Sharyn Lesley Farrugia v Arend Bleyerveen [1992] ACTSC 38 (29 April 1992)

SUPREME COURT OF THE ACT

SHARYN LESLEY FARRUGIA v. AREND BLEYERVEEN
No. SC 463 of 1989
Damages

COURT

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

CATCHWORDS

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

HEARING

CANBERRA
29:4:1992

ORDER

Judgment be entered for the plaintiff in the sum of $28,473.84.

DECISION

This is the assessment of damages for personal injury received by the plaintiff in a motor vehicle accident on 19 June 1989.

2. The plaintiff is a married woman now aged 41, who was therefore aged 39 at the time of the accident. She has three children. She left school at the age of 15 after completing 3rd year at high school and in 1965 obtained a position as a clerical assistant with the Department of Customs and Excise. She married in June 1968 and in 1969 left the workforce to raise her children.

3. In 1984, when her eldest son was about 16, she joined the Australian Bureau of Statistics, again as a clerical assistant. She has continued in that occupation and at the time of the accident in June 1989 she was an Administrative Service Officer grade 1.

4. About six months before the accident she had suffered from a stiff neck, for which she received physiotherapy treatment, and which lasted for less than a week. She also disclosed that when she was 19 she was hit in the middle of her back by a door, but that also caused no continuing problems. At the time of the accident she was in good health, and engaging regularly in aerobics.

5. On 19 June 1989 she was driving home from work, wearing a seat belt. She stopped behind a number of other vehicles at a roundabout, and while she was stationary a vehicle driven by the defendant collided with the rear of her vehicle. The seat hit her in the back, her back went forward, and her head and neck went over the steering wheel and snapped back. She did not collide with any part of the inside of the car and did not lose consciousness but she immediately noticed that she had blurred vision. She also felt tenderness in the throat and back.

6. She obtained particulars from the defendant, drove to the Police station to report the accident, and then drove home.

7. The next morning when she woke she was feeling shaky, her throat was sore and her back was tender. She arranged for her parents to come to take her to see her general practitioner, Dr Jones.

8. Dr Jones noted a restricted range of movement of the shoulders and lumbar spine. There was tenderness of the back muscles. He prescribed anti-inflammatory medication, rest and physiotherapy. He also prescribed a neck brace.

9. She went to the physiotherapist, and took about two weeks off from work. When she returned to work she could not perform all her duties. She was unable to pick up bundles of computer printout and found that her neck ached if she spent more than 10 minutes at a time at the keyboard of the computer. Arrangements were made for her to work limited hours.

10. Dr Jones noted in February 1990 that her course had been one of slow improvement and she had been able to perform only limited hours of work each day because of pain and restriction of movement. She was then working six hours a day, and he expected that she would be able to return to full time work on 19 February 1990. In his opinion the plaintiff had suffered from significant strains to the muscles and ligaments of her cervical, thoracic and lumbar spine, which injuries had caused considerable pain and restriction of movement and reduction of her capacity to work. In his opinion there was nothing to suggest a disc injury. In fact she returned to full time work in about the first week of March 1990.

11. In her evidence she said that she was not able to return to her pre-accident position because she did not think that she would be able to cope full time. She transferred to Office Operations where the duties allowed her to sit, stand and walk around. It took time before she was able to lift and bend down.

12. Her solicitors arranged for her to be examined by Dr Keiller, who saw her on 27 September 1989.

13. She was still complaining of pain, but slowly improving. She described her headaches as constant and had difficulty in concentration. She appeared to Dr Keiller to be depressed by the accident. He found no neurological deficit. He arranged for x-rays to be taken, which showed no significant abnormalities. Dr Keiller commented on the degree of force that was involved in the accident, as demonstrated by the pain in the anterior muscles due to some muscle tearing or stretch, and the difficulty that she had in swallowing.

