Leonarda Zapasnik v Dimitris Protonotarios [1991] ACTSC 79 (4 October 1991)

SUPREME COURT OF THE ACT

LEONARDA ZAPASNIK v. DIMITRIS PROTONOTARIOS
S.C. No. 1667 of 1986
Damages

COURT

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

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Assessment - Neck - Soft Tissue Injury - Pre-existing neck injury - Psychological aspects - No issue of Principle.

HEARING

CANBERRA
4:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $137,000.00.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 24 October 1984.

2. The plaintiff was driving her car west on Belconnen Way when the defendant drove a vehicle out of a side street, namely Springvale Drive, on her left. The plaintiff braked but the front of her car struck the side of the defendant's car. Liability is not in issue and the matter was contested only on the question of the amount of damages. That question however is not easy to decide, because of the complexity of the plaintiff's medical history before the accident.

3. The plaintiff was born in Poland in 1939. Understandably, she suffered great physical and emotional stresses during her formative years in Europe during the war. She came to Australia in 1950, at the age of 11. She married at 18, and she and her husband have two sons.

4. The plaintiff had a history of abdominal pain in the 1960's, and underwent an operation for ovarian cysts and then a hysterectomy. Although the matter was not examined in any detail during the hearing it appears that she suffered depression in connection with that treatment and underwent approximately 18 electro-convulsive therapy treatments for her depression.

5. She worked for some years as a shop assistant, until, in November 1975, she was injured by accident when she fell over some boxes while working at David Jones.

6. The principal consequence of that accident for her was continuing severe neck pain. Her perception of and reaction to that pain was affected by her emotional state, but was undoubtedly genuine.

7. It is necessary to examine with some care the course of treatment for that neck pain, because her principal complaints about the results of the accident, the subject of this action, relate also to neck and shoulder pain. The question arises of the extent to which she had recovered, so far as her neck was concerned, by October 1984.

8. Her general practitioner, Dr Lai, had referred her to Dr Scott-Charlton, who reported to him as follows in September 1977.
"Mrs Z. returned to see me on the 21st September 1977. She

reported "severe neck pain", worse on movement, and worse than
it had been, though present, when I saw her on the 12th July
this year when you referred her to see me then.
The consistency of distribution of her pain, which is in the
left shoulder, left lateral cervical region, and left upper limb
remains, but in September she had clear neurological signs in
that she had sensory loss and weakness in the left "ulnar" area
to the upper third of the forearm.
Such has been the very psychological nature of her earlier
medical history, that people exercising caution in diagnosing
the physical lesion have every justification in doing so, but of
course it does not matter how psychologically affected one may
be, it is possible to get physical disorders. Some physical
signs on examination are to be mistrusted in certain patients in
that weakness of grip, absence of feeling and so forth, are not
sufficiently objective data upon which to base a confident
conclusion in many cases, but the findings in Mrs Z. on this
occasion are not of that character.
I feel it is likely that she will need admission to hospital,
myelography for further information, and probably cervical
spinal surgery at C5/6 and C6/7."

9. Her emotional reaction to her injuries was probably not helped by continuing litigation over workers' compensation entitlements, which was not finally settled until mid 1982.

10. In March 1978 the symptoms of which she complained to Dr Scott-Charlton, were so different from what she had recounted the previous year that he thought she no longer needed a myelogram or an operation. He saw her symptoms as psychosomatic.

11. Dr Robson did not agree. To him the whole picture was consistent with disc injury. He advised an operation, making it clear to her that the only purpose of it was to relieve the pain in the neck and numbness in her finger. He performed a Cloward's procedure at C5/6 and C6/7 on 5 September 1978. At the operation the rupture of C5/6 was quite obvious, and though pathology at C6/7 was less obvious he decided that it was best to operate at that level also.

12. A year later, in September 1979, she was complaining to Dr Robson about pain around the left shoulder and arm when she tried to lift her newly arrived grandchild. He thought that the bony union was quite solid, and advised her to improve her exercise level.

