Isabella Smith v Michael Smith [1991] ACTSC 40 (8 July 1991)

SUPREME COURT OF THE ACT

ISABELLA SMITH v. MICHAEL SMITH
S.C. No. 504 of 1988
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injuries - Motor vehicle accident - Severe whiplash - Cloward's Procedure at two levels - Reactive depression - No issue of principle.

HEARING

CANBERRA
8:7:1991

Counsel for the Plaintiff: Mr B. Salmon QC with Mr C. McKeown

Instructing solicitors: Messrs Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr J. Hartigan

Instructing solicitors: Messrs Abbott Tout Russell Kennedy

ORDER

There be judgment for the plaintiff in the sum of $232,607.93.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 30 July 1987.

2. The plaintiff was born in Scotland on 17 October 1942. She was therefore 44 at the time of the accident, and is 48 now.

3. She left school at 15 and spent some years in the Army, from which she was discharged on her marriage. She and her husband had four children and came to Australia in 1973.

4. Her husband joined the Royal Australian Air Force and they lived in Adelaide and Richmond before he was posted to Canberra when they eventually went to live at Captains Flat.

5. Five months later in September 1980, she was admitted to Woden Valley Hospital for investigation of weight loss, fainting turns, chest pains, tachycardia and momentary loss of vision. Dr Hutton, the general practitioner who sought her admission, described her as:-
"a rather exuberant, emotional lady and I now begin to

wonder if this is not the predominant factor."

6. She underwent a fairly extensive battery of tests over a period of about two weeks, but was discharged with the notation the Discharge summary of "Undiagnosed ?TB". Her evidence was that it was later suggested that she suffered from an allergy to something specifically at Captains Flat. The family moved to Giralang and the problems of which she had complained disappeared.

7. In 1982 her youngest child began high school and she began seeking work. Between then and 1986 she had a number of temporary jobs, the only major problem with her health being an operation for an ovarian cyst.

8. Early in 1986 she had a number of investigations relating to the healing of a previous gastric ulcer. During 1986 also, she was caring for her stepfather, who was emotionally disturbed following the death of her mother.

9. In September 1986, her doctor referred her to Dr Bruce Smith with suspected systemic lupus erythematosis. She had suffered acute swelling of the joints, rashes and abnormal tiredness. Dr Smith thought it more likely that she had had a self-limited viral arthritis. On 30 September 1986 he noted that her mood was fluctuating quite a bit which he interpreted as a stress reaction and possibly mild depression. He concluded,

"I do think she has been under some psychological stress,
particularly since she gave up her job earlier this year
when she had the gastric ulcer. I know that she was
advised not to work, but the boredom at home has been more
stressful to her, and I think she would be happier were she
to return back to employment."

10. She began to work in a photographic mini laboratory for Rabbit Express at Dickson, being responsible for the operation of the machine and for training and supervising other staff.

11. Her general practitioner, Dr Guirguis, noted in May 1987 that she had complained of having suffered from "arthritis" for the previous 16 years but Dr Guirguis explained in evidence that the word was used in a non-specific sense, concerning aches in the joints. Treatment with Feldene eased the ache and the doctor ascribed it to viral infection.

12. At about that time Rabbit Express went out of business and she obtained a position, again as Manager but with a different machine, with a photographic mini laboratory at Jewel Food Stores. She was in that position at the date of the accident. Her health at that time was good.

13. On her way to work on 30 July 1987 she was a passenger in a car being driven by her husband, being seated in the front seat and wearing a seat belt. Their car collided violently with the vehicle in front, which had stopped suddenly. She was thrown forward, then back, and her head collided with the neck rest of her seat. She did not lose consciousness.

14. She felt pain in the neck and shoulder and in the lower back. She decided however to continue on to work. As the day went on the pain got worse, but she managed to finish the day with the help of analgesics from the chemist.

15. At home she tried hot showers and hot packs but the pain did not ease so she went to the outpatients department at Royal Canberra Hospital. Examination there disclosed full range of movement in the neck and left arm and shoulder but tenderness over the neck muscles and left acromioclavicular joint. She was given analgesics and a sling for her left arm. She spent a very uncomfortable night.

16. She went to work again the next day, suffering severe neck and head ache. She continued to work, with the pain and discomfort increasing, until on 10 September 1987, she consulted Dr Guirguis. She complained of the neck, shoulder and back pain and also that by the end of the day she had numbness in the fingers of the left hand and impaired vision from the severity of the headache.

17. On examination, Dr Guirguis noted tenderness over the cervical spine and muscles around the spine, limited and painful movement of the neck, no tenderness over the trapezius muscle, limited extension at left shoulder joint and impaired superficial sensation over the left little finger. She was sent for x-rays.

