Lisa Maree Cleary v Laurie Charles Day [1992] ACTSC 34 (13 April 1992)

SUPREME COURT OF THE ACT

LISA MAREE CLEARY v. LAURIE CHARLES DAY
S.C. No. 1305 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 - Chronic Musculo Ligamentous Pain - Lower Back - Hairdresser - Capacity for full time employment - No Issue of Principle.

Bennett v Jones (1977) 2 NSWLR 355

Metropolitan Meat Industry Board v Williams (NSW Court of Appeal, 22/10/91 Unreported)

Hallett v Shcoevers (ACT Supreme Court, 5/3/92, unreported)

Protonotarias v Zapaznik (ACT Supreme Court, 5/3/92, unreported)

HEARING

CANBERRA
13:4:1992

ORDER

Judgment be entered for the plaintiff in the sum of $129,842.50.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 27 September 1986.

2. The plaintiff was born on 20 May 1966. She left school at the end of year 10, at the age of 16. She had no claim to distinction in academic matters, but she was interested in and highly skilled in athletics and sports. As an occupation all she wanted to do in life was to be a hairdresser, and she had already done some part time work in a salon before she left school.

3. After leaving school she obtained an apprenticeship and began to work full time towards achieving her ambition of having her own business as a hairdresser.

4. On 27 September 1986 she was in excellent health. At about 7.45 in the morning she was driving a small sedan in Hobart Avenue and was wearing her seat belt. The defendant's vehicle collided with hers at an intersection. Her vehicle was struck on the right hand side between the two doors. The plaintiff was thrown vigorously to the left and back to the right and she hit her head on the column between the doors. She did not lose consciousness. She felt shocked and shaken. She was unable to open the door on the driver's side and got out through the door on the passenger's side.

5. Although an ambulance attended the accident her mother took her to Woden Valley Hospital where she was detained for some time for observation. X-rays were taken of her neck and head, she was given a soft collar and sent home with her mother.

6. Her neck and head continued to hurt and she began to notice pain in her back, so much so that on 29 September she went to see her general practitioner, Dr Jolley. She was complaining of chest pain, consistent with seat belt bruising, tenderness of the right upper chest and sternum, tender shoulder muscles and painful restriction of neck movements consistent with a whiplash type injury. X-rays of the skull and cervical spine showed no bony abnormality.

7. When she returned to see Dr Jolley on 7 October 1986 she was complaining of pain in her left shoulder and low back.

8. The pain in the neck was gradually getting better, and on 20 October 1986, when she again saw Dr Jolley, she was complaining of pain and tenderness in the low dorsal and lumbo-sacral spine, especially at the L4/5 level. She had attempted two haircuts at home which had exacerbated the low back pain. Dr Jolley noted that she was in tears and seemed quite distressed. He ordered X-rays of her lumbo-sacral spine, which were normal, and prescribed a course of physiotherapy.

9. She underwent physiotherapy about two times a week for about a month, but it did not give her much relief. On 27 October she was complaining of a broad band of pain and tenderness involving the whole lumbar area. She said that her back ached continually and that movement was painful. She still had some pain in the neck. Dr Jolley prescribed anti-inflammatory medication and an analgesic. He felt that her apparent pain and distress were out of proportion to the injury that she had suffered, and suggested that she consult a specialist. She did not immediately accept that suggestion. In evidence, she said that the medication did not give her any assistance.

10. Dr Jolley saw her on a number of occasions during November and was moved to discuss her case with another consultant. His report of 29 November 1986 concludes:
"I have no doubt that this girl received a mild to moderate

whiplash type injury in the motor accident, but there seems to be
a large emotional overlay which makes assessment and prognosis
most difficult.
It is not intended to imply that there is any malingering
or any deliberate exaggeration going on - I have known
this girl since infancy and have always found her to be
direct and truthful."

Dr Jolley referred her to Dr Colin Andrews who saw her on 22 December 1986.

