Maria Kasumovic v Hong Guong Doan [1991] ACTSC 57 (7 August 1991)

SUPREME COURT OF THE ACT

MARIA KASUMOVIC v. HONG GUONG DOAN
S.C. No. 1276/88
Negligence

COURT

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

CATCHWORDS

Negligence - Damages - Personal Injury - Contributory Negligence - Concussion - Pneumothorax - Fractured Radius - Fractured Metatarsal - Depression - No Issue of Principle

HEARING

CANBERRA
7:8:1991

ORDER

I direct the entry of judgment for the plaintiff in the sum of $131,886.68.

I order the defendant to pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries received by the plaintiff in a motor vehicle accident on 9 March 1987.

2. The plaintiff was born in Yugoslavia on 27 May 1930. She left school at the age of 12 and worked at farm, manual and factory work until coming to Australia in 1963.

3. She married in 1965, and when her son was old enough to go to school she began work at David Jones in 1972.

4. Thereafter she had a number of jobs in the food catering industry. Her husband is a chef. At the time of the accident she was working at the Hobart Coffee Lounge in Civic, preparing and serving sandwiches and light meals. She worked six hours a day, five days a week.

5. At 3 or 3.30 pm on 9 March 1987 she was driving home from work in a southerly direction along Sturt Avenue in Narrabundah. She was approaching the intersection of Sturt Avenue with Boolimba Street, which entered from her left.

6. Traffic coming out of Boolimba Street was controlled by a give way sign. There were two lanes for traffic travelling South in Sturt Avenue. The defendant drove west in Boolimba Street and when she reached the intersection she saw a bus approaching from her right in Sturt Avenue. Apparently the bus was in the left hand lane, and obscured her vision of the plaintiff's vehicle which was travelling in the lane closer to the centre of the road. The bus slowed and turned left into Boolimba Street, and the defendant drove into the intersection. The front right hand side of the Defendant's vehicle collided with the rear left hand panel of the plaintiff's vehicle.

7. The plaintiff's vehicle then travelled 25 metres south on Sturt Avenue to a point where it left the roadway, on to a raised nature strip, where it left tyre scuff marks for a further 25 metres. It then crossed an access road for houses in Sturt Avenue, leaving 16 metres of scuff marks on the surface, and then travelled a further 33 metres to collide front on with a tree standing on the nature strip. In round figures, the plaintiff's vehicle travelled 100 metres from the point of impact to where it collided with the tree. That impact was severe enough to cause major damage to the front of the plaintiff's vehicle.

8. The plaintiff was knocked unconscious at or some time after the initial impact. Her last memory of events before the collision was of driving in Sturt Avenue. Her next memory is of waking up in hospital.

9. In her evidence in chief, she did not give an estimate of her speed as she approached the intersection nor was she asked whether she was wearing a seat belt. In cross examination she was not able to recall putting her seat belt on on this occasion, but insisted that she always did so. She also denied that she was exceeding the speed limit as she approached the intersection, on much the same basis.

10. The defendant did not give evidence. Sergeant Hourigan, who investigated the accident, gave evidence of admissions made by the defendant.

11. It was not contested that the defendant failed to comply with her obligation to give way to the plaintiff's vehicle.

12. There will therefore be judgment for the plaintiff.

13. There is no evidence about whether or when the plaintiff applied her brakes after the initial impact. There is no evidence that the tyre scuff marks were those of a vehicle under braking. The distance that the car travelled and the force of the impact are not, in the absence of any other evidence, sufficient to persuade me that the plaintiff was travelling at an excessive speed.

14. By the time Sgt. Hourigan arrived at the scene, the plaintiff was in the rear of her vehicle being treated by the ambulance officers, so far as he could remember. Either as a result of that information, or from what he was told by an ambulance officer, he entered on the police report form an indication that she had not been wearing a seat belt at the time of the accident.

15. The ambulance officer was not called. The most detailed description of her visible head injury is that in Dr Taylor's report of 8 November 1987, where he says that when he saw her on 8 April 1987, she had bruising and scars on the left temporo-frontal region where she had a fairly extensive laceration of her scalp. Dr Newcombe noted scars in the left forehead between 1 cm and 3 cm long. There is no other evidence relating to the question whether she was wearing a seat belt.

16. I am not persuaded that she did fail to wear it, nor can I see any evidence that, if she did, her damage was caused or contributed to by any such failure.

