Margaret Lam v Benny Man Shan Lee [1991] ACTSC 4 (31 January 1991)

SUPREME COURT OF THE ACT

MARGARET LAM v. BENNY MAN SHAN LEE
S.C. No. 1975 of 1986
Damages

COURT

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

CATCHWORDS

Damages - Personal Injuries - Motor Vehicle Accident - Assessment - Whiplash - No Issue Principle

HEARING

CANBERRA
31:1:1991

Counsel for the Plaintiff: Mr S. Wilcox

Solicitors for the Plaintiff: Peter Smyth Burnett and Co.

Counsel for the Defendant: Mr G. Parker

Solicitors for the Defendant: Crossin Power and Haslem

ORDER

Judgment be entered for the Plaintiff in the sum of $45,308.71.

DECISION

This is an assessment of damages for personal injuries which the plaintiff sustained in a motor vehicle accident on 3 June 1985.

2. The plaintiff was a single lady born on 3 December 1963. She left school at year 9, and worked at a number of different occupations.

3. On 20 May 1985 she obtained a contract to work as a clerical assistant with the Department of Primary Industry for three months.

4. On 3 June 1985 she was a passenger in a car being driven by a friend in peak hour traffic after work. She was wearing a seat belt. The car was struck from behind by another vehicle and pushed into the car in front. Her head was thrown forward and back a number of times. She did not collide with any part of the car, and did not lose consciousness. She began immediately to suffer a headache, she thought from the shock of the accident.

5. An ambulance took her to Woden Valley Hospital where she presented complaining of a sore neck and left shoulder region. Examination revealed slight tenderness over the cervical spine, but there was no neurological deficit, and x-rays revealed no skeletal abnormality. She was treated with analgesics and allowed home where she went straight to bed.

6. The next morning her neck was very stiff and sore. She was driven to the hospital, where tenderness around the neck muscles was noted. She was given analgesics and a soft collar and advised to consult her own doctor, who was Dr Nelson.

7. When he saw her she had developed swelling of neck and throat muscles with extreme tenderness on palpation, and pain on movement in any direction. Both temples were painful, the left more than the right. Her headache was severe. She had an aching in the region of the left scapula and all her cervical vertebrae were tender to touch. Dr Nelson noted that her long neck made her more susceptible to whiplash type injury. Her neck movements were full in range, but painful. Although the hospital had given her a prescription for Valium she did not want to use that particular medication.

8. Dr Nelson prescribed physiotherapy, and also gave her manipulations from time to time. He prescribed analgesics and anti inflammatory medications, and injected numerous trigger points with varying results.

9. After about two weeks the headache was no longer constant, but still frequent. The injections gave her relief for days at a time, but she did not feel like going to the doctor every three days.

10. The physiotherapy was intensive for some months, and then tapered off, but the plaintiff did not feel that it ever gave her much relief.

11. In October 1986, Dr Nelson noted:
"Unfortunately Margaret has had a rather prolonged course

of symptoms, and these have still not cleared up
completely despite treatment there has not been much in
the way of response. At present Margaret has decided that
physiotherapy is boring and does not make enough
difference to warrant her wasting time and expense in
continuing it, and with this I agree. She is swimming and
doing exercise at home and has a friend who gives her
massage. She hates doing nothing and spends some of her
time helping a friend who has a cleaning business. This
is, she says, so that she will not get fat or go mad. I
have not seen her for the past six weeks and she is
learning to live as normal a life as possible, and to
relegate the pain to an inferior position."

12. Since about 1977 the plaintiff had been under the care of Dr Stone, an Ear Nose and Throat Surgeon, for treatment of a chronic right ear infection. In 1981 he had found it necessary to carry out reconstructive surgery, following which her hearing deficit was 4.5%.

13. After the accident the infection flared up. She went to see Dr Stone. He noted some inflammation but felt no active treatment was indicated. After about 7 months the inflammation had gone down, but she thought her hearing had deteriorated. On review in June 1987 Dr Stone noted a deficit of 8% in the right ear. He felt however that no operation would be justified. The condition is stable, and has no economic consequence.