11. Her neck condition had settled down but the back pain was persisting. It was described as a low lumbar back pain radiating across the top of the buttocks but not into the legs. A CT scan of the lumbar spine and the sacroiliac joints on 17 December 1986 had been satisfactory. On a physical examination straight leg raising was full and there were no abnormal neurological signs. There was some tenderness in the lower back, and Dr Andrews initially felt that the injuries were only muscular and ligamentous.

12. Although she only had a further two months and five days to go before completing her apprenticeship, she did not go back to work. In evidence, her reason for not doing so was that she could not stand up for a long period of time. That is still her attitude and she has not returned to work as a hairdresser.

13. Dr Jolley also referred her to Dr Robson, neurosurgeon, who saw her in March 1987. On examination he noted tenderness in the low back and thought that the right ankle reflex was a little less than the left, but there was no sensory loss and certainly no evidence of much in the way of nerve root trouble. On examining plain X-rays he thought that they showed a narrow L5 S1 disc, but the CAT scan added nothing further.

14. Dr Robson had no doubt that she had a painful disc in her low back, thinking that it was probably L5 S1. His report continued:

"To prove this would of course call probably for discograms, but
that should only be done if she was definitely going ahead to
surgery."

15. He discussed the implications of surgery with the plaintiff who decided to proceed with conservative treatment for the time being.

16. In April 1987 she married. Marriage at about that time was already in her contemplation before the accident. At about that time she also changed her general practitioner and consulted Dr Hislop, the first consultation being on 13 May 1987. On examination he found that she was tender over the lower thoracic spine and lumbar spine, but there was no neurological abnormality and she had full movement. He diagnosed continuing soft tissue damage and felt that acupuncture was appropriate. However, two treatments of acupuncture did not give her any relief.

17. On 19 May 1987 Dr Andrews saw her again. She was still complaining of low back pain, though it was now a little higher in the mid lumbar region and again not associated with any sciatica. He noted the number of different medical treatments and opinions that she was receiving at the time. He did not think that there was any disc trouble, but felt that there was sufficient reason to have a lumbar radiculogram performed. That was done on 1 June 1987 and was normal.

18. Dr Andrews agreed with Dr Kitchin in thinking that her problems were muscular and ligamentous. He thought that she should try to return to work and gave her a certificate only for a further two weeks.

19. In September 1987 Dr Hislop referred the plaintiff to Dr Cassar's Thermography and Pain Management Clinic. Dr Cassar gave evidence and was cross-examined. Her problem as it presented to him at that time, was pain in the cervical and upper lumbar spine. He gave an encouraging prognosis at that stage. Between September and November 1987 she underwent nine treatment sessions in the clinic, including relaxation under the supervision of a psychologist and separate laser therapy both deep and acupuncture.

20. He thought that her disability still precluded her capacity to sustain much standing and that it was even possible that neurosurgery might be necessary if she were to return to hairdressing. Nevertheless, he did not expect any deterioration. Her own evidence was that she did not derive any assistance from the treatment at Dr Cassar's clinic.

21. Her first child was born on 3 April 1989, and her second on 24 April 1990. Her pregnancies were unremarkable although her back pain increased, and she made no complaint of difficulty in caring for the children.

22. These proceedings had commenced in 1988, and on 24 August 1990, the solicitors for the defendant, referred her for an opinion to Dr Dyball, a psychiatrist.

23. He reported:

"She was at a loss to understand why she had been sent to a
psychiatrist and at the end of the interview, so was I.
Asked about this, she replied, "your guess is as good as
mine". She has never before seen a psychiatrist, she has
never complained to any doctor about her emotional state,
nor has she ever received treatment for it. Of course, she
was sent to me because it is alleged that she is suffering
from depression. There is simply not a shred of evidence to
support this and Mrs Cleary does not think so either."

