Janice Anne Bawden v Mark Andrew Quirk [1992] ACTSC 4 (28 January 1992)

SUPREME COURT OF THE ACT

JANICE ANNE BAWDEN v. MARK ANDREW QUIRK
S.C. No. 1781 of 1988
Damages - Practice and Procedure

COURT

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

CATCHWORDS

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

Practice and Procedure - Interest - Non Pecuniary Loss - Discretion - Principles.

Australian Capital Territory Supreme Court Act 1933 s53A

MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 65 ALJR 203

Cullen v Trappel [1980] HCA 10; (1980) 146 CLR 1

HEARING

CANBERRA
28:1:1992

ORDER

Judgment be entered for the plaintiff in the sum of $375,192.00.

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries received by the plaintiff in a motor car accident on 14 June 1984. Although liability was not admitted it was not seriously in issue and no cross-examination was directed to it.

2. The plaintiff was born on 12 October 1941 and after completing a business college course she worked for a short time as a secretary before marrying in 1958.

3. In 1964, when her youngest child was able to go to pre-school, she recommenced part-time work.

4. About 1978 she separated from her husband and began to live with Mr Alfred Brauns, with whom she is still living.

5. Until about the middle of 1982 she was in good health. On 7 June 1982 she presented to Dr Gytis Danta with headache and left sided numbness. He commenced investigations but the cause was not identified for some time. In September 1982 she was involved in a minor motor car accident when the driver of the car in which she was travelling swerved to avoid a dog. She injured the inside of her left knee and had a minor whiplash injury to the neck. By the time she saw Dr Danta on 1 October 1982 the pain in the neck had largely settled but the fluctuating symptoms of numbness, especially on the left side, were continuing. His investigations continued, until in May 1983 she was seen in Sydney by Professor McLeod and his diagnosis of Multiple Sclerosis was confirmed.

6. Dr Danta continued to supervise her treatment, counselling and rehabilitation and he saw her regularly over the years until August 1990.

7. Dr Danta gave evidence that while the disease of Multiple Sclerosis is not predictable in its course he has now seen her for almost ten years, she is not disabled by it, she seems to have a mild form of the disease, and on the balance of probabilities it would not have prevented her from working until normal retirement age.

8. Following a rehabilitation course at Woden Valley Hospital she obtained a position as a Clerical Assistant with the Department of Aviation. She was successful at the public service examination and was appointed permanently to a substantive position as a clerical assistant grade 1. In 1983 she was promoted to acting CA4 and in 1984 she began studies to qualify for entry to the University in order to further her career in the public service. Those studies were successful and she applied for entry to the Australian National University to study Science and Law. The University offered her a place in the Science Faculty.

9. She resumed active leisure activities such as camping and water skiing. She said that the multiple sclerosis did not affect her mobility, the only symptom being a numbness on the left side.

10. On 14 June 1984 she was driving a Ford Cortina sedan on her way to work. She was wearing a seat belt. She was travelling along Bunda Street from Northbourne Avenue and arrived at the intersection of that street with Akuna Street. At that intersection traffic in Akuna Street is controlled by stop signs. As she approached the intersection she observed that a van had stopped at the stop sign on her right. She continued slowly across the intersection, and a vehicle driven by the defendant came past the parked van and collided with the right hand side of her car towards the front. The impact swung her vehicle around and it was struck again on the right hand side just behind the driver's door. She was thrown forwards, backwards and sideways and her head collided with some part of the inside of the vehicle.

11. Her evidence about the circumstances of the accident was not challenged or contradicted, and there must therefore be judgment for the plaintiff.

12. She did not lose consciousness. She was shocked and incapable of movement. Immediately her head hurt, her neck was sore and she was shaking. A friend of her supervisor who happened upon the accident drove her home. Shortly afterwards she consulted Dr McIver, her general practitioner. She returned home and spent the rest of the day resting in bed. Her pain got much worse over the next few days. When she saw Dr McIver on 19 June her neck pain had become intense, as had her headaches. His examination revealed marked limitation of all neck movements. X-rays of the skull were normal, but those of the cervical spine showed degenerative changes at C5/6.

13. She remained off work for a few weeks and then tried to return. She found she could not cope, and took more time off. Then when she felt better she went back again.

14. Her supervisor, Mrs Newton, recorded in a Minute dated 11 December 1985 that her duties involved moving around, standing, sitting, bending, writing and carrying files. Before the accident she had performed these duties capably, displayed a responsible and keen attitude to her work, and maintained a high output.

