Sandra Robyne Dearing v the Nominal Defendant [1991] ACTSC 92 (25 October 1991)

SUPREME COURT OF THE ACT

SANDRA ROBYNE DEARING v. THE NOMINAL DEFENDANT
S.C. No. 1382 of 1987
Damages - Negligence

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft Tissue Injuries - Unresolved Grief - Anxiety and Depression - Exacerbation - No Issue of Principle

Negligence - Motor Vehicle Accident - Series of Rear End Impacts - No Issue of Principle.

HEARING

CANBERRA
25:10:1991

ORDER

Judgment be entered for the plaintiff in the sum of $41,657.83.

DECISION

This is an action for damages for personal injuries received by the plaintiff in a motor vehicle accident on Friday 17 July 1987.

2. At about five o'clock in the afternoon on that day, in peak hour traffic, the plaintiff was driving a car from Fyshwick along Dairy Flat Road, intending to travel to Campbell Park. A vehicle in front of her came to a full stop. At that point there were two lanes of traffic for vehicles travelling in the same direction as the plaintiff. She came to a stop behind the vehicle in front of her. She checked her right hand mirror to see whether she could change lanes but that was not possible because of the weight of traffic. The vehicle behind her also came to a stop in safety.

3. She then heard a series of noises coming from behind and felt the impact of a collision from behind. She braked, and then there was another series of noises from behind and she was pushed into the back of the vehicle in front.

4. She had been wearing a seat belt. She was shaken up. She got out of her car. There had been a line of vehicles involved in a series of rear end collisions. The plaintiff was in the second vehicle. The fifth vehicle had been driven by a person for whose negligence, if any, the defendant is responsible.

5. The defendant has submitted that the plaintiff is not able to succeed in the action because she is unable to identify which of the two impacts from the rear it was that caused her injury.

6. When she felt the first impact and her car commenced to go forward her evidence is that she put her foot on the brake, and was able to bring her vehicle to a stop without there being any, or any noticeable, impact with the car in front of her. In cross examination she said,
"I remember looking in the mirror to see what had happened, and

thinking, "Well, that is over". I remember taking my foot off
the brake, then the second bang, so I would not have had my foot
on the brake when the second bang came."

7. There is nothing in the evidence to suggest that the injuries that she suffered were the result of the first collision. It was the second collision which was violent enough to push her car into the vehicle in front.

8. On the basis of the evidence, I think that the more likely explanation of what happened is, that the fourth vehicle collided with the rear of the third vehicle forcing it onto the plaintiff's vehicle in the first impact, and that it was then the fifth vehicle that collided with the fourth, to cause the second, more violent series of impacts.

9. On that basis, I think it more probable that it was the negligence of the driver of the fifth vehicle that caused the plaintiff's injuries. There will therefore be judgment for the plaintiff.

10. There was no suggestion that she was, in any way, guilty of contributory negligence.

11. On the date of the accident, the plaintiff was a married woman, aged 39 with three children. She was employed as an Administrative Service Officer Grade 3 in the Australian Public Service.

12. In September 1977 both of her parents had been killed in a motor car accident. As the tenth anniversary of that event approached she had begun to suffer from the consequences of an unresolved grief reaction. She had consulted her general practitioner, Dr Marinos, about her problems and was referred to Dr Tennant, a consultant psychiatrist with the ACT Health Authority. Dr Tennant first saw the plaintiff on 29 June 1987. She reports that the plaintiff was then suffering from a pathological grief reaction. She was however, highly motivated, used counselling appropriately and appeared to Dr Tennant to be improving.

13. She was then involved in the accident on 17 July 1987. In that accident the car that she was driving was so damaged that it was written off. That car had been a present to her by her parents. Its loss increased the emotional hurt.

14. After the accident she was able to telephone her husband who came to drive her home. On the way home she noticed a tingling sensation in her left arm, and the next morning she felt that her neck was stiff.

15. She attended at Woden Valley Hospital on 18 July 1987. The notes record that she there complained of pain in the neck and the back of the chest, left knee, right and left feet, left and right elbows and left fifth metacarpal. X-rays of the cervical spine revealed some little degenerative change, but no evidence of any fracture. She was given a soft collar and some analgesic. She went to work on the 20th and 21st July but found that headaches and aches in the neck built up during the day and she began to suffer from an ache in the lower lumbar area radiating into the outer left thigh.

16. She went to see Dr Marinos on 21 July. Dr Marinos found slight tenderness in the soft tissues over the lower neck, upper thoracic spine and shoulders. She had slightly restricted movements in the lower back and there was tenderness over the left sacroiliac joint. Straight leg raising of her left lower limb was restricted. Further x-rays of her lumbo sacral spine and sacroiliac joints and chest did not disclose any relevant abnormality. Dr Marinos certified the plaintiff to be unfit for work until 24 July, and prescribed more analgesics.