24. Her complaint to him about her back seems to have been that it was a problem in terms of running the home and looking after the children, but she appeared to manage with it in a relatively uncomplaining way. She was no longer able to play sport. Her back had been a relatively constant problem since the accident and treatment had been unsuccessful. Pregnancies had been difficult because of her back, but not in any other way. In Dr Dyball's opinion there was no psychiatric diagnosis to be made either on history or presentation. Dr Dyball was not required to give oral evidence, nor was he cross-examined.

25. On 1 November 1990 the plaintiff was seen, at the request of her solicitors, by Dr Danta, neurologist. She gave him a history which was consistent with her evidence and what she had told other doctors. Dr Danta's general examination was unremarkable. Straight leg raising was normal and back movements were quite full. There was a little tenderness over the paraspinal muscles in the lower lumbar region. There were no abnormal neurological signs. Neck movements were full and there was no neck tenderness. He noted the normal x-rays and CAT scan.

26. His conclusion was that the backache must be due to soft tissue injury to the back and it was somewhat unusual that the plaintiff had not responded, even temporarily, to the conservative measures that she had had. He thought the prognosis was poor precisely because the condition had persisted for so long. However, he considered the possibility that she had sustained a disruption of a disc, but noted that a magnetic resonance scan of the back would be needed in order to investigate this possibility.

27. Dr Danta did give evidence and was cross-examined. The plaintiff did not complain to him of any problem of pain extending from her left buttock into her leg, and he conceded that it was very likely that if there had been any damage to the disc, one would have expected there to have been some neurological sign by the time that he saw her in November of 1990.

28. In summary, he remained of the opinion that more probably her condition related to soft tissue injury rather than to nerve root compression. Although she had a full range of movement on examination, he thought it quite consistent that she might not be fit for a job which involved prolonged standing or sitting in the one position.

29. Her solicitors had her reviewed by Dr Cassar also in November. He had not seen her since April 1988. Dr Cassar's opinion was that the soft tissue injuries and the disabilities in the cervical spine had abated without any residual disability.

30. He thought also that the soft tissue injuries in the region of the dorsal spine had abated, but said that he found evidence of lumbar nerve root impingement. He thought she was fit for casual hairdressing duties amounting to no more than two hours work per day and that she would be better advised to undertake some clerical occupation which allowed both sitting and some freedom of movement, which she could be expected to sustain for four hours per day.

31. If the symptoms of which she complained in her left leg are accurately to be described as sciatica, Dr Cassar conceded that he first detected it in 1990, and that, given that history, he was really not able to say that the sciatica, if any, exhibited by her was causally related to the accident at all.

32. She had been continuing to see Dr Hislop with a fair degree of regularity. His records disclose six attendances during 1988 and thirteen during 1990. In February 1989 he noted that the back pain increased with pregnancy and that he gave advice about posture and exercise. In April 1989 he noted that the back pain was no better after the birth of the child and gave advice about lifting and posture. In November 1989, when she was pregnant with the second child, he noted severe back pain and right leg pain and referred her to physiotherapy. There were seven more attendances during 1991. One of the purposes of the consultations had been to provide continuing medical certificates for workers' compensation purposes. I do note however that the only complaint of pain into her leg relates to her right leg and not the left.

33. In March 1991 her solicitors asked Dr Saboisky, a consultant psychiatrist, to provide a medico-legal assessment. Her complaint to him was that the pain in her lower back had continued in a constant way ever since the accident. It was exacerbated by excessive walking, standing or activity.

34. When working as a hairdresser, which she did occasionally for the family, she could only cope with doing one or two at a time. She could stand for about ten to twenty minutes before having to lie or sit down. She felt that she could not cope with hairdressing on any regular basis.

35. In Dr Saboisky's opinion, the plaintiff, as a result of the motor car accident, developed lower back pain. He could find no organic reason for the continuance of the pain. She did not have a serious clinical depression nor was there sufficient evidence of a post traumatic stress disorder. He did feel however that her pain perception might be heavily influenced by psychological factors, or in other words, some form of functional overlay, the causes of which were not apparent during his interview.

