Raymond John Stirling v Jane Sandra Fonda [1991] ACTSC 85 (18 October 1991)

SUPREME COURT OF THE ACT

RAYMOND JOHN STIRLING v. JANE SANDRA FONDA
S.C. No. 373 of 1988
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Neck - Soft Tissue Injury - Pre-existing Spondylosis - No Issue of Principle.

HEARING

CANBERRA
18:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $94,390.52.

DECISION

This is an action for damages for personal injury suffered by the plaintiff in a motor vehicle accident on 7 November 1987.

2. The plaintiff was driving a motor vehicle in the course of his employment. While he was stationary at an intersection a vehicle driven by the defendant ran into the back of his vehicle. Liability is admitted.

3. He was wearing a seat belt. He did not strike any part of the car, or lose consciousness. He was able to get out of the vehicle. He was taken to hospital by ambulance, observed for a time, and driven home by a friend. He sustained, in broad terms, a whiplash injury to the neck.

4. In order to decide the consequences of that injury for him, however, it is necessary to examine his previous history. The plaintiff was born in 1947. He left school at the age of 14, and worked for some years as a salesman, and then as a barman at the Mollymook Golf Club. In 1967 he fell into an open cellar at work and injured his lower back. He was off work for only a short time.

5. He had married in 1965, and had two children, but he and his first wife separated in 1974.

6. Meanwhile he had moved to Sydney, where he worked as a salesman of plumber's supplies for a number of years, before returning to bar work at Mollymook, at about the end of 1982.

7. Shortly afterwards he met the lady who was later to be his second wife, Elizabeth, who introduced him to the sport of scuba diving. They began to live together in 1984.

8. With her encouragement he enrolled in 1985 in a course in professional journalism at the Canberra College of Advanced Education. He passed his first year exams, his interests being principally with visual media rather than print.

9. During the Christmas break he injured his back in the course of a dive. In about March 1986 Dr Robson performed an operation (it is not clear whether it was a fusion or a laminectomy) at L5/S1. The operation appears to have been successful.

10. By the time he had recovered from it, however, it was too late to continue that year with his studies. In the course of his rehabilitation he obtained, through Job Start, a position with a television production agency called Videosonics, initially as a Camera Assistant.

11. He enjoyed the work, and showed an interest in it, so that when the period of rehabilitation assistance finished in about August 1987 he was offered, and took up, a full time job with the company. There was no suggestion that the condition of his lower back caused any difficulty to him in doing his work.

12. On 4 November 1987 he attended a general practitioner, Dr Doherty, complaining of a stiff neck, which he said he had been suffering from for about a month. Dr Doherty did not find much restriction of movement on that examination. When he questioned the plaintiff about possible causes the plaintiff told him that he had fallen while skiing during the previous year.

13. In evidence the plaintiff could not remember accurately even the date of that fall, but it seems clear that it had not caused him any immediate problems. He had not interrupted his skiing holiday, and had never sought treatment for it. Dr Doherty's report does not disclose that he prescribed any medication or treatment for his neck on 4 November 1987.

14. Then, on 7 November 1987, the accident giving rise to this action took place. It was not a particularly violent impact, as rear end collisions go. At the hospital X-rays were taken and he was sent home with a soft collar.

15. Over the next two days he felt pain and stiffness, he said in his neck.

16. On 10 November he went to see Dr Doherty. The report of the X-rays that Dr Doherty ordered referred to degenerative changes at C6/7 with some narrowing of the disc and osteophytic lipping. It is clear that those changes had taken place before the accident.

17. Dr Doherty prescribed some physiotherapy and anti-inflammatory medication but he also wanted specialist advice. The plaintiff did not want to go back to Dr Robson, so he was referred to Dr Chandran. Dr Doherty, in his referral letter, said that the X-ray showed C6/7 disc lesion and that the plaintiff's neck was very painful and restricted and he had pain in the mid thoracic and upper lumbar region.

18. Dr Chandran saw him on 24 November 1987. On examination he found no neurological deficits, but the neck was very stiff and showed diffuse tenderness. He diagnosed soft tissue injury, and advised continuation of the physiotherapy.