13. In November 1979 Dr Lai referred her to Dr Danta. She told Dr Danta that the operation had to some degree settled the pain, reduced the numbness and improved her neck movements, but that for some months she had a recurrence of more severe symptoms, in particular tightness of the muscles in the neck and around the shoulders. She also gave a history of blackouts, or fainting attacks. On examination Dr Danta thought that she appeared depressed, and there was some difficulty with full cooperation during the examination. Neck movements seemed to be complete, but there was pain at the extremes of movement. He prescribed relaxation exercises for the pain and medication for the depression. In December 1979 he prescribed physiotherapy for the pain but without much hope of improving it. In January 1980 she was still complaining particularly of the frequent fainting and the neck pain and Dr Danta arranged for her admission to hospital for further investigation.

14. After her discharge from hospital, in February 1980, she was complaining bitterly of pain in the neck and shoulders, but the frequency of her fainting attacks had decreased. He suggested collars for the neck pain. In March she was getting better, but in May a long drive by car had aggravated her neck symptoms. In July she appeared to Dr Danta to be significantly depressed. He continued to see her at intervals of about six weeks. She was using intermittent traction at home and was on quite massive doses of a variety of drugs which Dr Danta prescribed.

15. In July 1981 Dr Danta referred her to Dr Gupta for psychiatric treatment, commenting,

"There are no abnormal neurological signs and treatment is
simply symptomatic. The response has been poor. It became
clear that she has a hysterical personality, and in Dr
Mickleburgh's view she is quite manipulative".

16. Dr Gupta had her admitted to Woden Valley Hospital for a time, without significant benefit.

17. In July 1982, Dr Danta noted that the court case had eventually settled in her favour. Her symptoms continued. He asked Dr Lithgow, anaesthetist, to investigate the pain in her neck by injections. Meanwhile he was concerned at her consumption of codeine, and in August 1982, she was seen by Dr Powell at the Drug Dependence Unit, Woden Valley Hospital.

18. Dr Powell commented,

"I saw this woman for 60 minutes and any assessment could be
misleading. Despite this my impression was that she had pain,
that it was probably moderately intense at times, but seldom if
ever was it severe enough to fully immobilise her. She does not
tolerate pain very well, there is little of the stoic in her.
Her behaviour re pain is abnormal and will continue so. I would
not accept that she needs medication stronger than Codeine Phosphate."

19. He thought that in the light of her history of depression the prognosis was not good, but that unless another specialist strongly supported the need for opiates then she needed to be firmly led to recognising that they were not going to be prescribed.

20. Dr Lithgow gave evidence and was cross-examined. He first saw her on the 26th July 1982 and proceeded to administer a series of injections of local anaesthetic, called a stellate ganglion block, which affects the sympathetic nervous system. The technique is one to which the response is quite subjective, and the plaintiff found that she sometimes had relief from pain for up to two months, a result which did not surprise Dr Lithgow. In April 1983, Dr Lithgow was able to report to Dr Danta that Mrs Zapasnik appeared to obtain significant long lasting relief from the ganglion blocks. He then proposed to continue to treat her in this way at approximately two to three monthly intervals.

21. The plaintiff's evidence is that in the early part of 1984 before the accident she was having very little trouble with her neck. In addition to her extensive involvement with the affairs of the Polish community she began to do bookkeeping work for Taunton's Automotive Electrics, a business in which she was a partner with her husband and her son. She was able to return to landscape painting, at which she was sufficiently skilled to sell the occasional painting. She later claimed to Dr Danta that shortly before the accident the pain in her neck had decreased to about eighty per cent of what it had previously been. Dr Lithgow thought that claim quite consistent with his knowledge of her condition.

22. Dr Lithgow commented in evidence that an improvement of that kind is frequently maintained, but there is a tendency for the patient to have "ups and downs", and not infrequently these are associated with some form of mishap, such as falling down steps or engaging in too much physical activity.

23. In cross-examination Dr Lithgow conceded that having regard to her history up to the date of the accident there might well have been need for further treatment, even including ganglion blocks. Dr Lai also gave evidence by telephone, and it appears that during 1984 and before the accident he was continuing to prescribe Codeine Phosphate for her neck pain, but so far as I am able to read his notes there does not appear to be any significant evidence of the severe pain and depression from which she had been suffering in 1982. She had not been referred to Dr Danta for about eighteen months.

24. I accept that in October 1984, though her physical and emotional health was fragile, she was comparatively well. Her neck discomfort was being alleviated by medication, which she took regularly as prescribed by Dr Lai. She was able to carry out her extensive social welfare activities, part time bookkeeping, painting and housework.

