Andrew John Tierney v Brian Norman Laundess [1991] ACTSC 15 (6 March 1991)

SUPREME COURT OF THE ACT

ANDREW JOHN TIERNEY v. BRIAN NORMAN LAUNDESS
S.C. No. 1099 of 1988
Damages

COURT

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

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Lumbar Soft Tissue Injury - No Issue of Principle

HEARING

CANBERRA
6:3:1991

Counsel for the Plaintiff: Mr S. Wilcox

Solicitors for the Plaintiff: Mallesons Stephen Jaques

Counsel for the Defendant: Mr Crittle

Solicitors for the Defendant: Crossin Power Haslem

ORDER

Judgment be entered for the Plaintiff in the sum of $23,137.24.

DECISION

This is an action for damages for personal injury suffered by the plaintiff in a motor vehicle accident on 6 February, 1986.

2. The plaintiff was born in 1964. In February 1986 he was still engaged in study leading towards his present occupation of physiotherapist. He had come to Canberra to gain work experience with Mr Bond at the Australian Institute of Sport, and for about two weeks he was residing at that institution.

3. He was a very fit young man. His only previous injuries had been slight, to the right ankle in 1983 and the right knee later in 1985. They had left no disabilities. He enjoyed many sporting activities, including surfing, Australian Rules football, skiing, tennis and triathlons.

4. At about 7 a.m on Thursday 6 February 1986 he was riding a bicycle on Haydon Drive, Bruce, approaching the intersection of that street with College Street. Haydon Drive forms the top of a T intersection, with College Street approaching it from the plaintiff's left as he rode towards it. He was aware that traffic approaching Haydon Drive along College Street was controlled by a Give Way sign.

5. As he rode towards the intersection he saw the defendant's vehicle driving along College Street towards the intersection. It appeared to him to be slowing, in obedience to the Give Way sign. He proceeded on. As he got closer to the intersection the defendant's vehicle came out in front of him. He had no opportunity to brake. His bicycle collided with the car at about the driver's side front wheel. He was thrown over the front of the car on to the roadway. He finished up lying stunned, on his back, on the ground some distance away from the car.

6. It is clear that the defendant was negligent in not obeying the Give Way sign and allowing the plaintiff to pass in front of him before proceeding into the intersection.

7. A defence of contributory negligence was raised, and one or two desultory questions were directed to the issue by counsel for the defendant, but I am not persuaded that the plaintiff failed in any respect to take care for his own safety. The defendant did not give evidence. The defendant's vehicle appeared to be about to obey the sign. There was no evidence of any circumstance that should have made the plaintiff suspect that it might suddenly continue on into his path.

8. There will therefore be judgment for the plaintiff, without any deduction for contributory negligence.

9. The plaintiff was stunned for a short time. A passer by helped him to the median strip. He was taken by ambulance to Royal Canberra Hospital where it is recorded that he complained of pain in the left thumb, left wrist and lower lumbar spine. It is understandable that he suffered other miscellaneous bruises and abrasions.

10. X-rays disclosed a minor congenital defect of S1, but no bony abnormality or joint or disc lesion referrable to the accident.

11. Lumbar muscle bruising was diagnosed, and he was advised to rest for one day.

12. After two or three hours at the hospital he went back to the Institute of Sport, where he was given some ice packs to settle the bruising, and he returned to his room for the rest of the day.

13. He resumed his activities of work experience the next day. His general aches and pains subsided. Within the fortnight he drove back to Melbourne. His lower back was uncomfortable as he did so.

14. He continued his studies for his physical education degree.

15. In evidence he stated that he tried to get back to his normal sporting activities, but was not successful because of discomfort in his lower back. There was a dull ache, and at times numbness and pins and needles down the right buttock, right thigh and down the right calf to the ankle.

16. Dr Bartlett, orthopaedic surgeon, had seen him in connection with the right ankle sprain in 1983 and the right knee injury in 1985. He consulted Dr Bartlett again in June 1986, about four months after the accident. Dr Bartlett reports that he was troubled by an injury to his left knee following an incident at football. He made a good recovery with conservative care. There was no complaint recorded of lower back discomfort or numbness and pins and needles down the right buttock, thigh or calf.