18. X-rays disclosed no fracture or dislocation in the cervical spine but there appeared to be slight limitation of both flexion and extension. There was some small osteophyte formation at C3/4 and C4/5 levels but no other abnormality was detected.

19. She did not return to work and has not worked since.

20. She was also referred to Mr Rumore for physiotherapy but did not persist with the treatment. She consulted a chiropractor for manipulation, which did not help. She continued to see Dr Guirguis on a few occasions. She suffered some dizzy spells and on one occasion fainted. Dr Guirguis referred her to Dr Danta who saw her on 8 October 1987. She was then still hoping to be able to return to work. He diagnosed a whiplash injury, attributing much of the pain to excessive muscle contraction. He arranged for an E.C.G. to exclude such conditions as epilepsy. He advised medication for the dizziness, neck collar and relaxation exercises.

21. Her condition did not improve and Dr Guirguis referred her to Dr Newcombe who saw her on 29 October 1987. He arranged for a CT scan, which showed disc protrusion with degeneration at C4/5 and impingement by osteophytes on the C5 nerve roots. He advised a Cloward procedure, which he performed on 5 December 1988 at John James Memorial Hospital.

22. When Dr Newcombe reviewed her on 15 January 1988, he found some residual left sided neck pain, but the arm problems were much improved.

23. By 11 March 1988 she was complaining to Dr Newcombe of left shoulder pain with headaches. It seemed to him that her pain was becoming chronic and he referred her to Dr Lithgow.

24. Since they could not get any indication about when she would be able to work, her employe s terminated her employment as from 30 March 1988. The termination was also due to the fact that Jewel Food Stores had sold the photographic business and her previous position was no longer available.

25. She was also unable to cope with housework. She became depressed and Dr Guirguis prescribed anti-depressants.

26. X-rays taken on 7 March 1988 showed good fusion at the operation site of C4/5 but degenerative changes at C3/4 and C5/6 were also noted. Dr Newcombe advised a further operation at C5/6 and performed a Cloward procedure at that level on 25 May 1988 at John James Hospital.

27. In her evidence she said that this second operation did not effect any improvement. Dr Newcombe reviewed her on 26 August 1989 and his report indicates that she was then complaining of neck pain with radiation to the left arm towards the elbow, though she felt that there was considerably more mobility in the left arm than before the operation. She complained of low back pain but there were no other signs. He then thought there were no indications for further neurological intervention and that her residual pain might impair her ability to work.

28. Shortly afterwards, in September 1988, she was seen by Dr Howes, a rehabilitation specialist at Woden Valley Hospital. She told him she had become worse since the second operation. As a result of his examination he thought that she still had some symptoms related to the cervical nerves on the left but he thought the 7th cervical nerve appeared to be the one with major involvement. He advised general exercise but no actual treatment of the neck.

29. At about this time the Air Force was proposing to relocate her husband to Sale in Victoria. Dr Guirguis noted that she was in great need of help and emotional support with her daily living, especially from her husband. She referred her to Dr Rushworth, a Consultant Neurosurgeon in Sydney. He thought the symptoms indicated soft tissue problems rather than nerve root compression.

30. Physiotherapy only increased her pain, especially in the lower back, which got better after she stopped the physiotherapy in November 1988.

31. Dr Andrea saw her on 25 November 1988. His opinion and prognosis was as follows:-

"Mrs Smith appears to have suffered fairly significant
damage to her neck in her accident, ending up with a fusion
of C4/5 and C5/6 discs. The results of the operations have
not been good and I think her prognosis is poor. I think
the pains are likely to continue, more or less,
indefinitely. Unfortunately, she is very soon to move to
Sale, in Victoria and this will produce a problem with
Doctors. At present, she is waiting to see what happens to
her neck and I am not very hopeful.
She appears to have suffered some lower back strain in her
accident and now suffers some lower backache but this is
much less of a problem than her neck."

32. Dr Colin Andrews saw her for the defendant at about this time, on 14 October 1988, and arranged x-rays and electrical studies.

33. The x-rays that he reviewed of the cervical spine, taken on 9 October 1988, revealed only mild degenerative changes at C4/5 and 5/6. A CT scan on 11 November 1987 showed disc prolapse on the left at C5/6 and at C4/5 degenerative change without significant disc prolapse. Clinically, all her problems seemed to him to arise at the C6/7 level and he suspected that the Cloward's procedures might have been performed at the wrong levels. The electrical studies did not, however, provide objective evidence to support that hypothesis.

34. After the move to Sale in Victoria in January 1989, she was referred to Dr McNeill, a neurosurgeon. He believed that her symptoms were a combination of the physical and the psychological. He did not think that further surgery would be of any use, but suggested progressive physical mobilisation. He referred her for physiotherapy, which he expected would bring about some improvement but was moved to warn the plaintiff that it would be likely to be incomplete, not least because of the two operations that she had undergone.

