Linda Agnes Podmore v Joseph Hetherington [1992] ACTSC 11 (7 February 1992)

SUPREME COURT OF THE ACT

LINDA AGNES PODMORE v. JOSEPH HETHERINGTON
S.C. No. 743 of 1988
Assessment

COURT

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

CATCHWORDS

Assessment - Damages - Personal Injury - Motor Vehicle Accident - Whiplash Injury - No Issue of Principle.

HEARING

CANBERRA
7:2:1992

ORDER

Judgment be entered for the plaintiff in the sum of $79,630.00.

The defendant pay the plaintiff's costs.

The costs of the action do not include the costs occasioned by the adjournment on 30 July 1991.

DECISION

This is the assessment of damages in an action for personal injury caused to the plaintiff in a motor car accident on 19 March 1987.

2. The plaintiff was born on 31 May 1932, so that she was 55 years of age at the date of the accident and is now aged 59.

3. She left school at the age of 15, and worked in a number of domestic situations for some years, both before and after her marriage at the age of 18. She and her husband had two children. She later went into business with him operating a small country bus service. He became seriously ill in 1971, and they sold the business. She nursed her husband until he died in 1975. In 1982 she came to Canberra, and in August 1982 began employment with the ACT Emergency Housekeeping Service.

4. Her life experience and her attitudes suited her very much for that caring occupation. She found it rewarding, and Mrs Dadge, an officer of the organisation, confirmed that she was exceptional in her willingness to help and care for the clients of the organisation. At first she was working five hours a day, five days a week.

5. In November 1984 she experienced some pain in her left elbow, and consulted her general practitioner, Dr Smith. He diagnosed a repetitive strain injury, prescribed some physiotherapy, and gave her certificates for absence from work for 7 days from 14 November 1984.

6. In March 1985 she saw Dr Smith again, this time with neck pain and soreness over the lateral epicondyle of her left arm. There was loss of power in the arms, and pins and needles in her right hand. Cervical x-rays did not disclose any abnormality, but he sent her to a physiotherapist and to Dr Stubbs. Dr Stubbs was not sure of the cause of the trouble, but mild cervical spondylitis seemed the most likely. He prescribed Feldene, gave her a month off work, and suggested lighter duties.

7. Over the next year she worked only 9 hours a week. When she saw Dr Stubbs in February 1986 she was still getting mild symptoms, and he advised against her increasing her working hours.

8. At about that time, one of the people for whom she was caring died, and her hours reduced to 7 hours a week.

9. In mid June 1986 she went on holiday, to stay with her daughter and grandchildren in England. She returned to Australia in October 1986.

10. She did not then return immediately to work. She had a house in Kaleen which had been let to tenants, and she wanted to spend some time getting it into better condition, so that it would be comfortable for her to live in herself. I accept her evidence that she intended to resume work with the home help agency, and that either Mrs Dadge or Mrs Morant, another officer of the service, offered her a position, to work initially for twelve hours a week. Before she actually took up that position, however, because she was still working on her house, the accident happened which is the subject of this action.

11. She claimed in evidence that the work of cleaning, gardening and other activities did not cause any repetition of the trouble in her left elbow.

12. However, Dr Smith's records disclose that on 10 November 1986 he prescribed Indocid for her and referred her to Mr Rumore for physiotherapy. She was found to have painful restriction bilaterally on cervical spinal rotation.

13. She did not see a doctor again till the accident happened, and there is no evidence to suggest that she was then suffering any symptoms.

14. On 19 March 1987 at about 3pm, she was driving her car in Ellenborough Street Kaleen. She was wearing a seat belt. It was raining heavily, and she slowed down because of poor visibility. A vehicle driven by the defendant collided with the back of her car and drove it forward some distance. She was thrown forward then back. She did not collide with any part of the interior of the car. She felt shocked and numb.

15. Police came, and after completing their enquiries, took her to her home in Kaleen. She went to bed, but woke during the night with severe pain in her neck and down her back. She also felt sore across the ribs, where the seat belt had restrained her.

16. Her daughter-in-law took her the next day to the outpatient's department at Calvary Hospital, where she was x-rayed, and obtained a prescription for Panadol. X-ray of the cervical and upper thoracic spine showed severe arthritis. She later obtained a cervical collar from the hospital.