17. The judgment will therefore not be reduced on account of any contributory negligence on her part.

18. She was taken by ambulance to Woden Valley Hospital, where she was admitted and placed in the Intensive Care Unit.

19. In addition to the concussion and scalp lacerations she had a pneumothorax with fractures of three ribs on the left, fracture of the left radius and ulna, with an undisplaced fracture of the distal radius, and an undisplaced fracture of the left 5th metatarsal bone. X-ray of the skull did not reveal any abnormality.

20. She was treated conservatively with chest physiotherapy and plaster on the left wrist and left ankle. She had the usual severe post concussional headaches.

21. After about 16 days, she was discharged from hospital and went home to bed. She was attended at home by a visiting physiotherapist.

22. Her orthopaedic treatment was given by Dr Stubbs. He saw her on 14 April, after her discharge from hospital, when she was getting about reasonably well, but complaining of pain in the wrist and ankle. She also had pain and stiffness in the neck, right shoulder, right index finger and chest.

23. X-rays did not reveal any further bony injury. She had only three quarters of the normal range of movement of the neck.

24. At about the same time Dr Taylor, her general practitioner noted the following:
"I first saw Mrs Kasumovic after her accident on 8.4.1987. I

then found her conditions to be as follows:
1. Swollen and painful left wrist with poor rotational
movement, and marked reduction in the power of her grip.
2. Painful left forearm, arm and left shoulder.
3. Fractures of various ribs. She complained of significant
pain in R. Chest.
4. Bruising and scars on the left Temporo-Frontal region
where she had a fairly extensive laceration of her scalp.
5. Puncture wound of her left knee with some scarring on the
left side. She also had oedema of the dorsum of her left foot.
6. She complained of soreness of her right knee but there
was no external sign of injury.
7. Headaches and difficulty with memory. She could not
remember how the accident had happened.
8. She complained of neck pain. There was some reduction
of all movements and obvious stiffness.
9. Soreness of the right heel.

Because of persistent severe headache a C.T. Scan was carried out on 5.5.87. This showed no abnormality.

25. Opinion: I believe that Mrs Maria Kasumovic's soft tissue injuries were fairly extensive and the cause of considerable pain and disability which is still slowly resolving. She has had almost continuous physiotherapy which is now beginning to bear fruit."

26. Dr Stubbs reviewed her again in August 1987, at the request of Dr Taylor. She had not been able to return to work. Her complaints were mainly of the continuing severe headaches, stiff and sore left wrist, sore and swollen left foot, and a neck which was stiff with occasional pain. His clinical examination did not reveal to him sufficient physical cause for the disabilities of which she was complaining.

27. Orthopaedically, he felt that she should have been able to return to work. However, Dr Taylor saw her on 10 October 1987, and commented as follows:

"When last seen on 10.10.87 she complained of continuing severe
headache and of forgetfulness. Both knees were painful. She
also complained of pain in left ankle, left wrist, and the
lumbar region. Her left wrist remains swollen, and there is
reduction of flexion, extension and rotation.
Her neck remains painful with restriction of rotation to both
sides. She complains of pain on extension which is also limited.
Both knees were reported as being painful, and retro-patellar
crepitations were detected in both knees. Her left ankle
appears now to be relatively normal.
In conclusion, Mrs M. Kasumovic suffered quite severe bony and
soft tissue injuries in the motor vehicle accident of 9.3.87
from which she has residual defects, and which still give pain
and limitation of movement.
It is my opinion that she will be several more months before she
is relatively pain free, but I believe she will always have some
disabilities due to this accident."

28. In fact she was becoming depressed and emotionally upset at her continuing pain. Dr Newcombe, Neurosurgeon, who saw her in April 1988, was of the opinion that her head injury had been moderately severe, and expressed no doubt about her persistent memory impairment. Her general practitioner had referred her to Dr Merrifield, Psychiatrist, in February 1988.

29. He noted the complaints of depression, memory loss and difficulty in sleeping. He described it as an endogenous type of depression, but as nevertheless being a consequence of the accident. He did not expect a good recovery, at any rate while the litigation remains unresolved.

30. Dr Andrea saw her for the defendant on 3 August 1988, 5 October 1989 and 7 March 1991. He would have expected her to have recovered much sooner from her physical injuries, but thought that her depression was exacerbating her problems. Dr Cairns, Orthopaedic surgeon, saw her in November 1989 and March 1991, and was, in general terms, of much the same view.

