Sarah Louise Griffiths v Kieran Noonan [1992] ACTSC 40 (30 April 1992)

SUPREME COURT OF THE ACT

SARAH LOUISE GRIFFITHS v. KIERAN NOONAN
No. SC 88 of 1988
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
30:4:1992

ORDER

Judgment be entered for the plaintiff in the sum of $39,281.45.

DECISION

This is the assessment of damages for personal injury received by the plaintiff in a motor vehicle accident on 14 November 1987.

2. The plaintiff is 22 years of age. At the time of the accident she was a student in her final year at Phillip College. She was in good health.

3. On the morning of Saturday 14 November 1987 she was driving a vehicle towards Woden in Hindmarsh Drive. She came to a stop at about the intersection with Tuggeranong Parkway, and after she had been stationary for a little time she looked in her rear vision mirror to see that a Miniskip truck coming from behind was not going to stop. That vehicle struck her car from behind, forcing it into the vehicle which had stopped in front of her. She was wearing a seat belt. She was thrown violently forwards and then backwards and as she hit the seat coming back the seat mountings broke. She did not lose consciousness. She was shocked and immediately began to feel an ache in her lower back. She climbed out of the windows of the car and began to feel a burning pain down the back of her neck. She also had some pain along the line of the seat belt.

4. Her brother came to the scene of the accident and took her to Woden Valley Hospital where she was observed and x-rays taken. She was fitted with a cervical collar and given some pain killers and allowed to leave after about three or four hours. She was taken home.

5. By then she had developed a severe headache and her neck and back were aching.

6. That night she had trouble sleeping.

7. On the following Monday she attended her general practitioner Dr Hislop. He found tenderness over the sterno-mastoid muscles and the extensor muscles of the cervical region. Neck movements were very restricted. Neurological examination was normal. He diagnosed a whiplash injury, advised her to continue wearing the collar, and to rest as much as possible, and prescribed physiotherapy.

8. She attended the physiotherapist but was in so much pain that there was not much that could be done for her. Dr Griffiths noted that her condition had not much improved on 23 November. She had been unable to sleep properly. She was able to move the neck through a full range of movement, but the movement was painful. He advised her to continue with the physiotherapy and prescribed Voltaren and anti-inflammatory medication.

9. Her evidence is that she was suffering nightmares, reliving the accident. This, combined with the recurring pain in the neck, was making it very difficult for her to sleep.

10. Dr Hislop noted that her condition had improved somewhat by 7 December. The pain was not as severe as before and when it did flare up it settled with rest. He advised her to continue with the physiotherapy, Voltaren and analgesics.

11. Her solicitors referred her to Dr Keiller, who saw her on 8 January 1988. She was improving slowly. Neck movements were still restricted and she was continuing the physiotherapy. The headaches had subsided. She was sleeping better. Dr Keiller's opinion was that she had sustained a typical rear impact injury with a forced hypo-extension stress causing trauma to the supporting muscles and ligaments of her neck.

12. Although his prognosis was optimistic he felt that her condition was not yet stable and suggested that assessment be delayed possibly for another year.

13. Over the next six months she continued to consult Dr Hislop on about a monthly basis. He noted that her condition at each of the consultations varied, but due to her injuries she continued to be unfit for work. She had reported to him episodes of depression when she experienced sleep disturbance and was still very anxious when travelling in a motor car.

14. She continued with the physiotherapy and gradually improved so that she became able to perform many household duties, which sometimes made her neck more painful.

15. On 14 December 1988 she travelled to Sydney where she was examined for the defendant by Drs Vanderfield, Jones and Dyball.

16. The history that she gave to those doctors was broadly consistent with her evidence and with what she had been reporting to Dr Hislop. One additional matter was noted, which she also referred to in her evidence, which was that with the onset of the colder weather during the previous winter, her condition had deteriorated. She was still having physiotherapy once a week, but Dr Vanderfield noted that she had improved and intended to cease physiotherapy in the following month. Her complaints were of soreness in the neck after a lot of activities. She still got a few headaches. She was taking Panadeine about twice a week. Her neck got sore after driving a car for long distances or after housework activities. She had a full range of movement, though some soreness at the extremes of movement. Dr Vanderfield confirmed the diagnosis of soft tissue injury. He thought that by then she was fit for employment in a suitable occupation.

17. Professor Jones also thought that she was by then, fit for entry into her chosen vocational goal of becoming a Horticulturist. He accepted that she had discomfort in her neck and shoulders as she claimed, and that this was still an intermittent problem, but he thought that it was not so serious as to prevent her from being independent in her activities.