17. On 25 March 1987 she saw Dr Miller, a locum at the practice of her usual general practitioner, Dr Smith.

18. On examination she was found to have muscular spasm of the paracervical muscles, and tenderness of the trapezius muscles bilaterally. There was tenderness over the thoracic vertebrae T4 to T6, and pain radiating around the right chest. There were no neurological signs, and the injuries were diagnosed as muscular. She was treated with the anti-inflammatory drug Voltaren.

19. On 14 April 1987 Dr Miller saw her again. She still had back pain and tenderness down the full length of the spine. She was referred to Mr Rumore for physiotherapy.

20. She was unable to do any work, and was spending a lot of time resting in bed. Dr Morrison saw her on 25 June 1987, when she was complaining of being anxious, having pain in the neck, being unable to work and fearful of driving in a car.

21. She had replaced her car, rather than repairing the damaged one, but felt that because her ability to move her neck was restricted she was not safe driving, and became very nervous in the car.

22. Her condition did not change much for some time. On 15 March 1988, a year after the accident, she was seen by Dr Smith, complaining of severe back and neck pain on activity. She felt depressed because of inactivity. Dr Smith observed tenderness over the whole cervical spine and the paraspinal muscles. He diagnosed chronic inflammation and stiffness of the cervical and mid to upper thoracic spine, commenced her on Feldene and referred her for more physiotherapy. She obtained only short term relief from the physiotherapy. Dr Smith then thought it unlikely that she would ever return to work with the housekeeping organisation.

23. More than two years after the accident, on 17 July 1987, she was examined by Dr Vanderfield, neurosurgeon, for the defendant. She gave him a history consistent with her evidence and what she had told her own doctors.

24. She had learned to adjust to her symptoms by restricting activities, and still felt anxious when driving, though less so than at first. She had moved to live with her sister because she felt unable to look after her own home, and the inactivity and confinement had made her feel lonely and depressed. Dr Vanderfield agreed that she had evidently suffered soft tissue injury to the back of the cervical and upper thoracic regions, the front of her chest and both hands. She had gradually improved and he expected her symptoms to subside further.

25. Dr Smith had left Kaleen, and on 7 December 1989 she saw Dr Voon. She was taking aspirin daily for the pain in her neck and back. She still had tenderness over the upper spine and related muscles. An x-ray showed some narrowing of the disc space at C5/6, but there were no neurological signs of nerve root involvement.

26. She had met Mr Estella, whom she married in March 1991, and he was helping her with her housework.

27. Dr Voon reviewed her condition in March 1990. He still found tenderness over the spine, and thought her condition stable and doubted that she could go back to work. She was concerned about her nervousness when driving, and in September 1990 she consulted Dr Veness, psychiatrist. He thought she was suffering from a phobic anxiety state, and referred her to Dr Tom Sutton, clinical psychologist, for densitisation treatment. In addition to the chronic pain syndrome, in his opinion she had post traumatic stress disorder, characterised by reactive depression and phobic anxiety state.

28. In October 1990 she was referred by her solicitors to Dr Mann for a medico-legal assessment. In addition to the symptoms of which she had complained to other doctors, he noted occasional epigastric pain on movement, and recommended investigation by Dr Bassett, gastroenterologist, who saw her on 12 February 1991. He thought her symptoms were largely musculo-skeletal in origin, and the result of the accident and consequent stress. There was no gastrointestinal damage, and no specific treatment was called for.

29. Dr Vanderfield reviewed her condition for the defendant on 26 February 1991. She complained to him that overall her neck seemed to be getting worse. He thought that any deterioration was due to the natural progression of degenerative arthritis and cardiovascular disease.

30. Dr White, neurologist, also reviewed her for her solicitors at about the same time, in March 1991. She had benefitted markedly from Mr Sutton's relaxation therapy. Her impending marriage had relieved her anxiety and depression. However, on examination he found marked muscle spasm in the cervical spine at C3/4. Movements were restricted to 75% of normal. He thought that further physiotherapy could be of benefit, and he did not believe she would be able to return to work. In effect he agreed with Dr Vanderfield to the extent that he thought the accident had exacerbated what was probably pre-existing cervical spondylosis, which would probably have remained asymptomatic in the absence of any triggering cause.

31. Neither Dr Vanderfield nor Dr White gave oral evidence, though both Dr Smith and Dr Voon did, by telephone. Dr Saboisky, psychiatrist, who saw her for the defendant on 4 September 1991, did not express a view that was significantly different from that of Dr Veness.

32. I think it is clear from Dr Voon's and Dr Smith's evidence that Dr White was mistaken in thinking that the plaintiff's pre-existing spondylosis was asymptomatic. I think it is probable that the reduction in her working hours in 1986 resulted from the onset of cervical symptoms brought on by strenuous activity such as vacuuming or digging as she was getting her house in order.