36. In summary, he thought that her chronic pain, unless there was evidence to the contrary, was due to a conversion disorder. The basis of his opinion about her capacity to work rested purely upon what the plaintiff told him. He could detect no evidence of conscious exaggeration.

37. During June of 1991 an inquiry agent made some video tape recordings of the plaintiff, on one occasion for about 37 minutes and on the other for about 2 minutes. In September 1991 two further episodes were recorded, each of about 7 minutes. The longer episode was completely unremarkable. On the one hand I could not detect anywhere any indication that she was suffering any discomfort or restriction of movement. She was able to bend freely and pick up her children and put them into their car seats, movements which would have placed some strain on her lower back. There is, in that segment of the video tape, nothing which tends to corroborate her complaints, but neither is there any activity which to my mind, contradicted any of them. The overall impression was one of a woman enjoying a quiet and affectionate outing with her husband and children.

38. In one of the later short episodes she is shown exerting considerable effort as she pushed two children in the one stroller up a fairly steep ramp at a shopping centre. She exhibited no sign or pain or distress afterwards.

39. But it is to be noted that the doctors do not record any restriction of movement on examination. Her complaint is rather that pain comes on after standing or being in one position for longer periods.

40. On 2 and 3 October 1991 the plaintiff underwent an extensive multi-disciplinary functional and vocational assessment at the AAC Assessability Centre. The assessment involved investigations by a consultant psychologist and a physiotherapist, both with rehabilitation experience, and Dr McCarthy, a specialist in rehabilitation medicine. None of those experts were required to attend for cross-examination.

41. I think it is quite likely that when her physical capacities were being tested, the plaintiff was not doing her best to demonstrate her full capacity.

42. Dr McCarthy's summary was that the plaintiff has a chronic musculo-ligamentous strain of her lower back. There is no concomitant neurological deficit, her condition is stable.

43. On the whole of the evidence, I think that that is a fair summary. Dr McCarthy's overall impression was that she could resume her pre-injury occupation of hairdresser and she was assessed as being capable of performing a number of other jobs. She had the intellectual capacity to be retrained for a number of other occupations.

44. The defendant called a Mrs Stewart who has been a hairdresser for 28 years and has conducted salons of her own. As she described the occupation, it would be possible for a person to work as a hairdresser without needing to stand continuously for long periods. She also gave evidence that there is a demand for part time hairdressing employees. It was quite clear also from her evidence that the occupation places strain upon the back.

45. On reviewing the whole of that evidence, I am satisfied that on 27 September 1986 the plaintiff was involved in a moderately severe accident.

46. In addition to the blow on the head which did not lead to unconsciousness, she sustained the usual seat belt bruising and cervical strain. The symptoms of those cleared up over the succeeding few months. She also sustained musculo-ligamentous injury in the region of the lower back.

47. Despite the suggestions of Dr Robson and Dr Cassar I am not persuaded that there was any disc damage or nerve root involvement. None of the objective tests demonstrated it, I do not think her complaints were really of sciatic pain in the left leg, and there is the opinion of Dr Andrews, who is a relevant specialist, to the contrary. He was not cross-examined. Dr Hislop noted tenderness from T12 to L2 when he first saw her, and even during pregnancy it went only to L4/L5. There were no symptoms at L5/S1 that he noted.

48. For some reason the pain and discomfort that she suffered in the lower back persisted for much longer, and was more severe than might ordinarily have been expected.

49. None of the doctors really gave an explanation of the mechanism leading to that persistence that was completely satisfactory. I am satisfied that the plaintiff was not deliberately exaggerating her complaints. There may well have been some type of soft tissue injury which is simply not observable by any of the tests that she underwent. There may well have been some emotional overlay, arising out of the persistence of the symptoms and the conflicting medical opinions. But I am satisfied that she genuinely has continued and will continue to suffer pain in her lower back when she remains in any position or undertakes any vigorous activity for more than a short time.

