Jennifer Anderson v Maria Culka [1991] ACTSC 88 (21 October 1991)

SUPREME COURT OF THE ACT

JENNIFER ANDERSON v. MARIA CULKA
S.C. No. 79 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 - Neck Injury - Cloward's Procedure - Agoraphobia - Persisting weakness in Right Arm - Functional Disability - No Issue of Principle.

HEARING

CANBERRA
21:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $131,444.09.

DECISION

This is an action for damages for personal injury arising out of a motor vehicle accident on 2 September 1989. Liability was admitted at the hearing.

2. The plaintiff was born on 24 June 1943 in Yorkshire, and after obtaining her 'O' levels at school in England she trained as a nursing sister and worked for some years as a nurse. She was married in 1962 and her first child was born in 1963.

3. At the age of about three months the child fell ill with what appeared to be meningitis. The cause of the illness was never discovered, but when the child came home at the age of eight months the plaintiff and her husband had great difficulty in dealing with his disabilities. After some months the plaintiff suffered an episode when she was unable to move. The child was placed in a special hospital and died at the age of three.

4. She and her husband had two more children in 1965 and 1966 and during their childhood she did not work. She did however, over a period of three years, obtain bookkeeping qualifications. The family came to Australia in November 1972.

5. She had some work as a bookkeeper in Western Australia and came to Canberra in 1978.

6. There she obtained nursing work at Morling Lodge, an aged persons hostel and nursing home.

7. In 1985 she took up office work again. In April 1986 trouble that she had in her lower back resulted in her undergoing a lumbar discectomy at the L5/S1 level.

8. She made a good recovery from that operation, but it was obvious to her that she would not be able to return to nursing work because of the risk of further injury to the back.

9. In April 1989 she obtained employment as a customer service officer with the Canberra Building Society, a position that she still held at the time of the accident.

10. On 2 September 1989 she was driving a motor vehicle at the intersection of Hindmarsh Drive and Namatjira Drive, an intersection controlled by traffic lights. In compliance with a right turn green arrow she was making a right hand turn when a vehicle driven by the defendant travelling in the opposite direction collided with the front of her vehicle.

11. She was wearing a seat belt. Her vehicle was extensively damaged at the front and was forced through a 180 degree turn. She was severely shaken up and immediately felt severe pain in the sternum and abdomen.

12. She was assisted by some bystanders from the car and sat down in another vehicle until the ambulance arrived.

13. She was taken by ambulance to Woden Valley Hospital where x- rays were taken of her skull, chest and ribs.

14. The hospital notes record that on clinical examination she was unable to move her left leg, she had weakness of the finger of the left hand, she was tender over the sternum, and she had bruising over the lower abdomen. X-rays did not reveal any fracture or significant abnormality. She had some seat belt injury to the sternum and abdomen and had had a bump on the head but no loss of consciousness. She was retained under observation for about four hours and then allowed to go home with her husband.

15. Over the next two days she experienced severe headaches and pain in the neck, right shoulder and left shoulder.

16. On the 4th September 1989 she consulted Dr Greenman, her general practitioner, who observed bruising over her sternum with pain on breathing, coughing and movement as well as pain on movement of the neck. He prescribed a cervical collar.

17. When Dr Greenman saw her again on 8 September, she was complaining of pain in the right axilla and scapula and tenderness on the dorsal vertebrae. X-rays of the full spine were arranged, but did not disclose any abnormality. Dr Greenman noted that on 15 September she was emotionally depressed, agoraphobic and vague. She therefore referred the plaintiff to Dr Colin Andrews, a neurologist.

18. Dr Andrews saw her on 3rd October 1989. She complained to him about the neck pain and panic attacks and her fear of going outside. The pain in her neck was on the right side in the mid cervical region with some pain over the right trapezius region. There was no sign of nerve root involvement. On physical examination Dr Andrews noted mild restriction of neck movement. There was tenderness over the costo-condile junction. There were no abnormal neurological signs and Dr Andrews felt that the injuries were largely soft tissue. He gave her medication to deal with the problems that she was having of episodes of panic in open or crowded spaces.

19. Her neck symptoms did not improve and a CT scan of the cervical spine performed on 13 November 1989 revealed C5/6 disc protrusion with spinal chord and nerve root compression. Dr Greenman therefore referred her to Dr Newcombe, a neurosurgeon, who saw her first on 12 January 1990. It was Dr Newcombe who had performed the operation on her lower back.

