Margaret Mary Maynard v Dennis James Corty [1991] ACTSC 84 (11 October 1991)

SUPREME COURT OF THE ACT

MARGARET MARY MAYNARD v. DENNIS JAMES CORTY
S.C. No. 679 of 1990
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft tissue injury to cervical region, coccyx and right shoulder - persistent discomfort - limited working capacity - permanent disabilities - No issue of principle

HEARING

CANBERRA
11:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $209,780.00.

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 24 November 1987.

2. The plaintiff was driving a utility in Elmoos Road at Jervis Bay, when the defendant drove a sedan car in the opposite direction, on the wrong side of the road. There was a head on collision. Liability was admitted.

3. The plaintiff was wearing a seat belt. She was thrown violently forward, then back. Her head did not strike any part of the inside of her vehicle, and she did not lose consciousness, but it is possible that she had a direct blow to her right shoulder.

4. She immediately felt pain in the shoulder, and after a short time stiffness in the arms and lower back.

5. She was helped from the car, and sat, shaken, until the police arrived about an hour later. She was later taken by her father to a locum at the practice of her general practitioner. Dr Jackson arranged for X-rays, which revealed no abnormalities. He diagnosed soft tissue injury to the cervical region and right shoulder. He prescribed physiotherapy, which the plaintiff underwent. When seen by her doctor a week later there had been some improvement, though she still needed to wear a cervical collar and was having difficulty in using her right hand. In this initial period she was having difficulty in sleeping and needed help to dress herself. Her husband and her daughters continued to give that assistance for about six months. They also took over the housekeeping tasks.

6. By the end of December 1987 she was also experiencing pain in the lower back and over the coccyx. X-rays of the area were arranged, and did not disclose any bony injury. At the end of January 1988 she was still wearing the collar and undergoing physiotherapy. Her doctor referred her to an orthopaedic specialist, Dr Davison of Nowra, for review. Dr Davison's report was not in evidence.

7. At the time of the accident the plaintiff was a 43 year old married woman, living with her husband and 3 teenage children. She was employed as a shop assistant at the Jervis Bay Supermarket which operated a kiosk at the Railways Union Holiday Camp in the Territory. She had been taking supplies to the kiosk when the accident happened.

8. Dr Palmer saw her regularly, and issued a series of certificates that she was unfit for work up till November 1988.

9. In October 1988 her solicitors referred her for a report to Dr Puri, an orthopaedic specialist at Wollongong. She complained to him that her neck was still painful, and she had aching discomfort in the cervical region, and down her back to the tailbone, accompanied by headaches which got worse with changes in the weather.

10. This description is consistent with entries that she made in a diary over the period.

11. On examination Dr Puri found no cervical muscle spasm, but cervical spine movements were restricted at the extremes in all directions and produced discomfort. There was no marked restriction of movement at the shoulder, but discomfort at the extremes of movement. X-rays did not show any bony injury, but irregularity of discs leading to dorsal kyphosis. This condition was not related to the accident, but in Dr Puri's opinion the soft tissue injuries to the cervical, thoracic and lumbar regions were responsible for continuing and persistent discomfort and limitation of her working capacity. He assessed her loss of efficient use to be 20% of the spine and 10% of the right upper limb, due to the soft tissue injuries. He thought the disabilities would be permanent.

12. In November 1988 her solicitors referred her for an assessment by a neurologist, Dr Teychenne. She was still suffering from neck stiffness and pain, and pain across the back at the shoulder level. She complained that over the previous 4 months she had developed heaviness and numbness in the left and right hand, and weakness in the hands. She was suffering almost daily from headaches.

13. He did not find any neurological deficits on examination. He carried out EMG nerve conduction studies, the results of which were normal, giving no evidence of nerve root irritation or compression.

14. Dr Teychenne gave evidence and was cross-examined by telephone. He thought that the plaintiff had suffered a typical whiplash injury. The history that he had received from the plaintiff suggested to him that she had suffered a cervical disc prolapse, resulting in irritation or compression of the roots of the nerves going from the neck to both arms. The absence of test results to support such a finding did not cause him to doubt his diagnosis.

15. None of the other doctors who have examined the plaintiff made the same diagnosis, but neither did any of them expressly exclude it, and I am inclined to accept Dr Teychenne's opinion. It would explain her consistent complaints of changes of sensation in her arms and hands.

16. The plaintiff's employment at the supermarket had been terminated in December 1987. She felt unable to work at all during 1988. In March 1989 she was approached by the Huskisson Bowling Club to operate the food catering business at the club. She and her daughter undertook the job in partnership. The plaintiff concentrated on supervising and cooking, leaving the heavier duties to her daughter. That venture lasted until 31 August 1989. The circumstances in which it finished are not clear. Part of the explanation seems to be that the Club wanted someone else to do the job, part that the plaintiff was really in too much pain either to do it fully or to carry on in any comfort. I do not think that the precise reason matters very much. There is no reason to doubt that she was making a genuine effort to get back to work and to get on with her life.