35. Mrs Cunliffe, a physiotherapist, reported in June 1989 that treatment did help. Her cervical, arm and hand symptoms and headaches decreased markedly. She still had burning sensation in left upper scapula region, and intermittent headaches, but sensation had returned to her left hand. She also still had constant but not severe lumbar and right buttock pain. She was beginning to lose some weight. In April she had suffered aggravation of the pain in her back by a trip to Melbourne and back to see a specialist but the neck pain had not been greatly aggravated. It took over a month for her to get back to her previous state of improvement.

36. In January 1989 her general practitioner in Sale had referred her to Dr Cullen, psychiatrist, who had seen her in February, April, May and October of 1989. On 19 October 1989, Dr Cullen gave a detailed report to her solicitors. Dr Cullen gave evidence and was cross-examined by telephone.

37. At the first consultation she was quite obviously depressed and anxious. She had improved by April, so that he was able to advise a reduction in her medication. In May he did not assess her as being depressed and advised her to scale down her medication further.

38. She then missed an appointment and her general practitioner sent her to see Dr Cullen again in August 1989. It was clear to him that since she had ceased the use of Sinequan, she had slipped back considerably and had again become depressed and despondent. Her pain was once again poorly controlled. She was overeating and putting on weight again.

39. At the October consultation, she presented much better. On the medication she was then taking she felt she was coping well.

40. His overall assessment in his report was that the plaintiff was suffering from a reactive depression, which was attributable to the accident, and which was responding well to appropriate medication.

41. He was cross-examined about the extent to which her condition could be attributed to the accident. He commented,

"You can be certain that Mrs Smith is the sort of lady that
if you put her under stress of any kind she will develop
somatic symptoms."

42. He agreed that having regard to her psychiatric state, some upset could give rise to complaints of physical problems which need not necessarily exist organically. The information that he had from other doctors left him in no doubt that she had suffered a significant physical injury in the accident, and that would be the sort of incident that might well lead on to the chronic pain and discomfort and depressive reaction that she had suffered. In that situation, long term treatment with antidepressants, which could be supervised by her general practitioner, would be very helpful.

43. Dr Jensen, neurosurgeon, saw her for the defendant in November 1989. He was concerned about the possibility of a cervical disc injury at the C6/7 level. He thought her injuries were consistent with the accident, and that she was restricted in her abilities to light duties only. She would not then have been fit for her photographic work. When he saw her again a year later, in November 1990, she herself claimed that there had been no improvement. Dr Jensen thought she was more cheerful and resigned to her condition and assessed her disability with respect to the cervical spine as being no more than 20%, and in the left upper limb as no more than 10%. He thought it possible she might resume her pre-accident work, though this could be some years away.

44. In December 1989, her doctor referred her for further physiotherapy because of her continuing neck and arm pain and depression.

45. The defendant referred a number of the medical reports to Dr Spira, a consultant neurologist, in January 1990. Dr Spira did not examine the plaintiff. He gave evidence and was cross-examined by telephone. Essentially, his opinion was that there had not been sufficient evidence to have justified the carrying out of the two operations. He though that the plaintiff had developed excessive muscle contraction, essentially a tension syndrome, and that she had no cervical nerve root involvement at any level.

46. Dr Hughes examined her for the defendant in March 1990. His opinion was as follows:-

"It was apparent from the x-rays, which I have seen, that
this woman was suffering from degenerative disc disease in
her cervical lumbar spine prior to a car accident in July,
1987. It was apparent from the history that no major
injury was sustained to the neck or back in the accident
but it is possible minor soft tissue injuries resulted.
These would have resolved within a short period of time and
I would relate any continuing symptoms to the presence of
degenerative disc disease in her cervical and lumbar spine.
There appears to be a mild disability of her left upper
limb but this may well be iatrogenic as the numbness in her
fingers, for example, only occurred following the second
operation. I do not consider that she is significantly
physically disabled and I see no reason why she could not
manage her previous work."

47. Dr Newcombe reviewed her in August 1990. He agreed with Dr Jensen that some symptoms related to the C6/7 level, but also did not think further surgery was warranted. Those symptoms had not been present before he had operated. She remained, in his view, incapacitated for work as a consequence of her injury.

48. Dr David McGrath, consultant in occupational medicine, saw her at the request of her solicitors in August 1990. Many of the reports by other doctors were read by him. He gave evidence and was cross-examined.

49. He thought that she had a pain disability which reduces her work capacity. It was, he thought, conceivable that she could work in a limited capacity, although this might be hard to achieve in the workplace market. A sedentary occupation with work hardening to full-time was conceivable if not readily achieved. Further surgery was not indicated. Most of her symptoms arose from non specific derangement involving several levels.

