Veronica Catherine Snowden v Andrew George Barton [1991] ACTSC 39 (8 July 1991)

SUPREME COURT OF THE ACT

VERONICA CATHERINE SNOWDEN v. ANDREW GEORGE BARTON
S.C. No. 582 of 1989
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injuries - Motor vehicle accident - Whiplash - Cloward's procedure - Good recovery - No issue of principle.

HEARING

CANBERRA
8:7:1991

Counsel for the Plaintiff: Mr R. Mildren

Instructing solicitors: Messrs Gary Robb and Associates

Counsel for the Defendant: Mr P. Crittle

Instructing solicitors: Messrs Crossin Power Haslem

ORDER

There be judgment for the plaintiff in the sum of $66,474.87.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 21 March 1989.

2. The plaintiff was born in 1952 and is married with three children. In 1988 she obtained a position as a teller with CPS Credit Union which became a full-time job in May 1988.

3. On 21 March 1989, she was driving to work in Northbourne avenue. She was wearing a seat belt. She stopped for a red light at the Macarthur Avenue intersection. She heard a bang and then another bang behind her and then felt the jarring of an impact. Her car was forced into the car in front of her. She was thrown forward and back. She felt immediately a stinging sensation in her neck and right arm.

4. After the necessary details had been given to the police and she had contacted her work, she went home with her husband. That afternoon she went to see her general practitioner, Dr Appleby.

5. On examination, he noted that active neck movements were considerably diminished in all directions. Passive movements were fuller. There was diminished sensation in the left middle finger. He diagnosed traumatic cervical strain and referred her for x-rays, which did not disclose any abnormality. He prescribed anti-inflammatory medication and physiotherapy.

6. The next day she went to work. She had a lot of pain in her neck and left trapezius area and down her left arm. She was able to stay at work only till lunch time.

7. She was not able to sleep well at night. She attended physiotherapy and used a TENS machine. Her progress was slow and in April 1989 Dr Appleby decided that she should see a specialist.

8. In July 1989 he noted that she was complaining of pain in the neck, particularly while driving a car, a dragging pain in the left wrist and a band tightening effect on the left elbow. Her relationship with her husband was markedly affected because of the constant pain. She thought then that she might be able to get back to work, if only on a part-time basis, in about two week's time.

9. A CT scan was taken on 31 July 1989. Her headaches had subsided but she was still experiencing pain on the C6 nerve root distribution area on the left arm and hand. She had not been able to return to work. On examination, Dr Andrews, consultant neurologist, noted spasm and restriction of movement on the left side at C5/6 and C6/7. Neck movements were moderately restricted.

10. He diagnosed a ruptured C5/6 disc and recommended a Cloward's procedure. He ordered a MRI scan which confirmed the disc lesion and he referred her to Dr Chandran, neurosurgeon. Dr Owen White, neurologist, also saw her in August 1989 and, although he agreed with Dr Andrews' diagnosis, he was not as convinced as was Dr Andrews, that she would not recover without the operation. When he saw the MRI scan, however, he suspected that she would require surgery.

11. Dr Chandran saw her initially on 28 November 1989. He investigated with a cervical discogram which showed no abnormality at C4/5 or C6/7. He therefore advised and carried out a fusion at C5/6 on 26 February 1990.

12. She spent about a week in hospital. She noticed an immediate relief in the arm symptoms but suffered discomfort and pain at the donor site on her hip.

13. X-rays in June 1990 showed good union at the operation site. Dr Chandran's opinion then was that the periodic pain that she was getting on extending the neck and the soreness over the left side of the neck and shoulder would gradually subside and that she might return to work, initially on a part-time basis if necessary.

14. In mid June 1990 she was seen by Dr Roger Vanderfield and Professor Tracy for the defendant. Their views did not differ significantly from those of Dr Chandran.

15. She returned to work on a full-time casual basis in June 1990. She did not go back to being a teller because she thought that she would not be able to stand for the lengthy periods required. She was given the task of credit control which she is able to handle without difficulty.

16. She is left with occasional symptoms in her neck and arm and is conscious of the need to be careful lifting weights. She had been very active before the accident but is now wary of activities such as water skiing or snow skiing. Her doctors advised her to give up squash.

17. For her pain and suffering I award $27,000.00, of which only $2,000.00 would relate to the future. For interest on the past component I award $2,300.00.

18. She was unable to do any housework for a time after the accident. The sum of $1,000.00 has been agreed as a reasonable amount and I think her state would have been such as to take the situation beyond a mere re-arrangement of household chores for the short time involved.

19. The out-of-pocket expenses are agreed at $12,223.13. The loss of wages is agreed at $20,648.45. She received about $18,000.00 in worker's compensation and the Fox v Wood component is agreed at $2,954.29. I award $350.00 as interest on the difference between the wages lost and the compensation received.

20. The total award is therefore made up as follows:-
Pain and suffering $27,000.00

Interest 2,300.00
Griffiths v Kerkemeyer 1,000.00
Out-of-pocket expenses 12,223.13
Loss of wages 20,648.45
Interest 350.00
Fox v Wood 2,954.29
Total $66,475.87

I direct the entering of judgment for the plaintiff in the sum of $66,475.87.