20. He found that on lateral flexion of the neck there was restriction to about 30 degrees to each side, and a loud crack was elicited on lateral flexion towards the right. He diagnosed an intervetebral disc protrusion at C5/6, caused by the injury sustained in the accident. He advised surgery.

21. On 15 February 1990 she was seen by Dr Danta for the defendant. Dr Danta agreed that she had symptoms of a C5/6 nerve root lesion, and he thought that it was quite justifiable to proceed with the surgery. He agreed that the cause of the disc protrusion was the accident. However, he noted that the nervousness, agoraphobia and similar symptoms had completely settled. The bruising had also settled but the plaintiff still had some slight pain in the anterior chest wall.

22. Dr Newcombe carried out Cloward's procedure on 20 February 1990. When Dr Greenman saw her on 13 March she was continuing to improve after the operation. On 4 April 1990 she again presented to her with neck pain, but continuing to improve. She was using a collar while driving and at night and was unable to lift heavy objects.

23. Dr Newcombe reviewed her on 10 April 1990 and noted that the plaintiff had done well, particularly in the first two weeks following the surgery, but that some intense pain had recurred behind the neck on the left side and there was some radiation of pain down the right arm. There was still some weakness in the right hand.

24. On examination he found that lateral flexion of the neck was reduced to 30 degree to each side.

25. Her depression and agoraphobia had not ceased, however, and Dr Greenman referred her to Dr Lee, a consultant psychiatrist, who first saw her on 21 May 1990. The history of the symptoms that she gave to Dr Lee was in general consistent with what she had told other doctors, and with her evidence. In his opinion dated 29 October 1990 Dr Lee set out his findings and treatment as follows,
"It seems that this person has suffered from an emotional

reaction with features of anxiety, depression, panic and
phobic states in the context of physical injury and chronic
pain after her accident. She had used Valium, Analgesics and
Sinequan in the past with some relief. She needed a Cloward's
operation in Feb 1990 but this only corrected some of her
physical pains. She has continued to suffer emotional
disintegration with phobic anxiety panic reaction and a
change of personality manifesting as withdrawal from others
and a concomitant loss of confidence in herself. This has
created secondary reactive depression.
I have seen this lady over five sessions with supportive
psychotherapy and adjunct use of medication. Because of her
phobic and panic reactions her medication was changed from
Sinequan to Anafranil with good response.
When last reviewed on 22.10.90 she reported feeling "normal"
with return of good feelings of herself. She acknowledged
she was no longer nervous or uncomfortable and was sleeping
well again. She had emotionally reintegrated back to normal
functioning. Nonetheless her physical pains have continued
in the right arm extending from the shoulder to the wrist
like a "nagging toothache". Certain activities still
exacerbate it. She was still continuing treatment and
attending the rehabilitation unit.
She reported that she had stopped all medication including
Anafranil, Mogadon and Valium for about two weeks. Mentally
she feels keen to become productively employed again but is
unsure about her capacities because of her physical
disability. She alleged that she was told it could reach 80%
improvement in the future. In the meantime she is keen to do
something that would not exacerbate her physical state and is
hoping for some form of administrative or other type of work.
I felt that it was no longer necessary for this person to
continue further treatment but could recontact if necessary.
I have discharged her to her general practitioner for
continuing care."

26. On 11 July 1990 she was seen again by Dr Danta for the defendant. She told him about the increase in neck pain that had come on some time after the operation, but said that during the previous three weeks the pain had significantly diminished and was now described as only an ache. She had not returned to work because she felt that she could not cope with the use of the keyboard and writing involved but was hoping to obtain light duties. She was able to do light household work. Dr Danta felt that it was too soon after the operation to come to any concluded opinion. Dr Keiller also saw her for the defendant at about the same time, on 20 July 1990, and was of much the same opinion. Not long afterwards, on 27 July 1990, Dr Newcombe reviewed her condition. He thought it was unlikely that she would be able to return to work as a teller because of the constant keyboard use. Nevertheless, he encouraged her to have a more positive attitude towards returning to work and referred her to Dr Corry with a view to further rehabilitation.

27. Dr Corry first saw her in August 1990. She felt the surgery had been successful so far as the pain in the neck was concerned. She did have, however, persisting pain in the right arm with a feeling of weakness and heaviness, and fatigue developed with the use of the arm. She was restricted in any activity which involved sustained use of the right arm or hand.

28. Dr Corry found a lot of tenderness and some wasting and weakness of the muscles around the right shoulder and limited scapular movement. He agreed that the persisting weakness around the shoulder and pain in the right arm with activity limited her tolerance for using the arm, and that the disability was such that she could not return to normal duties as a teller at the building society. He prescribed a short period of intensive exercise.