50. The most recent medical opinion is that of Dr Andrews, who saw her again for the defendant in January 1991.

51. Her depression and alcohol abuse were under control. She continued to have pain in the neck extending into the left triceps. There was also some mild back pain, with pain down the right leg which radiates to the foot. He thought the signs that she demonstrated were functional, and that her symptoms were not as serious as she was claiming.

52. There was nothing in her evidence, or in the way that she gave it, which suggested to me an inference that she is consciously exaggerating her symptoms. She is still taking medication, which she varies according to the degree of stress that she suffers and consults her family doctor regularly.

53. I was impressed by the careful and thorough evidence of Dr Cullen.

54. In my view, she suffered a quite severe whiplash injury, and no matter what other doctors might think about the advice that Dr Newcombe gave her, she acted reasonably in submitting herself to the two neck operations.

55. Her personality was such that the total experience had an effect upon her which it might not have had upon other people, differently constituted.

56. She suffered a significant reactive depression and that, combined with muscle tension, has resulted in her having symptoms which are not attributable to any organic focus.

57. I specifically decline to accept the opinion of Dr Hughes. There is so much other evidence that the degenerative disc disease in her cervical spine, if any, existing before the accident was minor and not symptomatic, that her soft tissue injury itself was not minor and that she suffered a genuine depressive reaction, that I am comfortable in discounting entirely his view that she is suffering only the results of degenerative disc disease and is fit for her pre-accident employment.

58. So far as her general damages are concerned, I do not think it matters whether it has been demonstrated that the accident caused disc damage to her cervical or lumbar spine. The consequences for her ability to enjoy her life were the same, whether there was original injury or exacerbation of existing but asymptomatic degenerative disease.

59. I am also satisfied that there is sufficient continuity in her complaints of lower back pain for it to be more probably than not attributable to the accident. There is no evidence at all of any disc damage in the lumbar sacral area. Her complaints are consistent with soft tissue injury, masked often enough by more severe discomfort higher up. She does not exaggerate it. It comes and goes.

60. The evidence of Dr Andrews and Dr Spira do not lead me to believe that she is exaggerating, either consciously or unconsciously. I accept the view of Dr McGrath that physically and psychologically she may marginally be employable but that suitable work would most likely not be available for her.

61. I assess compensation for her pain and suffering and loss of the amenities of life at $52,000.00, of which I would attribute $7,000.00 to the future.

62. Interest on the past component of that item at 4% is $7,000.00.

63. The out-of-pocket expenses were not contested, amounting to $25,052.54.

64. The plaintiff received worker's compensation and the Fox v Wood component is agreed at $2,055.39.

65. At the time of the accident the plaintiff was earning about $350.00 a week gross. Had she occupied a similar position in October 1990 she would have received a salary in the order of $435.50 gross and $339.40 net. A calculation of total wage loss to 24 April 1991, part of exhibit F, gives a figure of $60,278.37.

66. I agree with the defendant's submission that in the light of her pre-accident employment history, of her physical and psychological make-up, of the closing down of the Jewel's Food Store Mini Lab and of the move to Sale made necessary by her husband's employment, it would be wrong to award her damages for past loss of income on the basis that she would have enjoyed uninterrupted employment to date. As a matter of judgment I award $45,000.00 for past loss of income. The evidence does not enable me to make any award of interest on that sum.

67. The outer limits of an award for her loss of income earning capacity for the future are marked by calculations of the present value of $340.00 a week for 12 years (to age 60) and 17 years (to age 65). Those figures are $179,180.00 and $236,980.00 respectively.

68. There must be some discounting of those figures, but not much, on the basis that she might find suitable work. I do not think that is likely.

69. There must be considerable discounting on the basis that some other trauma or incident of life, in the light of her psychological and physical make-up, might have disabled her from employment. There must also be taken into account her employment history and abilities, and the consequences of being married to a serviceman. In my judgment the sum of $100,000.00 will adequately compensate her for loss of future earning capacity.

70. For a time after the accident her son David took over the housekeeping tasks that she was unable to do and after he left to join the Navy a friend of his, Mr Gilchrist, took many of them over, at a cost to the plaintiff of $20.00 a week. After the move to Victoria the plaintiff's husband performed many of them but no claim can be made for those services since her husband was the tort-feasor.

71. Again, as a matter of judgment, for the value of services provided voluntarily by members of her family other than her husband, and at a price by Mr Gilchrist, I award the sum of $1,500.00.

72. The total award is therefore made up as follows:-

Pain and suffering $52,000.00
Interest 7,000.00
Out-of-pocket expenses 25,052.54
Fox v Wood 2,055.39
Past loss of income 45,000.00
Future loss of income 100,000.00
Griffiths v Kerkemeyer 1,500.00
Total $232,607.93

I direct the entry of judgment for the plaintiff in the sum of $232,607.93.