17. In October 1989 her solicitors referred her to Dr Keiller. Her complaints to him were consistent with her evidence and what she told other doctors. Her pain was continuing, she was still receiving treatment, but her overall condition was improving. She was, by then, doing all her own housework and some gardening. Dr Keiller thought she was unfit to return to heavy work, such as that of a cook, but able to return to lighter forms of employment, if available. The Jervis Bay area is not a metropolis where suitable light work would be readily available.

18. Dr Andrews, who saw her for the defendant at about the same time, also thought that the injuries were muscular and ligamentous, with probably some facet joint strain which was relieved for short periods by physiotherapy.

19. In November 1989 her solicitors referred her to a rehabilitation specialist, Dr Lee, at Nowra hospital. Dr Lee also gave evidence and was cross-examined by telephone. She diagnosed chronic pain syndrome, consequent on low cervical facet joint pain and low thoracic joint pain. She did not think her pain would improve significantly, but that she might benefit from counselling.

20. In December 1990 the plaintiff obtained a casual job with Sea Scene, a sports wear shop in Vincentia, which lasted over the holiday period, to 23 February 1991.

21. In March 1991 she obtained a part time casual job with a friend of many years, Mrs Klem, who operates a shop at Sanctuary Point, where she still works 3 half days a week.

22. In June 1991 Dr Lee arranged for her admission to the rehabilitation ward at Port Kembla Hospital, to teach her how to cope with her chronic pain. She has benefitted to some extent from that experience.

23. She has been seen by a number of other doctors, whose reports are in evidence, but I do not think that their opinions differ in any significant way from those of Dr Lee, whose opinions as given in evidence I accept.

24. The plaintiff will always have pain in the neck and back and headaches. She will continue to need medication, and some form of massage to a lessening degree. From time to time, particularly if she over exerts herself, she will need to go to bed for a week or so, with occasionally more severe episodes. As she gets older, as Dr Teychenne pointed out, she is at risk of developing progressive degenerative changes in the cervical spine, and of developing recurrent cervical disc prolapse with even minor trauma. That risk does not amount to a probability, but is something that must be taken into account. She is otherwise healthy, and there is no reason to base the assessment on anything other than a normal life expectancy.

25. For her pain and suffering and loss of amenity I award $40,000, of which $15,000 relates to the future.

26. Interest on the past component of that award at 4% is $3,890.

27. The out-of-pocket expenses are agreed at $11,390.02. There is no claim for interest in respect of those expenses, nor for any Fox v Wood component on the past loss of income.

28. At the time of the accident she was earning approximately $295 a week after tax. It is true that she had not been earning that amount constantly over the years before the accident. However, there is no evidence that she would have stopped work for any reason, and the figure seems to me to be a proper measure of her income earning capacity.

29. When measuring the extent to which she would, but for the accident, have exercised that capacity it is necessary in the circumstances of this case to discount the global figure to some extent, to take account of possible illnesses, change of occupation and other contingencies.

30. But I see no reason why that discount should be of the order of 50%, as submitted by Counsel for the defendant.

31. The time since the accident is close to 197 weeks. Even without allowing for wage increases over the period, the total amount that she could have earned is therefore of the order of $58,115.

32. She was able to earn $930 in 1989, $800 while working at Sea Scene, and I calculate $2,728 as her earnings at Casual Affair. That leaves a sum of $53,657. I think justice would be done between the parties by allowing $50,000 for past loss of income. In lieu of interest on that sum I award $15,000.

33. For the future, as I have already held, she will always have pain to some extent. At present the work that she is doing is about the limit of her abilities, within the job market reasonably available to her. I accept Dr Lee's prognosis that from time to time her pain will be disabling for short periods. The plaintiff's ability to cope with her pain has improved to some extent, and she is motivated to continue to improve.

34. But I think it is quite unreal to expect that she will recover her former income earning capacity within 5, 6 or 7 years, as was submitted, even if after 2 or 3 years she might be capable of doing a simple job five days a week, as Dr Lee conceded.

35. Approximate figures are appropriate to mark out the area. The difference between her pre-accident and present earning capacity is of the order of $200. To age 60, a period of about 12 years, the present value of that difference at 3% is $105,400. To age 65, it is $139,400. There should be a greater discount than any conventional 15% on account of the likelihood that her earning capacity may improve and be exercised to some extent.

36. As a matter of judgment, I think that $80,000 is a fair compensation for the loss of future earning capacity.

37. I agree to some extent with the submission of Counsel for the defendant that the household circumstances were such that it would not have been reasonable to have employed domestic help, at any rate after the time for which she needed help in dressing herself, and I am not persuaded that there should be any award on the basis of the principles in Griffiths v Kirkmeyer beyond a period of about six months. On that account I award the sum of $1,500.

38. For the cost of future medication and occasional physiotherapy I award the sum of $8,000.

39. The total award is therefore made up as follows:
General Damages $40,000.00

Interest $ 3,890.00
out-of-pocket expenses $11,390.00
Past loss of income $50,000.00
Interest $15,000.00
Future loss of income $80,000.00
Griffiths v Kirkmeyer $ 1,500.00
Future medical $ 8,000.00
Total $209,780.00

40. On reviewing the detail of this judgment I am conscious that I may have been too generous on some items, too niggardly on others, but the global sum appears to me overall to be a just one between the parties.

41. I direct the entry of judgment for the plaintiff in the sum of $209,780.00.