15. About her abilities after she returned to work, Mrs Newton commented,
"It was observed that Ms Bawden suffered considerable discomfort

in working at a normal desk situation and a raised board
arrangement was made to alleviate the need for bending and for
her to work and write at eye level as far as possible."
"It was left to Ms Bawden's discretion which of her normal duties
she was to attempt. Other arrangements had to be made to cover
tasks that involved writing at a desk and bending. Although Ms
Bawden appeared very keen to remain in the work situation she was
still distressed and unable to maintain her previous workload.
Writing and working at eye level appeared to cause strain to the
arms and shoulders. Ms Bawden subsequently had several
intermittent periods off work as sick leave."

16. Her compensation records showed that she received fully paid sick leave for two months in July and August of 1984, one week in February 1985, and three and a half months from April to July of 1985. She then received statutory rate compensation from 31 July 1985.

17. About the middle of March 1985 Dr McIver referred her to Dr Chandran, Neurosurgeon. She told Dr Chandran that she had been receiving physiotherapy, her pain kept recurring and she had been using a collar, anti-inflammatory medications and tranquillisers. She was complaining of pain in the neck extending into the right shoulder blade and arm, with pins and needles in the hand. Work was aggravating the symptoms. On physical examination Dr Chandran found that the upper limbs showed no neurological deficits. There was mild tenderness in the neck with mild restriction of rotation and lateral flexion. She was tender over the right sub-occipital region.

18. In April 1985 Dr Chandran performed a discogram. He found painful disruption of the C4/5 and C5/6 level and no abnormality at C6/7. Dr Chandran advised surgical treatment. The plaintiff discussed the chances of success of an operation with Dr Danta and decided against it. Not only was there no certainty that there would be a definite improvement in her pain, she says she was told by Dr Danta that the anaesthetics and operations might affect the level of her Multiple Sclerosis.

19. In December 1985 Mrs Newton commented,

"After the last lengthy period of sick leave Ms Bawden returned
to duty on a trial basis of four hours per day, with a view of
increasing this amount gradually.
Since her return Ms Bawden has attempted a variety of routine
clerical tasks, that is filing, sorting, job applications,
attending counter and telephone enquiries and computer keyboard
work. She has still been unable to work at a normal desk or at a
raised draughting table, she has been severely restricted by her
inability to bend and she appeared to be suffering considerable
discomfort although she has been free to sit or stand and move
around at will.
Considerable effort has been made to provide help and assistance to
Ms Bawden and to provide work of a nature that she can perform
without causing her discomfort. It has not been possible to
identify other tasks for a position in another area of the
department that could provide better working arrangements.
Unfortunately, although Ms Bawden has made persistent efforts to
work and be productive her efforts combined with the department's
efforts to discover duties and workstation ergonomics to allow her
to work in comfort have been totally without success. She appears
to be continually distressed and is again absent on sick leave."

20. In January 1985 she received the offer for a place in the Faculty of Science at the Australian National University, and after discussing the matter with her doctor and a counsellor at the University, she asked for her admission to be deferred until the following year.

21. She retired from the Public Service for health reasons in March 1986.

22. Dr Danta saw her in December 1986 and commented that since her retirement she had got somewhat better and lost the tenderness in the right elbow. She was still having difficulty with tasks involving positions where the neck is bent and also with the use of the right arm such as ironing and chopping vegetables. On the whole he felt that at home with her having given up work her disability was rather slight. He thought that she was likely to continue with pain in the neck and right arm aggravated by bending the head and using the right arm, probably indefinitely.

23. In July 1987 Dr McIver referred her to Dr Corry, Rehabilitation Specialist. Dr Corry had been involved in her rehabilitation when she had first been diagnosed as suffering from Multiple Sclerosis. Her major problem at the time he saw her in 1987 was of persisting and constant headaches, but she also complained of constant aching with her neck which spread to the tops of both shoulders into the upper part of the arms, the right being worse than the left. At times the pain would spread down to her lower back. The symptoms were aggravated by anything requiring neck flexion and she complained of limitation in her ability to do normal activities around the home such as ironing or vacuuming.

24. On examination he could not find a great deal except for fairly widespread tenderness in the muscles around the base of the neck and tops of both shoulders. He arranged for her to attend a back treatment program and have some relaxation training. By October her complaints of pain were less and she had increased mobility. Her general practitioner referred her to Dr Nelson, and so Dr Corry did not arrange any further follow up. In March 1988 Dr Nelson referred her to a physiotherapist at the Sports Medicine Centre, initially because of a painful knee and right leg that prevented her from getting fit by walking. Although the treatment originally concentrated on the knee, from 15 August 1989, so far as I can read the physiotherapist's record, treatment concentrated on disability of her neck.