14. Dr Keiller saw her again on 6 April 1990. She was then emotionally better, and told him that the main improvement in her symptoms had occurred during the previous month. This seems to have followed from her changing to a less stressful job. On examination Dr Keiller found that there was still some limitation of extension, and other movements, although full, were stiff towards the end of the normal range, and tender at the extremes if pushed. The lower spine was fully mobile and pain free. He commented that she had learned to understand her condition and to cope well in her new environment which had diminished her headaches.

15. Dr Keiller saw her again on 1 May 1991. She told him that she had improved since he had last seen her and was also feeling much better emotionally. She still had some neck and low back pain, which was described as mainly a dull ache but on occasions becoming more severe. She was still taking analgesics when necessary.

16. Before the accident she had enjoyed aerobics and had not been able to resume that activity for some time. By the time she saw Dr Keiller in May 1991 she had resumed aerobics but in a limited form. She still is not able to perform all aerobic movements.

17. Dr Keiller summarised her condition as follows,
"Her continuing nuisance value symptoms will go on for

the foreseeable future and there may be brief flares of more
acute discomfort associated with increased or injudicious
activity or changes in the weather. However they would
respond to simple therapeutic measures and she should
rapidly return to her previous level.
The natural history is one of eventual further improvement
with time although it is unlikely that there will be
complete resolution to a formerly asymptomatic and fully
mobile state."

18. He also stated,

"I do not expect any future deterioration or late
complications. Although there will be some contribution in
the very long term to the degenerative changes of ageing.
Should she get symptoms increasing later in life from that
cause, then the accident must be considered as having played
some part in the aetiology."

19. On 17 June 1991 Dr Andrews, Consultant Neurologist, examined her. In effect he agreed with Dr Keiller.

20. On 9 August 1991 Dr Davis examined her for the defendant. She gave him a history which was consistent with her evidence and the other medical reports. She was complaining of intermittent lower back discomfort which she described as dull, aching and varying in intensity and intermittent cervical pain mainly in the occipito-nuchal area. Although in his opinion she was not suffering any ongoing organic disability, he had no doubt that the symptoms were genuine and that typically such symptoms of whiplash injury may last upwards of one to five years after such an accident.

21. For some time, particularly before she was able to return to work, she was not able to do all her household tasks, which were taken over by her husband and children. However I am not satisfied that the services that they provided were such as it would have been reasonable to pay for, or that they were anything other than a normal and sensible rearrangement of household activities. I do not propose to award any damages on the basis of the principles expounded in Griffiths v Kerkemeyer.

22. In summary, in the accident the main injury that the plaintiff suffered was a moderately severe whiplash injury which fortunately has largely healed over a period of about 3 years, leaving some symptoms. I accept the more detailed description given by Dr Keiller in his reports.

23. For her pain and suffering I would award $20,000, of which only $3,000 would relate to the future.

24. Interest on the past component at 4%, but averaged evenly over the whole of the time since the accident, amounts in round figures to $1,000.

25. Her nett salary was made up, and her medical expenses were paid, by Comcare. Exhibit B contains a letter from Comcare showing that the total of medical and incapacity payments was $7,473.84. There will of course, be no interest awarded on that amount. A claim was set out in the particulars for future economic loss based upon a deprivation of promotion prospects at her employment. The evidence does not support any such claim. A claim is also made for future out of pocket expenses. Although it is clear on the evidence that she will, from time to time, find it necessary to purchase some medication, and occasionally to visit her doctor, the evidence does not allow this claim to be quantified, and I have therefore taken it into account in a general way in the award of general damages.

26. At the hearing it was agreed that all that she will be required to repay to Comcare is her nett pay, so that no award is now sought on the basis of Fox v Wood.

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

Pain and Suffering $20,000.00
Interest $ 1,000.00
Loss of Wages and
Medical Expenses $7,473.84
TOTAL $28,473.84

28. I direct the entry of judgment for the plaintiff in the sum of $28,473.84.