25. The accident happened on 24 October 1984. She was wearing a seat belt. She was shaken up, but did not strike any part of the inside of the car, and did not lose consciousness. She immediately felt a tightness under the left arm, but did not think that she had been hurt enough to require treatment. She was driven home.

26. That night she experienced increasing pain in the left shoulder. She went to see Dr Lai the next day. She was complaining of pain in the neck, left shoulder and left arm. He prescribed valium and fortral in addition to her regular medication.

27. The pain persisted, and Dr Lai sent her back to Dr Danta. Her principal complaints to him were that pain in the left shoulder and left arm were restricting her activities. On examination he found some restriction of neck movement. There was tenderness over the left trapezius and left neck, but quite a deal of tenderness over the left quadrilateral space. He referred her to Dr Lithgow for injections of local anaesthetic, both for diagnostic and therapeutic purposes.

28. The injections helped her pain to some degree for a time, but by May 1985 Dr Danta received complaints of pain increasing again, and swelling of the left hand. He sent her again to Dr Lithgow. In a report to her solicitors of 24 May 1985 he commented,

"I think the current pain and consequent disability have to be
ascribed to the accident in October last year. At the same time one
should say that she had not fully recovered from the effects of the
previous accident and the most recent one produced an aggravation in
the form of soft tissue injury to the left neck and left arm. In
patients who have more than one accident, clinical experience shows
that the effects of a particular accident of given severity are
symptomatically worse in subsequent than in first accidents. The
prognosis must remain guarded. She is likely to continue with pain
for a long period of time. Fortunately she is not as disabled has
she had been many years ago and is psychologically much better
attuned to the chronic pain that she has and also has had for a long
number of years. She will need to be reviewed after the consultation
by Dr. Lithgow."

29. Dr Lithgow noticed a difference in symptoms in July 1985, and decided to attempt again the stellate ganglion block injections that had helped her before the accident. He also prescribed the use of a TENS machine.

30. In October 1985 Dr Danta found her better psychologically attuned than ever before. The injections had got rid of the burning sensation in the left arm of which she had complained and the swelling of her left hand had gone down. She still had some pain and muscle tenderness over the left shoulder. He then thought he would not need to see her again.

31. In May 1986 she injured her right shoulder, and an x-ray at Canberra Hospital was said by Dr Danta to have revealed some fracture, but the incident seems not to have played any great part in causing the continuing symptoms of which she complained.

32. In August 1986 Dr Danta saw her about a complaint of numbness along the ulnar side of the left hand, and weakness of the hand. She seemed to him to have lost her depression. He sent her again to Dr Lithgow, who referred her to Pat Williams, clinical psychologist.

33. She was also referred to Dr Knox, psychiatrist, who saw her on five occasions in the first half of 1987.

34. In his report to her solicitors Dr Knox commented,

"In addition to chronic pain in the left shoulder and left arm
Mrs Zapasnik has had a degree of weakness in the left arm, and
tends to nurse and, "hide," the arm. She can however use this
limb for light activities.
Your client has been admitted to hospital on as many as fifteen
occasions since the 1984 accident for treatment of more severe
episodes of pain, including the use of Pethidine injections.
In 1986 Mrs Zapasnik began treatment with the clinical
psychologist Patricia Williams, and this treatment continued for
approximately nine months. As a result of advice given your
client by Mrs Williams, and myself, Mrs Zapasnik seems to have
been better able to pace her activities and not aggravate her
condition by attempting too much, especially by way of the
community work which has always been a major interest of Mrs
Zapasnik's. Self relaxation techniques have also been utilized
with some benefit. As you will appreciate Mrs Zapasnik has
always been a relatively excitable lady and I believe that she
at times has got herself over-involved in activities and concern
for others, thereby tiring herself and aggravating her chronic
pain condition."

35. He reviewed her family and personal history, psychiatric and medical histories, personality and mental state. On all the occasions he saw her she showed high levels of anxiety and significant depression.

