a car had returned.

17. In December 1988 Dr Truman left Canberra to practice in Adelaide. By that time he thought her general mental state was good, there was no significant depression, but her driving phobia was still a problem.

18. Dr Robson had examined her for the defendant in December 1987, and in November 1988 Dr Truman asked him to review her condition. The lower back had settled down, but she was having trouble in the neck and right shoulder and arm. He thought only surgery could relieve the symptoms.

19. In February 1989 Dr Madew sent her to Dr K.N. Chandran for a second opinion. She told him she was moderately restricted in her household activities. He found on examination stiffness in the right shoulder with gross restriction of movements and tenderness and impaired sensation in the tips of all the fingers of the right hand. The neck showed mild restriction of movements and tenderness over the facet joints.

20. In giving her evidence about her present complaints the plaintiff claimed that she was not able to drive a car. She was not able to give her husband any help in the business. She was restricted in her ability to do household chores. On many occasions she could not put washing on the line. In Court she demonstrated an inability to lift her right arm more than 45 degrees above the horizontal in front of her or the left much above shoulder level, and an inability to bend forward to the extent that her hands were much below knee level. She could not vacuum clean or clean windows, do any gardening or mow the lawn, or do the ironing for much more than half an hour.

21. There was in evidence a video tape which showed her hanging clothes on the line with both her arms fully extended above her head. Sometimes she was obviously standing on a step that her husband had made to help her put clothes on the line, but not always. She was also recorded bending over completely while doing some weeding in the garden. I think that the evidence of Dr Cairns acquired quite some force in the light of the observations recorded on the video tape. He examined the plaintiff on behalf of the defendant on 18 November 1987 and 26 April 1990.

22. At that examination he noted that while she was disrobing she was seen to move both the cervical and lumbar areas reasonably freely when not aware of being observed, but when subjected to specific examination there was the onset of restriction of movement throughout the spinal column. There were also other inappropriate responses to some of his tests.

23. His summary was that she had suffered a variety of minor soft tissue injuries which would ultimately resolve with time, but that many of her ongoing disabilities are subject to some degree of psychogenic magnification. He was shown part of the videotape, and concluded that the psychogenic origin was voluntary.

24. Dr Chandran had seen her again on 11 October 1990. He had then reported that examination of the neck suggested persisting problems of soft tissue injury with tenderness over the facet joints. As to the lumbar region there was extensive sensory loss which could not be explained on the basis of an organic condition.

25. He was shown a part of the videotape. He then considred that Mrs Nappo had exaggerated her condition to him when demonstrating restriction of movement and pain. On the basis of what he had seen he did not see any restriction of spinal movement that would contribute to pain with physical work, and there was no reason why she should not be doing normal domestic duties.

26. On 28 November 1990 the plaintiff was seen for a medico legal assessment by Dr Saboisky, consultant psychiatrist. Dr Saboisky gave evidence. In his report he noted that she was moderately tense but not clinically depressed. There was, he thought, a very clear history of post traumatic stress disorder quite intensively for a short time. With the passage of time the acute nature of her anxiety had settled, but she continued to have a general phobia about future catastrophies and a specific fear of driving and of being a passenger.

27. At the end of his cross-examination he agreed with the proposition that she had post traumatic stress disorder for two years after the accident, with some minor ongoing symptoms after that.

28. I must come to my own conclusions on the whole of the evidence. I think that the contrast between her videotaped behaviour and her descriptions of her symptoms to doctors and to the Court is too marked to be explained away by cultural considerations or by variations in her symptoms. I think that it is highly likely that after she receives the fruits of this litigation her abilities and her attitudes will be considerably better than those initially propounded on her behalf.

29. She was involved in a terrifying accident, which caused significant soft tissue injury to the neck and back, which persisted for a number of years, but which have now settled down, but not disappeared completely. She will always suffer some discomfort from them. No operative treatment is called for or likely to help.

30. She had a vulnerable emotional make up before the accident. As a result the accident and her injuries caused a marked post traumatic stress syndrome, which was intense for a short time, but improved over about two or three years. I note she has retained her driver's licence, and she may well drive again, but it is quite understandable that she will always suffer anxiety as a driver or passenger in a motor vehicle.

31. Otherwise I think that her continuing disabilities will be relatively minor, and will not significantly impair her capacity for normal household tasks, although she may suffer discomfort from time to time while carrying them out.

32. For general damages I award her $35,000.00. For the purpose of assessing a sum in lieu of interest I regard little of that sum as being attributable to the future, and the bulk of it as being attributable to about the first two years after the accident. I award a lump sum of $11,000.00 for interest.

33. A claim was made for the value of services provided voluntarily by members of her family. In my view it is reasonable to allow such a claim for a period of about three months after the accident, being fairly intensive for the first four weeks or so. I allow the sum of $1,500.00 for this head of damage.

34. The out-of-pocket expenses are agreed at $7,266.08.

35. A claim is made for the cost of future medical treatment and pharmaceuticals. In the view I take of her future that claim can not be sustained as a large one, though there may be some continuing liability. I would allow a sum of $2,000.00 to cover that contingency.

36. The total award is therefore made up as follows:
General damages $35,000.00

Interest $11,000.00
Griffiths v Kerkemeyer $ 1,500.00
out-of-pocket expenses $ 7,266.08
Future medical expenses $ 2,000.00
Total $56,766.08

I direct the entry of judgment for the plaintiff in the sum of $56,766.08.