19. He continued to see Dr Doherty, who records visits on 16 November, 27 November and 11 December 1987. On January 1988 Dr Doherty reported that he was still unfit for work. Dr Chandran reviewed him on 8 March 1988. The pain in the neck was radiating into the hand and elbow and he was complaining of headaches. Physiotherapy was not giving him relief. His neck was still very stiff on examination, but again there were no neurological deficits in the arms.

20. It appears that Dr Chandran considered surgery and even recommended it, but the plaintiff did not want to undergo it, so he recommended conservative treatment in the form of medication and continuing physiotherapy.

21. The plaintiff did not return to work. He received Workers' Compensation for about 6 months. He wanted to return to work, but did not feel well enough, which made him irritable and frustrated.

22. On 10 October 1988, about 11 months after the accident, Dr McEwin examined him for the defendant. He was complaining of neck pain, especially in the lower cervical spine and down into the upper thoracic spine, and headaches.

23. On examination Dr McEwin found neck movements restricted in general by about 50%. He found signs of nerve irritation from the lower cervical spine.

24. His opinion was then that there might have been some aggravation to the lower back as the result of the accident, but that had not lasted beyond about 3 months. His pre-existing cervical spondylosis had been considerably aggravated by the accident, and the aggravation was still continuing. Though fit for light work which would not put strain on his neck, he was not fit for his job as a cameraman or for any medium or heavy work. That disability was the result of the accident.

25. It is significant that his prognosis then was guarded. He accepted that the symptoms could well continue for an indefinite time, and assessed permanent impairment of the cervical spine at 10% on the AMA guide. He also thought that surgery might be called for.

26. About the end of 1988 Elizabeth moved to Darwin in search of another job. Not long afterwards, the plaintiff followed her there, after spending some time in Queensland with friends.

27. On 9 February 1989 he consulted Dr Schmidt, an orthopaedic surgeon in Darwin. He had not been receiving any recent treatment. There was an ache in the mid cervical area, and some restriction of movement. He also complained of pain in the right shoulder and symptoms on the ulnar nerve distribution. Dr Schmidt described the neck problem as "the residual effects of a soft tissue injury to the cervical spine compounded by early degenerative change (cervical spondylosis)."

28. He ordered further investigations of the ulnar nerve problems, and saw him again on 14 March 1989. The neck was then unchanged. Dr Schmidt gave a work certificate to 1 May 1989.

29. I agree with Dr Schmidt's opinion that it is difficult to relate the shoulder tendonitis or the ulnar nerve problems to the accident. He gave evidence and was cross examined, and I see no reason to doubt his explanation for coming to that view. He also expected that the neck symptoms would improve were he adequately to rehabilitate the neck, to regain normal movement and strength for him, bearing in mind the degenerative condition of the neck. He suggested aggressive physiotherapy for the neck and shoulder.

30. The general practitioner whom the plaintiff consulted in Darwin was Dr Brownjohn, who also gave evidence. It seems the first consultation was on 29 August 1989.

31. He had a persistent stiff neck, with minimal extension, 50% lateral rotation and lateral flexion to the left, but full flexion, 80% rotation and lateral flexion to the right. Those are significant restrictions. Dr Brownjohn however recorded that his main problem was with his left arm, on the ulnar and medial nerve distributions. He was having physiotherapy treatment, and on 8 June 1989 he began an exercise program with the Darwin Rehabilitation Centre.

32. Dr Boyce, a consultant neurologist, saw him in Darwin in June and July 1989, but his findings were inconclusive, without the full CT and myelogram tests that he wanted.

33. By September 1989 the physiotherapist at the rehabilitation centre reported that he had built up his strength and range of movement, and that the range of movement in his cervical spine had improved significantly.

34. In February 1990 Dr McEwin reviewed his condition for the defendant. The plaintiff was keeping up his exercises, and actively looking for a job. He said he would take any job he could get in Darwin.

35. He was getting pain in his back after exercise, but referred it to the muscles at the level of L4.

36. His neck movement had improved to the stage where he had almost full rotation to the right and 70% to the left. Extension was limited to 30% of normal. Flexion was full.

37. So far as the consequences of the accident are concerned, Dr McEwin confirmed that the only relevant disability was the aggravation of the cervical spondylosis, which he assessed as having ceased early in 1989.

38. Dr McEwin was not called or cross examined, but I think that his estimate of the time that the aggravation ceased is perhaps a bit sanguine, in the light of Dr Schmidt's and Dr Brownjohn's observations and those of the physiotherapists at the Darwin Rehabilitation Centre.