31. Dr Scott Finlay saw her for her employer's workers' compensation insurer in March 1991. His diagnosis was one of gross psychiatric disorder, but he did not think it was related to the accident per se. He was convinced she was not fit for work, but while he doubted the genuineness of her complaints he wondered whether she might not be suffering from Alzheimer's disease] That incongruity was not explored by any cross examination.

32. In May 1991 she was reviewed by Dr Merrifield. He commented:

"At my previous contact, she had significant findings which made
me conclude that she was suffering from a moderately severe
depressive episode with physiological accompaniments of early
morning wakening and diurnal variation. This put it into a
category which would respond to an antidepressant
pharmacological program (which had been instituted already by
her GP). The illness, called Endogenous Depression, was
probably a result of the effects of the accident. Treatment
having been commenced, I could only suggest that her dose of
medication be increased. There was no follow up by me, as I
presume her GP thought this was not necessary, so I am not sure
when that condition ceased.
For cease it did, as there was no evidence of it at my recent
examination. She complains of depression and unhappiness, and
whilst these conditions could certainly be present, they would
be a reaction to the life she is leading, and cannot be
categorised as a psychiatric illness.

He concluded:

"My only contribution, as I initially said, is that, in my
opinion, she had a moderately severe depressive episode which
was not present when recently reviewed for you. It had
dissipated either due to the medication or the passing of time.
At the time of my last consultation, she was unhappy at her
present condition and this mood will be relieved when her court
case is settled."

Her solicitors referred her to Mr Sutton for psychological assessment in April 1991.

33. One comment that he makes in his report reinforced an impression I had formed, listening to her give evidence, where he says,

"I did give her another task to see if I could judge whether
there was any deliberate attempt to exaggerate her memory
deficits. I got a borderline result here which I am a little
hesitant to definitely say indicates conscious intent to
deceive. Nevertheless, it is marginal and I suspect we are
watching a mixture of unconscious motivations to put a bad face
on things, general slowness and depression and maybe a little
hint of pushing it towards the worse side if she manages to have
a choice."

34. It is clear that she suffered no dysfunction due to brain injury. I also agree with his comment that her cultural background is such that there is not a simple decision to be made between malingering, exaggerating or depression.

35. The only doctor who gave oral evidence was Dr Taylor. He confirmed the picture of a change from a happy personality to one of continuous complaint and sadness. He had prescribed medicines to combat pain, sleeplessness and depression. He thought she continued to be unemployable. He was cross examined about some conditions from which she had been suffering before the accident, but neither he nor I were much impressed by their significance in this case.

36. A short segment of videotape taken of her walking from and to her car did not strike me as being at very great variance with her evidence or her complaints to the doctors.

37. In summary, I am satisfied that she sustained quite severe physical injury, which would have been expected to have cleared up to a stage where they would not have been disabling quite some time ago. However, her psychological and cultural background is such that she became depressed, and continues to be depressed to an extent of not being employable. She makes the most of her disabilities, however, without engaging in conscious or deliberate exaggeration, and I expect her outlook on life to improve after the conclusion of this litigation.

38. For her pain and suffering and loss of amenity I award the sum of $42,000 of which $35,000 relates to the past. Interest on that past component amounts to $6,200. The Fox v Wood component is agreed at $5,552.27. The out-of-pocket expenses have been agreed at $8,134.41.

39. So far as the loss of income earning capacity is concerned, her taxation assessment notices show that her after tax weekly earnings over the years preceding the accident were as follows: 1983 $209; 1984 $144; 1985 No Evidence; 1986 $159; 1987 $161. I should take into account wage rises since 1987, but there is no evidence of their exact extent. Her earning rate was not regular, as those figures show. As a matter of judgment I allow $42,000 for past loss of earnings.

40. I accept that she had not decided upon a retiring age at the time of the accident, and the type of work she was doing was of the kind that she could have continued to do until 65. That is only about four years in the future. On the 3 per cent tables, the present value of $180 a week for 4 years is $35,460. Taking into account her health before the accident, which was not perfect, and the contingencies of life for a person of her personality type and background, I think that an appropriate sum for loss of future earning capacity is $28,000.

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

Pain and suffering $42,000.00
Interest $ 6,200.00
Fox and Wood $ 5,552.27
out-of-pocket expenses $ 8,134.41
Past loss of earnings $42,000.00
Future loss of earnings $28,000.00
Total $131,886.68

I direct the entry of judgment for the plaintiff in the sum of $131,886.68.

42. I order the defendant to pay the plaintiff's costs.