50. That injury and the continuing disability have undoubtedly put an end to her sporting activities, at which she excelled and in which she took a great deal of pleasure.

51. Counsel for the defendant submitted that she was fit to return to full time hairdressing by early in 1987. I do not agree with that submission.

52. Dr Jolley had felt some diffidence about continuing to certify her unfitness, but I think it likely that he felt that he needed confirmation from a consultant before doing so, rather than that he had formed a firm view that she was fit.

53. Dr Andrews thought she should try to return to work by about the end of June 1987. Again, he was not cross-examined about that, and it is not clear whether he meant full time or part time work.

54. But again, the precise issue is not whether, as a matter of objective physiology, she was physically capable, but whether she was acting reasonably in not returning to work.

55. She had transferred to Dr Hislop in May 1987. He felt that acupuncture was appropriate. That did not help. By 2 September 1987 he felt moved to refer her to Dr Cassar's pain management clinic. Dr Cassar embarked on a course of treatment.

56. I am not persuaded that Dr Cassar's opinion about nerve root irritations is more probably correct than not. But in the absence of a positive finding that the plaintiff was being deliberately deceptive, his impression and his treatment helps to indicate to me that she was not acting unreasonably in not returning to full time work at that time.

57. In November 1987 Dr Cassar was assessing her lower back incapacity as 30%, and he contemplated review in 4 to 6 months time. Meanwhile, she received medication from Dr Hislop in June, was advised next in August, and received what Dr Hislop called "counselling" in September 1987 and on 6 occasions in 1988. If she was not being deceptive, (and I am satisfied she was not) and her doctor was continuing to certify her unfitness, I do not think she was unreasonable in continuing to put off a return to work.

58. She stated in evidence that when she married she intended to work for about five years and then start a family. The accident having happened, she decided to get on with life and have children. The first was born in April 1989. I do not find that evidence sufficient to persuade me that she certainly would in fact have worked for those five years, and that she should be compensated accordingly. I think it is quite on the cards that she might well have become pregnant when she did in any event.

59. Again, I am not persuaded that, but for the accident, she would certainly have returned to the workforce before now, considering the ages of the children. It is possible that she might have, but I would put it no higher.

60. Weighing up those possibilities and contingencies, I think justice would be done between the parties by my awarding compensation for past loss of income on the basis that, as a result of the accident, she was unable to work, but would otherwise have done so, to January 1989, which is about when she might well have ceased work because of her pregnancy with her first child. I do not think she would have returned to work between the birth of her first child and now.

61. The plaintiff was nearing the end of her apprenticeship when the accident happened. There was no criticism made of the details set out in the calculations based on the relevant award attached to Exhibit D. To 7 september 1988 the figures shown there for nett loss total $25,046.76. A further 21 weeks at $259.81 totals $5,456.01. I am not dealing with a closed period which can be fixed with any accuracy, and in the light of the above findings I think that an award of $32,000 for past economic loss is appropriate.

62. For the future, I note that the doctors who have seen her over time agree that her condition has not changed substantially. It has not improved, but it is unlikely to get any better.

63. I do not think that it therefore follows that she should be assessed as having lost all income earning capacity.

64. Whether consciously or unconsciously, and I think the latter, she seems to me to take too dismal a view of her ability to work as a hairdresser.

65. In recent times she has not really tried it, being happily occupied with the children. There is no actual restriction of movement. Pain would arise after prolonged standing or activity. Opportunities are probably open to her for part time work. As Mrs Stewart's evidence shows, back pain does not completely disable from hairdressing a person who really wants to carry on that occupation. On the other hand her evidence confirms that the plaintiff is reasonable in expecting that a return to work would have caused her some pain.