39. But I see no reason to doubt his opinion that the physical consequences of the accident, so far as the neck is concerned, had ceased by the time he saw him in February 1990. Dr McEwin assessed that he was then unfit for work as a cameraman, or for any continuous heavy work. He was fit for light or medium work without continued heavy lifting or repeated forward flexion. His prognosis was that the conditions of his lower lumbar and cervical spine would worsen with age related degenerative changes over the years. I accept this to mean that the rate of degeneration from then on was not affected by the accident, and would have taken place even had the accident not happened.

40. About the middle of 1990 he at last got a job as a storeman or salesman with a plumbers cooperative. On 30 May Dr Brownjohn gave a letter to say that he had well documented cervical spine problems occasionally requiring narcotics. He noted that he was coping well with full time work, and he was confirmed in the job from June 1990.

41. His next visit to Dr Brownjohn was not till 19 October 1990. His complaints were "Chronic neck pains, not sleeping, occasional severe headache".

42. On 13 November 1990 Dr Brownjohn noted a complaint of "Increasing symptoms of depression over last 12 months, no motivation. Not sleeping. Angry. Tremulous." Dr Brownjohn described the depression as "chemical" in contrast to a reactive depression which results directly from the environment.

43. That is the earliest record of a complaint about depression to any of the doctors involved, but in May 1990 the plaintiff had been referred to a psychologist, Dr Goodman, in connection with his rehabilitation program.

44. He presented evidence of anxiety which Dr Goodman described as -
"Generalised Anxiety Disorder satisfying the following

criteria; easily fatigued; muscle tension and soreness;
irritability; sleep difficulties; difficulty in
concentrating; keyed up and on edge."

45. He commented that some of his frustration would resolve when this litigation is concluded, and his prognosis in August 1990 was,

"I will see him 2 or 3 times for treatment of this
condition during the next 3 months. The condition of
Anxiety Disorder will gradually subside over the next 2-3
years and eventually resolve completely or nearly completely."

46. Notification of this aspect of the claim led to an adjournment of the claim, which had been given a date for hearing. The defendant arranged for an examination by Dr James, a consultant psychiatrist in Brisbane, who saw him in December 1990, and who had available many of the relevant medical reports. His opinion was that the plaintiff was not clinically depressed, but that he had undoubtedly experienced symptoms of anxiety and irritability after the accident. He was by then having difficulty in his marriage. Elizabeth found him moody and irritable and difficult to live with. They were drifting apart.

47. Dr Goodman saw him during January 1991. He thought his condition had transformed from generalised anxiety disorder to depressive neurosis in the recent months. He also furnished a report commenting on Dr James' report. Dr James then supplied another report discussing the issues raised in that and other medical reports. Neither Dr Goodman nor Dr James gave evidence or was cross examined.

48. In March 1991 Dr Brownjohn referred him to Dr Branson, consultant psychiatrist with the Department of Health and Community Services. Dr Branson was not called or cross examined either.

49. These three authorities have different views about the plaintiff's condition and about its relationship to the accident. The only way I have of resolving the conflicts is to look at the probabilities as they arise on the rest of the evidence.

50. From that point of view I do not think that Dr Branson's opinion can be sustained. It is an exaggeration to my mind to say that the plaintiff's whole life was dramatically changed as a result of the accident, or that he developed a major depressive illness during 1990.

51. When I review the detail of the other medical reports, as Dr James did so carefully in his report of 23 May 1991, I find that I agree with his summary, which is in the following terms,

"I think it is more probable than not that Sterling's
unhappiness is not so severe as to represent a major
depressive illness and can be described as an Adjustment
Disorder with anxious and depressed mood (reactive
depression), which has developed because of the marital
problems in late 1990 and is not in any major sense
related to the after effects of the accident in 1987.
I do not consider that Mr Sterling's life has been
dramatically changed following the motor vehicle accident
in November 1987. I consider that Sterling would have
been under some psychological stress because of a painful
neck condition caused by a whiplash injury in November
1987 but I think that psychological stress and pain and
disability caused by that accident should have subsided
within a period of twelve months after the accident.
I consider that the reactive depression which developed
towards the end of 1990 was due to the marriage breakup
and not to any after effects of the motor vehicle accident
of November 1987.
I do not consider that Sterling has any personality
change. He did not sustain any organic brain damage in
the accident and I do not consider that a mild reactive
depression due to a marital problem can be construed as a
personality change.
I can understand how Sterling wishes to attribute all his
present life difficulties to the after effects of a
compensable accident which occurred in November 1987, but
I think it is probable that Sterling's pre-morbid (that is
pre-November 1987) personality, which is due to
constitutional causes, is causing Sterling's difficulties
in adjusting to his life situation."