29. She received instruction in mobilising and coordinating her arm but when she saw Dr Corry in December 1990 she reported that she was still getting pain in her neck and upper back as well as her arm which was worse than before. Her evidence was to the same effect. Dr Corry regarded these soft tissue problems as persisting injury from the whiplash type trauma. He referred her to a physiotherapist in Batemans Bay where she and her husband were, by then, living.

30. She attended the physiotherapist, Mr Tyers, but after five treatments, although there was some improvement in the scapular pain, there was no improvement in the amount of arm pain, and she was suffering from headaches brought on by the physiotherapy treatment. The treatment was discontinued on 18 February 1991.

31. In February 1991 she was reviewed by Dr Keiller for the defendant. She was sensitive to the investigation but Dr Keiller reported some involuntary muscle spasm in the neck muscles and tender points around the shoulders. He thought that the return of the neck symptoms and headaches were associated with the recent physiotherapy and thought that they would be temporary. When Dr Keiller saw her again on 5 July 1991 he found no sign of involuntary muscle spasm and all movements were full. He did not doubt that she still had occasional headaches and neck stiffness, but he thought that they were exaggerated, and he suspected that her reaction to examination suggested a deliberate attempt to fabricate weakness in her right arm. Dr Keiller did not give evidence and was not cross examined about this opinion, but Dr Danta who saw her only ten days later did not share his suspicions.

32. The most recent examination was by Dr A.P. Millar on 24 July 1991. In Dr Millar's opinion, the plaintiff appears to have developed a cervical ligamentous strain as a result of the accident together with a marked emotional problem.

33. The treatment by the psychiatrist of the depression and agoraphobia had been successful, and there was no evidence of that disability except for her fear of travelling in cars, which is so common. He thought that the weakness of the arm and of the grip in her right hand was totally functional, and unrelated to any underlying physical problem, but he did not suggest that it was simulated. He thought that her emotional state would probably improve following settlement of the litigation. Physically he assessed her as being fit for light to moderate work which did not involve prolonged periods with her head forward. Her existing failure to work is due to the overlying emotional state.

34. In evidence she stated that she and her husband intend to return to Canberra in about the next month in order to be around the work force again and to try to get some work. Her daughter is also in Canberra. Her husband was involved in an accident in 1987 and has himself had three operations on the back. The only treatment that is continuing is taking medication.

35. It is very difficult to decide, even upon the probabilities, what the future holds for her. The injury went beyond mere soft tissue damage, and an operation was necessary, and a number of previous episodes in her life demonstrate that she is liable to psychosomatic disability.

36. I fear that it would be unjust to her to decide that within one or two years she would be quite capable of doing the same work that she was engaged in before the accident. On the other hand I think it would be unjust to the defendant to compensate her on the basis that over the next fifteen years or so she will be completely prevented from obtaining any work.

37. As Dr Lee points out, her husband is an invalid pensioner and this must add a considerable amount of stress to her living, and once settlement of this litigation has taken place, her financial burdens will be relieved to a considerable extent and there will be no need for her to maintain her present state of functional disability.

38. For her pain and suffering, I award the sum of $34,000.00, of which $7,000 relates to the future. I award interest on the past component of that award at 4%, amounting to $2,300.

39. The medical and pharmaceutical expenses were not contested at $8,608.70, nor were the expenses of assistance with housekeeping and lawnmowing at $623.39.

40. The past loss of income was calculated in the Statement of Particulars to 3 May 1991. I add to the sum there set out, an amount calculated to the date of this judgment at $330.15 per week, giving a total for this item of $35,912. The plaintiff received workers' compensation, but there is no evidence upon which I could base any award of interest on her past loss of income.

41. The difficulty in deciding what the future holds for the plaintiff is reflected in deciding the award for loss of future income earning capacity.

42. The present value of $330 a week for one year at 3% is $16,830. I am convinced for the reasons set out above, that such an amount would be too low. The actuarial value of $330 a week to the plaintiff to age 65 (Luntz p 549, table 4A) is $222,090. Even to discount that amount by 50% would give an amount which would obviously overcompensate her.

43. As a matter of judgment I think that an amount of $50,000 will do justice between the parties.

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

Pain and Suffering $34,000.00
Interest $ 2,300.00
Medical expenses $ 8,608.70
Domestic Assistance $ 623.39
Past wage loss $35,912.00
Future wage loss $50,000.00
TOTAL $131,444.09

I direct the entry of judgment for the plaintiff in the sum of $131,444.09.