36. His opinion included the following comments,

"It is my opinion that Mrs Leonarda Zapasnik has suffered
chronic pain as a consequence of a fall at work in 1977 in which
she injured her neck and subsequently required a Cloward's
fusion operation; and a motor vehicle accident in October of
1984 which apparently aggravated the neck problems and brought
about pain in the left shoulder and left arm along with
pathological disturbance to the sympathetic nervous system in
the neck.
Although I am of the opinion that Mrs Zapasnik has always been
an excitable lady, there have been elements of reactive
depression and anxiety flowing from the physical health problems
suffered by this lady since 1977.
Certainly problems with the left shoulder and left arm flow from
the 1984 motor vehicle accident, although injuries caused in the
earlier work accident continue to play their part in her present
health problems.
Prior to the motor vehicle accident of 1984 while Mrs Zapasnik
did have some health problems associated with the earlier neck
injury, she was assisting in the family's automotive electrical
business, undertaking typing and book-keeping, was able to enjoy
her hobby of painting, and was very active in her community
work. Since the October 1984 accident she has suffered much more
intense chronic pain, limitation of movement in the left arm,
and there has been quite a marked disturbance of mood by way of
anxiety and depression.
I believe the 24 October 1984 accident not only aggravated the
previous pathologies in this lady's neck but caused new injury
resulting in considerable disability."

37. On reviewing the whole of the evidence in this case I find myself agreeing entirely with those views of Dr Knox. He expected her physical and psychiatric difficulties to continue.

38. In August 1987 Dr Robbie, psychiatrist, examined her for the defendant. He did not have the benefit of reports from the other doctors, but her description to him of what had happened was detailed, and seemed to me to accord with the evidence and the reports in general.

39. Dr Robbie could not find much objective evidence of injury on physical examination. On the emotional side she denied to him that she was suffering from depression. Nevertheless he was inclined to the view that she was suffering from a mixed neurotic reaction, with depressive and hysterical features.

40. In December 1987 she was admitted to Woden Valley Hospital with low back pain. She did not respond to Dr Lithgow's injections, and a lumbar myelogram and CT scan did not show any abnormality. This incident was not related to the accident in any way, but illustrates the difficulties experienced by the legal advisers of both parties in sorting out the out of pocket expenses. Dr Danta suggested that she be managed as suffering from chronic pain syndrome.

41. Dr Robbie examined her again in August 1989, and found her much improved. She was still using the TENS machine, and being treated by the ganglion blocks. She was still getting pain, swelling and changes of temperature in the left arm and hand and pain at the base of the neck on the left side. Again, he could find little on physical examination, and was of the opinion that there was a decided functional element, though she was not clinically depressed.

42. On the same day, Dr Spira, neurologist, also examined her for the defendant. He thought that she had not suffered any significant trauma in the motor car accident, and that what she did suffer was not capable of triggering the reactions of which she also complained unless there was some predisposition.

43. I would comment that, first, there was some predisposition, and the defendant must take the injured plaintiff as she is. Secondly I am persuaded by the evidence of Dr Lai, Dr Lithgow, Dr Danta and Dr Knox that the trauma was not as minimal as Dr Spira seems to have thought. I specifically do not accept the suggestion made in his report of 8 August 1990 that there is an element of deliberate exaggeration in her complaints.

44. Dr Robbie's view of her condition in July 1990 seems to me to be more accurate, when he commented,

"She does not have an anxiety condition. Today, she appeared to
be suffering from a dysthymia, a chronic low-grade depression,
though more general neurotic features and idiosyncratic
personality features probably come into the picture as well.
Whatever the case, she did not seem as well emotionally as when
I saw her on 1/8/89. I did not think her depressed a year ago,
but did caution that others would have to decide about a
variability in her emotional state. I can confirm I have seen
her in a down state now. As of today, I would also think there
is an element of somatoform pain disorder attached to whatever
underlying physical problems she may have. She is a nice
person, and things are miserable for her, but there is certainly
a psychogenic component to her pain of some proportions I would
say. This does not rule out an underlying physical problem,
which I leave for others. Again, I have seen no medical
information at all. Furthermore, the circumstances require
considerable caution, as she is taking 8 Codeine a day, 150 mgms
of Doxepin a day, and has her Stellate ganglion blocks every 2
months. Things are unhappy for her, she is fed up with it all,
and she has had a hard life as well. If other medical reports
suggest there is no firm evidence of an organic condition, and
that she just seems to suffer from chronic pain, then I can
certainly confirm a psychiatric feel to part of that picture.
However, if she has been in chronic pain all this time, then
such a picture would be not unreasonable. She did seem to be
depressed today, and it appears she has been reducing
activities. I had an impression things might have been going
down over the last year, she gave up painting over 6 months ago
and sold her car early this year, and she is aware of social
withdrawal and a feeling that she is not managing as well as she
should. She also felt she had been worse over the last 2-3
months in an emotional sense."