25. In December 1988 she was seen by Dr John Wright in Sydney, for the purposes of a report to the defendant's insurer. His opinion was that she had suffered jarring, soft tissue strain about the neck in the accident. He would have expected her complaints to cease within a couple of months. He thought that her complaints were functional, in the form of a chronic anxiety state, variable, influenced by mood, and unresponsive to treatment. He thought she was physically capable of all that she had performed originally and that she had become so within a couple of months of the alleged accident.

26. In March 1990, however, she saw Dr Danta, complaining of left-sided headache which had been continuous for two or three months. On examination she was tender over the left C2/3 facet joint. Dr Danta referred her to Dr Chandran who was not able to recommend any treatment. She also complained of the headaches when she saw Dr Corry in March 1990.

27. About the beginning of August 1990 she did a lot of desk work and also travelled to and from Queensland. She saw Dr Danta on 27 August complaining that there had been an increase in the pain in her neck and posterior thoracic region as well as in the arm. The next day she saw Dr Corry who says that she reported that her back pain had been aggravated after a car trip to Queensland a few weeks before. He noted that she was being treated with anti-inflammatory medication and this appeared to be upsetting her and she had fairly widespread pain symptoms. She was miserable and depressed and was not sleeping at all well. Dr Corry felt that depression was her major problem at that time and prescribed anti-depressant medication.

28. Counsel for the defendant commented that her complaints to those doctors within a period of 24 hours are so different as to raise a doubt about the accuracy with which she described her symptoms. Bearing in mind the respective specialties and interests of the doctors concerned, I do not find them so inconsistent as to raise any doubts in my mind.

29. In November 1990 she was examined by Professor Tracy on behalf of the defendant. Her complaints to him were of occipital headaches which may spread into the top of the head and severe neck pain which is made worse by forward bending, and is accompanied by spasms of pain which go into her shoulder blades and into both arms. Professor Tracy found her cooperative and showing no obvious signs of distress. Neck muscles and trapezia appeared to show increased tension and there was limitation in all movements of her neck, amounting to 30 degree loss of flexion, 15 degrees loss of extension, 15 degrees loss of right and left lateral bending, 40 degrees loss of right lateral rotation and 20 degrees loss of left lateral rotation. In his opinion the plaintiff had developed clinical signs of cervical osteoarthrosis which appeared to have developed as a result of the motor vehicle accident in 1984. He thought that the condition was static and permanent and that it was unlikely to improve with further therapy.

30. On 13 November 1990 however, she was seen by Dr Andrews also on behalf of the defendant. Dr Andrews found a full range of neck movement and could find no localised tenderness. He did not find that the history and his physical findings really added up. Given the history that he had obtained he was expecting to find a greater degree of physical disability. He discussed surgery with her, and his view was that if there is the moderate disability that she claims, then she was a good candidate for cervical surgery. He put the chance of an excellent result at 70 percent. I note that Dr Andrews does not go so far as to say that she does not suffer the moderate disability that she was claiming. He was not called or cross-examined so that the question whether he really would recommend surgery in the absence of disability remains unanswered.

31. At about the same time she was seen by Dr Saboisky and Dr Gupta, psychiatrists. In Dr Gupta's opinion her complaints of poor concentration, loss of memory and some degree of depression were consistent with mild to moderate ongoing pain. Dr Saboisky also thought that she had suffered from chronic neck pain, headaches and restriction in her ability to function. From an emotional point of view, she had suffered a period of significant dysphoria as a result of her limitations, but the examination did not reveal any persistent depression. He summarised the position by saying that in layman's terms the degree of disability was greater than the objective clinical signs and investigations would indicate.

32. Having read Dr Chandran's report he thought that there was a clear indication of cervical disruption at two levels which could very readily account for the plaintiff's symptoms. Such psychological problems as she had were caused by the accident, there was no significant ongoing emotional disability, and she was fit for various types of work which did not place undue demand on her neck.

33. Looking at the whole of the medical evidence, together with her evidence, I am satisfied that she has suffered the pain of which she complained and I do not agree with Dr Wright's opinion that her complaints are functional.