17. On 24 July she was referred to a physiotherapist and certified to be unfit for work until 31 July. On 31 July she was still complaining of low back pain and her certificate for work was extended until 7 August. On that date there had been further improvements but she was still complaining of persistent low back pain and her certificate was extended again until 24 August.

18. When Dr Marinos saw her again on 24 August she was then complaining of increased emotional and psychological problems so that she was referred again to Dr Tennant. She continued to see Dr Marinos through September 1987 and to receive physiotherapy. She was certified unfit for work until 28 September 1987.

19. In April of 1988 she saw Dr George, a partner of Dr Marinos, complaining of continuing pain in her left ankle and her left knee. Dr George suspected sciatica and arranged for a CT scan which showed slight narrowing at the L4/5 disc space. He therefore for her to be seen by Dr Colin Andrews, a neurologist.

20. On 16 January 1989 she was seen by Dr Andrea for the defendant. She reported to him that her chest and shoulders had been painful for some weeks after the accident but had fully recovered, and that her facial bruises, left knee and left wrist had recovered. Her neck was still stiff and painful, the tingling in her left arm and hand had lasted for several weeks but had been cleared up by the physiotherapy. She was still suffering pain in the lumbar sacral region of the spine especially on the left side.

21. On examination, Dr Andrea commented that she was very grossly overweight. He could find no abnormality in the neck, face, shoulders or left arm. Apart from tenderness over the left sacroiliac joint there was no abnormality in the back. He thought that she had suffered soft tissue injury which should have recovered by that time, which was about eighteen months after the accident.

22. Dr Andrews did not see her until the 2nd June 1989. He saw the CT scan which had been performed in June 1988. He noted that the plaintiff had lost 3 stone recently as the result of gastric stapling, and that she then weighed about 12 stone. His impressions were that the dominant problem was her lower back. There was some evidence of bulging of the disc at L4/5. On 31 August 1990 Dr Andrews referred her for more physiotherapy and prescribed an anti-inflammatory agent. He ascribed the continuing neck pain to aggravation by the accident of cervical disc pathology at C5/6.

23. She continued to see her general practitioner and on 7 March 1991 she was complaining to Dr Marinos of persistent neck pain and lower back pain for which she continued to take Naprosyn tablets. She had learned to live with her problems but certain activities caused her symptoms to flare up. On the recommendation of Dr Marinos she was provided with an orthopaedic chair at work.

24. As far as the emotional problems are concerned Dr Tennant reported in October 1987 that she was gradually recovering but was still suffering a great deal from anxiety, especially when driving.

25. Dr Saboisky, consultant psychiatrist, examined her for the defendant on 31 July 1991. The history that she gave to him was consistent with what she had told other doctors and with her evidence. In his view, the plaintiff by then was psychiatrically normal, though suffering mild symptoms of car driving phobia. He agreed that it was clear that at the time of the accident she was in the process of coming to terms with ten years of suppressed feeling in respect of her dead parents, but he did not think that the accident contributed significantly to her working through these issues with Dr Tennant.

26. However Dr Tennant, who saw her much more frequently, and was her treating doctor, gives a slightly different picture, which I accept. Before the accident the plaintiff had come under her care for treatment of her unresolved grief reaction. She was improving rapidly when the motor vehicle accident caused physical injuries and a recurrence of the previous symptoms of grief, anxiety and depression.

27. The plaintiff again cooperated fully in Dr Tennant's treatment and her symptoms of grief and depression gradually improved. In August 1991 she was, on the whole, coping very well, but still continued to experience a degree of anxiety. She was continuing to suffer some pain in the neck and back, but had been able to modify her life to ensure that the pain did not disrupt her life. She continues to experience anxiety about driving a car, and it is likely that she will always suffer some anxiety. Dr Andrews also thinks that the neck and back pain are unlikely to improve any further.

28. She will continue to experience some limitation in her ability to carry out physical activities such as gardening. There are days when she does not find it necessary to take medication. There is some requirement for continuing medication, but the cost is not capable of calculation and I propose to take it into account in assessing general damages.

29. She suffered moderately severe soft tissue injuries, which probably aggravated a degenerative condition of the spine in her neck and back. She also suffered a moderately severe set back in the process of resolving her grief reaction.

30. She largely recovered both physically and emotionally over about two years, but will always be left with some effects of the accident. She has come to terms with that prospect.

31. For general damages I award $32,000, of which about $6,000 relates to the future. I award $4,500 interest on the past component of that award.

32. The loss of income has been agreed at $4,130.43, and the medical expenses at $1,027.40.

33. The total award is made up as follows:

General Damage $32,000.00
Interest $ 4,500.00
Loss of Income $ 4,130.43
Medical Expense $ 1,027.40
TOTAL $41,657.83

I direct the entry of judgment for the plaintiff in the sum of $41,657.83.