17. He next saw Dr Bartlett on 3 December 1986. For ten weeks before that, he told the doctor, he had been troubled by low back pain following a minor stress. He could recall no specific injury, though he did mention the accident in February. He had been having physiotherapy. There was no complaint of radiation of pain down the leg, he had a full range of movement of the spine, there was no restriction of straight leg raising and no signs of nerve root compression.

18. Nevertheless, Dr Bartlett considered that the complaints could be related to the accident. His view was that there had been a relatively minor degree of low back pain and stiffness, due originally to muscle bruising, which recurred due to a minor lumbar disc strain.

19. He thought in January 1987, that there should be a good recovery, with some minor residual occasional low back pain aggravated by heavy lifting or excessive bending.

20. There is no report from the plaintiff's general practitioner, Dr Stevenson, but in July 1988 Dr Stevenson referred him to another orthopaedic specialist, Dr McKenzie.

21. The history that he gave to Dr McKenzie was that after the accident he experienced persistent aching and stiffness in the low back, but not to a level at which he sought medical attention. Then, in September 1986, while walking normally he developed severe right sided back pain and right sciatica, and at the same time he found it difficult to stand erect. He said he had not sought treatment, but had physiotherapy and chiropractic treatment, until in mid 1987 he had been referred by Dr Martin to Dr Speck, an orthopaedic specialist, who had ordered CT scan and Magnetic Resonance Imaging tests.

22. Dr McKenzie's physical examination did not disclose any points of local tenderness, or any impairment of movement. He did complain of pain at the extremes of some movements. Sciatic and femoral nerve stretch tests were negative. All the x-rays, CT scans and magnetic resonance films were within normal limits in her opinion.

23. Dr McKenzie gave evidence and was cross examined. She thought that there was some discogenic damage, namely scarring about the first sacral nerve root sheath and a degree of chronic lumbar ligamentous strain. However, since all the tests were within normal limits, and disclosed no organic damage, the only clinical evidence on which she relied was the history given by the plaintiff.

24. I am aware, from some years of experience, that some doctors are more laconic in their recording of complaints and history than others. But the picture painted by Dr Bartlett of what the plaintiff told him in December 1986 is so different from what the plaintiff claimed in evidence and what he told Dr McKenzie that I am forced to place less reliance on the clinical history that he gave to Dr McKenzie, and therefore on her opinion, than might otherwise have been the case.

25. There are no reports by any of the other doctors whom the plaintiff claims to have consulted. I can only assume that it was thought that if reports existed they would not assist the plaintiff's case.

26. I am not persuaded that the plaintiff in fact experienced the sciatic type pains of which he complained. I am not persuaded that there has been any discogenic damage or residual soft tissue scarring.

27. Even Dr McKenzie puts his back impairment at only 2% on the standards of the AMA assessment guide.

28. I think that the description of his injury and disability given by Dr Bartlett accords best with reality.

29. For his pain and suffering I award the sum of $18,000.00. For interest on that sum, I award $3,665.00. There is no loss of income claimed, either past or future.

30. The evidence about the out-of-pocket expenses was not satisfactory. I am not satisfied that all of them were in fact incurred as the result of the accident, or that if incurred they were reasonably necessary. It is however difficult to sort out those that were from those that were not on any rational basis founded on the evidence. It is for the plaintiff to prove his claim.

31. The items that were proved to my satisfaction were:
Ambulance $ 132.00

Dr Maguire $ 28.00
Dr Stone $ 20.00
Mr Kenehan $ 60.00
Joy Manson $ 20.00
Mr Selvaratnam $ 150.00
CT Scan $ 225.00
Dr Speck $ 149.00
Dr Brown $ 47.34
St Francis Cabrini Hospital $ 234.00
MR1 $ 250.00
X-rays $ 156.00
$1,472.24

On the basis that Medicare will be repaid any amounts that it was improperly induced to pay I award the sum of $1,472.24 for out-of-pocket expenses.

32. The total award is made up as follows:

General Damages $18,000.00
Interest $ 3,665.00
out-of-pocket expenses $ 1,472.24
Total $23,137.24

I direct the entry of judgment for the plaintiff in the sum of $23,137.24.