52. The plaintiff's former wife gave evidence of the course of their marriage, giving a description which may have softened with the passage of time, but it did not cause me to depart at all from my agreement with Dr James's view.

53. In summary therefore I find that the plaintiff sustained a moderately severe whiplash injury to the neck, which aggravated a condition of cervical spondylosis which had already begun to show symptoms.

54. There may have been an aggravation of the existing weakness in the lower back, but that would have ceased after about three months.

55. The exacerbation of the condition of the cervical spine caused by the accident had ceased by the beginning of 1990.

56. Symptoms that he experienced in the shoulder and on the ulnar nerve distribution were not related to the accident.

57. As a result of the accident he was disabled from continuing with his career as a cameraman, which he was looking forward to.

58. It may be that his degenerative condition would have had that result at some time in any event, but that does not affect the causation so far as general damages are concerned.

59. Physically, the consequences of the accident are now spent. Psychologically, the picture is a little more complex.

60. For some time after the accident his level of anxiety and frustration would have been raised. During 1990 there was a complex of circumstances that caused a more significant emotional reaction. Among those circumstances were the continuing pain from causes not related to the accident, difficulties in his marriage, frustration at not being able to work at a job he enjoyed and continued postponement of this litigation. Those circumstances interacted with his emotions. That emotional reaction will probably subside significantly over the next few years. It should not be attributed even mainly to the accident, but the accident and its consequences has contributed to it significantly.

61. For his pain and suffering and loss of amenity I award $32,000, no significant part of which would relate to the future.

62. On the past component I award interest at 4%, amounting to $5,000.

63. Exhibit F sets out a list of out-of-pocket expenses, showing $13,461.52 as having been paid by an insurance company, and $9,301 as being unpaid.

64. The defendant concedes that the plaintiff incurred out of pocket expenses amounting to $13,598.50, but does not concede that all of them related to the consequences of the accident. No criteria based on the evidence are suggested for disallowing any particular items. As a matter of judgment I think that probably almost all of those conceded had sufficient connection with the accident to be allowable.

65. In those circumstances, I allow that sum in full, at $13,598.50, but make no award of interest on any part of that item.

66. The Fox v Wood component is agreed at $1,364.02.

67. There is no reason to find that, had the accident not happened, he would not have continued in the job with Videosonics. It does not appear on the evidence that he intended to leave that job in order to attend or resume the TAFE course that he had enrolled in before his back injury. I think he had found the job that gave him all the satisfaction that he wanted from interest in visual media.

68. His neck spondylosis had become symptomatic, and problems with his neck could well, at some time in the future, have affected his ability to work as a cameraman, but it does not seem probable to me that he would in fact, have lost time from work for that reason between November 1987 and June 1990.

69. I think that he was always motivated to work, and I do not accept the submission that he failed to mitigate his damage in that regard. I think the reports of the rehabilitation unit make it clear that he was being truthful when he told doctors that he wanted to get back to work, and I find that he did so as soon as suitable work became available.

70. The accident was the cause of his being out of work in the first place, and its effects were still operative on him when he went to Darwin via Queensland. That change in fact enhanced his opportunities for employment, which he took up as soon as he could.

71. I propose to allow in full the claim for past loss of income. The defendant did not submit that the calculations set out in the particulars were not correct, and I find they are supported by the evidence. I allow $32,428 for past loss of income.

72. In lieu of interest on that lost income I award a lump sum of $10,000.00.

73. It is clear from the findings I have made that the accident has not caused any future loss of income earning capacity.

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

Pain and Suffering $32,000.00
Interest $ 5,000.00
out-of-pocket expenses $13,598.50
Fox v Wood $ 1,364.02
Loss of income $32,428.00
Interest $10,000.00
Total $94,390.52

I direct the entry of judgment for the plaintiff in the sum of $94,390.52.