34. Dr McIver has been her general practitioner over the whole of the relevant period and has had the benefit of advice from specialists such as Dr Chandran, Dr Danta, Dr Corry and Dr Nelson. He last saw the plaintiff on 27 November 1990. He found her to be tender over C3/4 and C5. Her neck movements were restricted. He took into account the evidence of disc lesions at C4/5 and C5/6. In his opinion the prognosis remained guarded, there had been some deterioration in her condition and there is no prospect of future improvement. In summary he thought that she was unfit for work because of her chronic neck pain and that incapacity arose from the accident. Both Dr Danta and Dr Corry gave evidence and were cross-examined. There is certainly nothing in that evidence which conflicts with that opinion of Dr McIver and in fact, overall, I think that they both confirm it.

35. Her supervisor, Mrs Newton, also gave evidence and was cross-examined. The minute that she wrote in December 1985 was composed by her in pursuance of her duty as a Departmental supervisor. There is no reason to doubt that she described the plaintiff's attitudes and abilities before and after the accident carefully and accurately. I am satisfied that had the accident not happened the plaintiff would have been successful in her career in the public service, but it is not possible on the evidence to point to any particular promotions at any particular times. Mrs Newton's evidence about the plaintiff's abilities before and after the accident and her attempts to get back to work also confirm me in my view that her complaints are genuine.

36. In the result, the plaintiff is capable of many normal activities for short periods of time. Physically she can do work which does not involve constant bending, stooping or lifting. However, I think it is clear that if she were to attempt even normal clerical work on any full time basis, she would not be able to stand the pain. There is no evidence that there is any employment available to her which is within her capacity. It is significant that with the resources of Comcare Mrs Newton was not able to find any for her.

37. On the question of general damages I take into account the moderate severity of the accident itself. There was then fairly intense discomfort, increasing over the next few months. There was then a period where her attempts to get back to work increased the discomfort.

38. After her retirement from work she has been able to manage with more moderate and infrequent periods of discomfort. There is a possibility, no more, that she may have to undergo surgery, but I think it unlikely.

39. She has been deprived of the ability to take part in exercise and activities that she enjoyed and of the opportunity to follow and further a modest career in the public service.

40. She will always suffer intermittent pain and discomfort, and need some sort of medication. She is now aged 50.

41. For pain and suffering and loss of amenity, I award $30,000. Counsel did not take this case as the opportunity to discuss the basis on which interest should be awarded on the past component of general damages. I have read again the unanimous decision of the High Court in MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 65 ALJR 203. I note that the power to award interest given by s53A of the Australian Capital Territory Supreme Court Act 1933 gives a discretion, to be exercised in the absence of good cause to the contrary, to award interest at the rate, on such part of the award, and for such part of the period between the date of the accident and the date of judgment as the Court thinks fit, or to award a lump sum in lieu of calculated interest.

42. Despite the differences in detail between the section in that Act and the South Australian legislation, which the High Court was then dealing with, I think that the following matters of principle were laid down in that case, and I am respectfully happy to apply them.

43. They are:

1. The function of an award of interest is to compensate a
plaintiff for the loss or detriment which he or she has suffered
by being kept out of his or her money during the relevant period.
2. A plaintiff is not awarded interest because he or she has
foregone investment opportunities.
3. The Court is not required to determine the "real", as
distinct from the "nominal" rate of interest over the period in
order to fix the rate of interest.
4. The Court should make a judgment about what is a fair and
reasonable compensation to a plaintiff for being deprived of the
use of his or her money.

44. As a member of the community, and without the benefit of evidence, I am aware that over the last year the nominal rate of interest has fallen, as has the inflation rate, and the real rate of interest has probably not changed much. I do not think that those considerations matter very much.

45. Although the High Court in MBP (SA) Pty Ltd v Gogic overruled the judgment of Gibbs J. in Cullen v Trappel [1980] HCA 10; (1980) 146 CLR 1, it did so only insofar as that latter decision laid down that where interest is allowed, it should be allowed at commercial rates. There is nothing in the later decision that detracts from the force of the statement that precedes that ruling, at p 21, namely,

"The power to award interest in New South Wales is a
discretionary power, and in the proper exercise of the discretion
the judge must of course have regard to the facts of the
particular case. It may sometimes be appropriate in the
particular circumstances to dissect that part of the award which
relates to non-economic loss and to allow interest only on the
part that is awarded in respect of past loss. However, I do not
understand Fire and All Risks Insurance Co. Ltd v Callinan
((1978) CLR 427) to require that the discretion should
necessarily be exercised in that way. There is obviously a
greater difficulty in dissecting into past and future loss that
part of an award which is made in respect of pain and suffering
and loss of amenities than there is in dealing with economic
loss, and in many cases it will be unnecessary to make a
dissection in the former case. The decision in Fire and All
Risks Insurance Co. Ltd v Callinan permits a dissection to be
made in appropriate circumstances, but does not require it to be
made in all cases."