14. During the six or seven months till the end of 1985 the plaintiff was off work and receiving compensation. She was bored, and sick of doing nothing except get treatment for her pain. She terminated her compensation payments, and in January 1986 registered with the Commonwealth Employment Service. She informed the Department of Primary Industry that she was available for work, but did not hear from them. She made enquiries for various types of work without success. In fact she did not obtain further work until May 1988.

15. The defendant puts in issue his responsibility for the plaintiff's loss of income over the whole of that period.

16. In October 1986 Dr Nelson reported that the plaintiff was swimming and spending part of her time helping a friend who had a cleaning business. She had not been to see him for the six weeks previously. He thought it too early for a definite prognosis, and thought it would be more useful to give one in six month's time, that would be about April 1987.

17. That is not to say that Dr Nelson gave it as his opinion that she was not then fit for work. He did not. In fact, in his report dated 28 July 1987 he reported that in November 1986 the plaintiff had been "feeling great, as she said herself".

18. However, on 9 November she fell while waterskiing, and injured her neck again. Treatment was by very gentle mobilisation and exercises, and in a short time the condition settled down again.

19. In July 1987 she started a typing course, and experienced pain in her neck and both shoulders. His final comment was:

"I believe that Margaret is doing very well and leading a
normal life and coping well with her pain. I believe the
pain will continue to bother her for maybe many years but
that it will be intermittent and that hopefully, it will
be amenable to physical treatment, most of which she can
do herself.
Thus, Margaret will be able to live a normal and active
life but, will probably have times when her neck will
cause her pain."

20. Her solicitors referred her to Dr Corry in September 1988. He noted a full range of movement of the cervical spine with some discomfort at the extremes of rotation, and some tenderness in the muscles at the back of both shoulders. No other significant abnormalities were detected.

21. She told Dr Corry that she had been ready to return to work when she terminated her compensation payments. His conclusion was:

"The history is consistent with soft tissue injury as a
result of whiplash type trauma in the rear end collision
described. Acute symptoms appear to have settled over a
period of several months and she has persisting minor
symptoms. She reports restriction in heavier lifting and
carrying, but is able to carry on most other normal
activities. Such restrictions are consistent with the
injuries described. She did not inform me of her
involvement with the Commonwealth Rehabilitation Service
so I am unsure of the type of assessment performed and
which she informed you aggravated symptoms.
It is my impression that she would be fit for selected
duties (restricted lifting, carrying and no sustained neck
flexion posture). Previous aggravation appeared to relate
to heavier upper limb use and should be avoided. Within
these limitations, she should manage reception or selected
clerical duties."

22. Her solicitors also sought Dr Danta's opinion in May 1989. She was by then back at work, and not losing any time off. Dr Danta's reports seem to me in broad terms to accord with Dr Corry's.

23. To some extent her more recent episodes of pain are the result of independent incidents such as the fall at waterskiing, and the accident with the horse, but on the other hand the relevant accident left her more vulnerable to injury from those types of incidents.

24. The job that she had at the time of the accident was on a temporary contract basis, due to expire on 19 August 1985. There is no evidence whether the contract would have been renewed, or whether, with her previous employment history, she would have obtained other work after that date without significant interruption. I am inclined to the view that she would probably have sought work, and might well have obtained it without too long a break. But, giving her the benefit of the doubt on that issue, I am not satisfied that the injury that she suffered in this accident caused her any loss of income earning capacity that resulted in actual loss to her beyond the beginning of 1986.

25. The injury did however leave her to some extent prone to exacerbation, though she still enjoys water skiing.

26. For her pain and suffering I award the sum of $25,000.00 of which I apportion $20,000.00 to the past for the purpose of awarding interest. For her loss of income I award the sum of $5,000.00. In lieu of interest on those amounts I award a lump sum of $12,000.00. The out-of-pocket expenses were not contested at $2,187.51. The Fox v Wood component of compensation monies that she must repay is $1,121.20.

27. The total award is therefore made up as follows:

Pain and suffering $25,000.00
Loss of income $ 5,000.00
Interest $12,000.00
out-of-pocket Expenses $ 2,187.51
Fox v Wood $ 1,121.20
Total $45,308.71

I direct the entry of judgment for the plaintiff in the sum of $45,308.71.