18. When she saw Dr Dyball she was at a loss to understand why she was referred to a psychiatrist. His summary was,
"For a brief period of a matter of three months following

the accident in question the patient suffered a minor post
traumatic stress reaction with nightmares, anxiety driving
and a general degree of anxiety. Without treatment this
settled and she has not been left with any on going
psychiatric disturbance. There has been for years a minor
degree of social anxiety that is within normal limits."

19. Five days later, on 19 December 1988, she saw Dr Hislop who noted that her neck was quite painful and stiff as a result of the trip to Sydney. Her neck slowly improved and Dr Hislop notes that by the end of January 1989 she began to look for part time work. Her neck injuries prevented her from looking for full time work and she was unable to look at any that required lifting.

20. Dr Keiller saw her again on 24 May 1989. Again, she referred to the increase in her symptoms that had come on with the cold weather during the previous winter. She had by then obtained a part time job as a receptionist and was not receiving any current treatment. Dr Keiller described her symptoms in general as having been reduced to nuisance value level, which interfered with her comfort and sense of well-being, but which did not amount to any measurable impairment of function.

21. He thought that her symptoms were genuine and would continue for some time yet.

22. The following day on 25 May 1989 she was assessed by Canberra Occupational Therapy Services. The Occupational Therapist noted that there was some restriction on her physical ability, but suggested that with a fitness and strengthening program she should be able to carry out horticultural work.

23. Her last attendance on Dr Hislop that is in evidence took place on 13 June 1989. Her neck pain had flared up and she was experiencing headaches. This seemed to correspond with a change to cold weather. He felt that her condition had been aggravated by the weather and prescribed Voltaren and referred her back to the physiotherapist. She was still able to work part time despite the symptoms. He thought that her prognosis was excellent.

24. Dr Keiller's opinion on 12 November 1990 was that she had made a full recovery and her prognosis for remaining symptom-free was excellent.

25. At the time of the accident the plaintiff was in her final term at school. She missed some examinations and obtained her Higher School Certificate on the basis of assessment of her previous work.

26. She had been doing some part time work, cleaning, babysitting and gardening. She was earning about $20.00 for three hours of work for each of three people, including her mother.

27. Her mother was, at the time, working as a teacher. For a few months when her daughter was unable to do the housework she did it herself and later employed a cleaner. The plaintiff had to be assisted in dressing and washing by her mother for some little while after the accident. I am not persuaded that the type of assistance that her mother gave her was of a kind that it would have been reasonable to pay for, and I am not prepared to hold that there should be any award on the principles set out in Griffiths v Kerkemeyer.

28. Before the accident she had intended, if possible, to obtain employment and undergo an apprenticeship in horticulture. The accident has caused that project at least to be deferred, but it seems clear to me that if she wished to do so, she is now capable of undertaking that type of work.

29. I am not satisfied that she has suffered any loss of income as a result of not being able to do so. The money that she has earned in the occupation that she obtained was at least as much as she would have received while she was doing an apprenticeship.

30. In summary, the plaintiff suffered in the accident a moderately severe whiplash which substantially abated over the following three years, though with some setbacks during the winter periods. There are minimal residual effects.

31. For her pain and suffering I would award the sum of $15,000.00, all of which relates to the past.

32. She has not suffered her discomfort evenly throughout the period between the date of the accident and now, the bulk of it being concentrated during the first half of that period. In lieu of interest therefore, I award a lump sum of $1,500.00.

33. The out of pocket expenses have been agreed at $2,781.45.

34. The amounts claimed for loss of income, as set out in the particulars, total $26,420.00. I think it is appropriate to discount that figure substantially on account of the chance that she may not have obtained employment as soon as she left school at the same rate that she eventually earned working for the Family Planning Association. I do regard the sums that she was receiving from her mother for working at home as being genuine income, which she otherwise could and would have earned. Adopting a broad, and, I hope, a common sense approach, I would assess her past economic loss at $20,000.00. Before she began work she was receiving social service benefits of one kind or another and in the light of that and the amounts involved I do not think it appropriate to award interest on that component.

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

General Damages $15,000.00
Interest $ 1,500.00
Out of pocket expenses $ 2,781.45
Economic Loss $20,000.00
TOTAL $39,281.45

36. I direct the entry of judgment for the plaintiff in the sum of $39,281.45.