33. On the one hand she had a cervical spine which was susceptible of severe injury from the sort of accident that happened. The defendant must take his victim as he finds her.

34. On the other hand it is a serious issue in this case whether the plaintiff, who I think would soon have gone back to work, would have been able to manage 12 hours work a week, or whether she would have been able, or would have wanted, to remain in it when Mrs Dadge, for efficiency reasons, put the minimum number of hours up to 15 a week.

35. It is quite clear to me that, the accident having happened, the consequence was that she has never again been fit for her work, and that she never will be.

36. But her claim for past and future economic loss must be significantly discounted for the possibility that she might not have worked for many years anyway, even had the accident not happened. True it is that there is no fixed retiring age for people in her occupation, but I do not think it likely that she would have worked till the age of 65. In considering this aspect of the case I think it is also significant that she is happily married, to a man who is older than she, and they are under no financial pressures such as would force her to keep working.

37. I am satisfied that out of pocket expenses totalling $4,130 were incurred as a result of the accident. Only $190 has been paid, so that it is not appropriate to award interest on that element of the claim.

38. There was a significant exacerbation of an existing spondylosis, which had previously been symptomatic, but which was not troubling her at the time of the accident.

39. She suffered significant emotional, as well as physical trauma, and, although there has been considerable improvement, she still suffers intermittent discomfort and will continue to do so indefinitely.

40. For her pain and suffering, I award $35,000. Simple interest on the whole of that sum at 4% from the date of the accident is $4,900. Interest may not be awarded on such part of that sum as relates to the future, a proportion which I find difficult to identify. In lieu of interest therefore, I award the sum of $3,500 as a reasonable compensation to the plaintiff for being kept out of her money for nearly five years.

41. If the claim for past loss of income as set out in the statement of Particulars were allowed in full, the total amount would be of the order of $34,000 to the date of Judgment. The undiscounted future economic loss is of the order of $44,000.

42. I have explained my reasons for doubting that the plaintiff would have worked the hours claimed in the past, or that she would have worked at all in the future. However, there is a possibility that she might have.

43. If the claim for the past is allowed in full, and the claim for the future disallowed completely, the result is an award of $34,000. If the two are combined, and discounted by 50% the result is about $38,000.

44. The decision is one of judgment, not calculation, and looking at her age and health just before the accident, her marriage, and the type of work involved, I think that an award of $30,000 for economic loss, past and future, would be just as between the parties.

45. In lieu of interest on the past component of that amount I award a lump sum of $7,000.

46. The total award is therefore made up as follows:
Pain and Suffering $30,000.00

Interest 3,500.00
Out of pocket Expenses 4,130.00
Past and Future Economic loss 35,000.00
Interest 7,000.00
TOTAL $79,630.00

47. I direct the entry of Judgment for the plaintiff in the sum of $79,630.00.

48. I order the defendant to pay the plaintiff's general costs of the action.

49. The action was first set down for hearing on 30 July 1991. Amended particulars had been served on 3 July 1991. The defendant's insurer claimed that it then first became aware of the claim in respect of the post traumatic stress disorder, and arranged for the examination by Dr Saboisky, which could not take place till 4 September 1991. It was necessary therefore to adjourn the hearing, and I reserved the costs occasioned by that adjournment.

50. The plaintiff's solicitors had however, served on the defendant's advisers on 19 December 1990, the reports of Dr Veness of 3 December 1990 and Mr Sutton, which would have brought that aspect of the claim to their attention. The fact that an amended Statement of Particulars with the amendments underlined in red was not provided till much later, does not seem to me to affect that consideration greatly at all.

51. The other matter pressed was that Dr Voon's report dated 28 May 1981 was not served until 7 June, the day after the listing hearing. That report was a significant report, in that it set out, in detail not provided until then, the significant degree of symptoms of spondylosis during 1985 and 1986, before the accident. Dr Voon was not her general practitioner at the time, and was supplying information extracted from Dr Smith's records. Those records could themselves have been subpoenaed to be available at the listing hearing.

52. Looking at the whole picture it seems to me that the adjournment was necessary to enable the case to be properly presented, but that neither party was sufficiently blameworthy to be made to bear the whole of the costs occasioned by it. To the intent therefore, that each party bears her or his own costs of that adjournment, I order that the costs of the action do not include the costs occasioned by the adjournment on 30 July 1991.