46. I find it difficult with any pretence of accuracy to dissect the award of $30,000 into past and future components. But I think that the greater part of it relates to the past.

47. I am aware of the prohibition in s53A(3)(b) against awarding interest in respect of so much of the judgment as includes compensation for loss or damage to be suffered in the future.

48. In order to mark out an appropriate area of discourse I note that 4% on $20,000 from 14 June 1984 to date is $6,101. In my judgment the sum of $6,000 is a proper compensation to the plaintiff for being deprived of the use of such part of this judgment as relates to past non economic loss. The out-of-pocket expenses are agreed at $6,892.00.

49. The plaintiff has been receiving statutory compensation from Comcare, which totalled $63,400 gross to 30 August 1991, and which I calculate as $65,383 to the date of this judgment. The Fox v Wood component totalled $20,753 at 30 August 1991, which I calculate at $21,300 to date.

50. The past loss of wages is not simple to calculate. There is in evidence an accountant's report, which proposes a figure at $133,895 to 27 August 1991. That calculation, however, was based on the salary appropriate to an ASO4 over the whole period, and Counsel for the plaintiff conceded that an amount of that order can not be supported.

51. During the period the relevant classifications have altered, from Clerical Assistant to Administrative Services Officer. Her initial permanent appointment on 20 July 1983 had been to CA1. At the time of the accident she was acting in a CA4 position, and despite the accident and its effects the processes of promotion proceeded to her promotion on 6 December 1984 to CA3. If I understand Exhibit H correctly, the CA2/3 classification changed to ASO 2 in 1988.

52. Mrs Newton thought it likely that she would by now have been promoted to ASO4 level, though at what dates and by what stages it was not possible to say. I see no reason to disagree with her opinion.

53. I think that promotion beyond that level, either in the past or in the future, is too speculative to be taken into account.

54. She received sick leave on full pay till 30 July 1985, according to one document in Exhibit J., but the last page of that document includes payments over that period as part of compensation payments, and the Fox v Wood figure includes an amount for that period also. I think it best to make it clear that I calculate the loss of earnings from the date of the accident, lest an unjust result follows from her liability to make repayment to Comcare.

55. The accountant in Exhibit K has used the actual gross salary for the period from the date of the accident to the date compensation commenced. That gave a net figure of $469 per fortnight. Assuming no promotion and no increase in rates, that would yield a net loss to date of the order of $93,800. Obviously she must be awarded a greater amount than that.

56. The accountant calculated interest at 15% on the whole loss, without taking into account receipt of compensation payments, so that the figure he derived of $225,190 is obviously not sustainable.

57. Doing the best I can, I think that a sum of $115,000 is a proper award for past loss of salary. In fact she received $65,000 in round figures in compensation. Interest at 7% on the difference, $50,000, for 7.5 years is $26,250. I would award a lump sum of $26,000 in lieu of interest on past loss of income.

58. The present gross salary of an ASO4 officer, at the top of the grade, is $31,929 a year, which is of the order of $24,312 net a year, or $467.53 a week. The present value at 3% of $467.53 for 15 years is $295,489. That marks the uppermost boundary of an award for future loss of income. The plaintiff did not give evidence that she intended to work till any particular age, and one must take into account her multiple sclerosis and problems with her knee. I think it more appropriate to operate on a ten year period, and to make a more substantial discount than a conventional 15% on account of contingencies. I award $165,000 for future loss of income.

59. A claim was made for the cost of domestic assistance. For about two years Comcare paid for about three or four hours a week for help with housework and ironing. The total sum paid by Comcare was about $3,000. I am not persuaded on the evidence that the need for it continued much beyond that period, or that the work done by her husband is or ever has been anything than an understandable rearrangement of domestic duties. Overall, I would allow the sum of $5,000 for the cost of domestic assistance.

60. The total award is made up as follows:

General Damages $30,000
Interest 6,000
out-of-pocket expenses 6,892
Fox v Wood 21,300
Past Loss of Income 115,000
Interest on loss of income 26,000
Future loss of income 165,000
Cost of domestic assistance 5,000
TOTAL $375,192

61. In a number of the elements that make up that total there is obviously room for differences of opinion, if not actual error. However, taking into account her age, the time since the accident, and the loss of amenity and job satisfaction in the future, I think that the global sum is appropriate.

62. I direct the entry of judgment for the plaintiff in the sum of $375,192 and I order the defendant to pay the plaintiff's costs.