45. That impression does not seem to me to conflict with any of the evidence. In fact, it appears to summarise it, and to reflect my own view of the evidence, both her own and that of the doctors and her husband.

46. There is some hope, though no certainty, that she will be able to cope better when this litigation is concluded. However, it is significant that there was no dramatic improvement after the resolution of her previous litigation, and Dr Lai thinks that her condition is permanent.

47. In summary, she was a person who was susceptible to emotional consequences of trauma. In the work accident of 1975 she sustained physical injury to her neck, which was treated by fusion at two levels, which relieved the pain to some extent, but not completely. She also suffered depression as a result of that injury, but by early 1984 she had recovered to the stage where she still needed medication for the pain in her neck, left shoulder and left arm, but she was able to lead an active and interested life, with social, artistic and work activities. That state of health was fragile, and some trauma might well have had a harmful effect on her even had the accident not happened.

48. However, the motor car accident did happen. It caused a marked increase in her level of pain, which has required increased doses of medication and repeated anaesthetic injections. It has also caused a deterioration in her emotional state, so that the combination of emotions and the physical trauma caused her to experience more pain than other people would from the same injury, and to experience it for a longer time. There is hope for some improvement after this case is concluded, but the probabilities are that she will continue to suffer from the combined effects of the two accidents for the rest of her life.

49. For the pain and suffering and interference with the amenities of life that this accident caused, I award the sum of $35,000, of which I would apportion $10,000 to the future.

50. Interest on the past component at 4% amounts to $7,000 in round figures.

51. It is obvious from the history detailed above that she has incurred many expenses for hospital and medical fees since the motor car accident that were not attributable to it. The total claimed by the plaintiff was $33,086.69. On inspection of the vouchers the defendant excluded a number of items on the basis that they obviously related to conditions not caused by the accident, or were not supported by documentary evidence. The balance remaining is $17,049.85.

52. I suspect that many of the items disallowed on the basis that there were no vouchers to support them may well have been related to the accident, but there was no other evidence to support them, so that I may not take that suspicion into account.

53. The defendant has submitted that of the balance there must be a part which she would have incurred in any event, as she was still receiving regular treatment from Dr Lai for her work injury up to the date of the accident. That consideration is entitled to proper weight. However, I note that in arriving at the balance the defendant has already discounted a number of substantial items of the plaintiff's claim, such as the chemists item reduced from $3,461.39 to $1,500 and Southern Cross Medical reduced from $2,375 to $1,000. As a matter of judgment, I would award $15,000 for out of pocket expenses. The evidence does not enable me to award interest on that element of the damages.

54. Her evidence that she was being paid about $140 a week for the bookkeeping work she was doing for the partnership is consistent with her taxation return which is in evidence. The fact that the partnership made a loss, for whatever reason, does not affect her entitlement to compensation for that loss of income.

55. However, her claim that she earned significant sums from her paintings was challenged. It is not consistent with her taxation returns, and was not supported by other evidence, and I am not persuaded that she is entitled to any sum for loss of income connected with her painting. Her loss of enjoyment in the activity has of course been taken into account in general damages.

56. The gross loss of income from the date of the accident is of the order of $51,000.

57. It is obvious from the medical history that she would have been prevented from working for part of that time in any event because of other ailments, such as the shoulder injury and the low back problem. Counsel did not submit any analysis to enable me to determine the extent of the necessary discount with any accuracy, but as a matter of judgment I would allow $35,000 for past loss of income. In lieu of interest on that item I award a lump sum of $20,000.

58. In arriving at a decision about her future economic loss, I take account of the present value of $140 a week for 8 years, that is, to her age 60. On the 3% tables that gives a sum of $52,080. With her medical history that figure would need to be severely discounted in my judgment to the sum of $25,000.

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

General Damages $35,000.00
Interest thereon 7,000.00
Out of pocket expenses 15,000.00
Past loss of income 35,000.00
Interest thereon 20,000.00
Future loss of income 25,000.00
Total $137,000.00

60. As a global amount that sum appears to me to be within the proper bounds of judgment.

61. I direct the entry of judgment for the plaintiff in the sum of $137,000.00.