66. A present comparable earning capacity is $275 a week nett. The present value of that amount at 3% for 35 years is of the order of $312,000. Such a sum, or anything of that order, even discounted for contingencies, is to my mind far outside the realm of a reasonable assessment. I agree with the submission of counsel for the defendant that the assessment should be a matter of intuitive assessment rather than of calculation.

67. She is not quite 26 years old, so that a relatively long period is involved in measuring any future loss of capacity.

68. Having started a family, when would she have returned to work in any event? She is happily married and obviously enjoys her life with her children. Her husband is in secure employment, and there is no suggestion of economic hardship. Though not planning to have other children at the moment, she and her husband had discussed having four. They may well have done so, indeed, they may well do so. My assessment is that it would probably have been some years from now before she would have returned to work, but it is impossible to identify any particular period with any degree of accuracy.

69. Will she ever go back to work? She said in evidence she does not intend to do so this year, because her back is still sore. She did not know about next year, and agreed that she is not going to spend the rest of her life not doing any work. The evidence from the AAC that there are other things she could do besides hairdressing was not challenged by cross-examination, nor controverted by other evidence, though I think it unlikely she would obtain clerical employment.

70. As a matter of intuitive judgment I think that an award of $50,000 for impairment to her future income earning capacity does justice between the parties.

71. I have considered the future anxiously before approaching the question of general damages, because I think that it is proper to take into account the extent to which she has lost the capacity to enjoy her sporting activities, and even if she does return to work, the enjoyment that she would have derived from hairdressing which she will not now have because of pain.

72. In that light, even though there was only soft tissue damage, and there was no actual restriction of movement and no neurological deficit, I think that an award of $30,000 for general damages is appropriate. I would attribute $10,000 of that to the future.

73. This was the first case argued before me in which submissions were made to me in proper form about the method of assessing interest on past non-economic loss, and I was referred to the decisions of the NSW Court of Appeal in Bennett v Jones 1977 2 NSWLR 355 and Metropolitan Meat Industry Board v Williams (NSW Court of Appeal, 22/10/91 Unreported).

74. I am relieved of the burden of dissecting those decisions by two decisions of the Full Court of this Court, namely Hallett v Schoevers (ACT Supreme Court, 5/3/92, unreported) and Protonotarias v Zapaznik (ACT Supreme Court, 5/3/92, unreported).

75. In this, and in future decisions where the question is relevant, I propose respectfully to adopt and apply the approach adumbrated by Higgins J. in Hallett, where he said at p19,

"I would prefer for myself, to reduce or average the amount
upon which the interest rate is applicable for the past to
take account of the accrual factor. That approach has the
advantage of obliging the Court to consider whether the
accrual of the loss has predominated at some discrete
period between injury and verdict. If it has, it may be just
that the sum awarded be more or less than 2% on the whole
pre-verdict sum. It should still be a result of the application
of the 4% rate to past loss. That was the approach
recommended in Bennett v Jones (supra) and it seems to me
to be an approach entirely consistent with MBP (SA) Pty. Ltd
v Gogic (Supra)."

76. There was not any marked accrual of pain and suffering at any discrete period between injury and now, and I arrive at the figure for damages by applying a rate of 2% on $20,000 for 5 and a half years. That period is not exact, but then neither is the attribution of $20,000 to the past, and the rounded sum of $2,200 seems to be appropriate.

77. The out of pocket expenses are agreed at $7,209.90. The plaintiff has been receiving workers' compensation so that there will be no interest awarded on past economic loss. The Fox v Wood component is agreed at $8,432.60.

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

General Damages $30,000.00
Interest 2,200.00
Past Economic Loss 32,000.00
Fox v Wood 8,432.60
Out of pocket expenses 7,209.90
Future economic loss 50,000.00
$129.842.50

79. I direct the entry of judgment for the plaintiff in the sum of $129,842.50.