Tania Leanne Marmont v Gary John Honeysett [1992] ACTSC 46 (13 May 1992)

SUPREME COURT OF THE ACT

TANIA LEANNE MARMONT v. GARY JOHN HONEYSETT
No. SC 83 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 - Whiplash Injury - No Issue of Principle.

HEARING

CANBERRA
13:5:1992

ORDER

Judgment be entered for the plaintiff in the sum of $29,852.30.

DECISION

This is the assessment of damages for personal injury received by the plaintiff in a motor vehicle accident on 20 March 1987.

2. The plaintiff had been educated to year 10 and obtained the School Certificate. She then became an apprenticed hairdresser, attending the Reid Tafe as a part time student during her apprenticeship. The accident happened in March 1987, and she completed her apprenticeship at the end of 1987.

3. On 20 March in that year she was driving a vehicle which she had stopped in obedience to traffic lights. She was wearing a seat belt. The defendant's vehicle collided with the rear of it and pushed it forward about twenty feet. It was a severe impact, the boot being pushed in till it was near the back seat. The vehicle was written off.

4. She was severely shaken up and went home. Her neck began to hurt severely within an hour. The accident happened on a Friday and the pain increased over the weekend.

5. On 23 March 1987 she consulted Dr Gow, her general practitioner. On examination he found that she had a reduced range of movement in all directions of her cervical spine. She was tender to the neck, both shoulders and arms. There were no neurological signs. Dr Gow diagnosed a musculo-ligamentous strain of the cervical spine and a bruised right arm. He recommended rest, heat packs and massage and issued a certificate for her absence from work for three days. She rested for the three days and then consulted Dr Gow again on 25 March, when she was complaining of pain in her lower thoracic area and tingling in her right arm. Dr Gow found that she was tender to the spinous process of T10 and also had limited range of movement of her thoracic spine. He felt that this area had also suffered a musculo-ligamentous strain. He referred her for physiotherapy, but did not order x-rays or any other investigations.

6. She returned to work and underwent physiotherapy about 11 times over the next month or so. At work she found that she was able to do her job, but she was slowed down by the neck pain and the pain in her right arm. She dealt with the pain by taking Panadol. On 21 May 1987 she saw Dr Gow's partner, Dr Hislop, complaining still of neck soreness.

7. Her solicitors asked Dr Newcombe, Neurosurgeon, for a report in November 1987. There was still pain in the neck radiating towards the shoulders and into the interscapular area, and she had some frontal headache. On examination Dr Newcombe found a restriction of lateral flexion of the neck of 30 degrees to each side.

8. Dr Newcombe diagnosed a ligamentous strain, but suspected also the possibility of an intervertebral disc disruption. He felt that it was still too early to give an accurate long term prognosis and recommended review after six to twelve months.

9. Dr Hislop also noted the headaches when she saw him in May 1988. Dr Gow saw her again in November 1988. She was still complaining of headaches, and lateral flexion of her cervical spine was limited because of pain. He ordered x-rays of her cervical spine, which did not disclose any bony abnormality. Dr Gow also considered the possibility of an intervertebral disc lesion, because of the continuing symptoms of pain. He was however, concerned that they might have been exacerbated to some extent by some stress or tension that she was under at the time, about which there was no real evidence.

10. Dr Newcombe examined her again on 10 January 1989. She claimed that there had been no real improvement, and was still feeling neck pain with generalised headache, which Panadol tended to relieve. She was continuing to work full time as a hairdresser but found that some activities tended to give her pain in the arm. There was a full range of neck movement, but still some tenderness in the sub-occipital region.

11. The plaintiff married in March of 1989 and continued to work for some months. In September of 1989, although she wanted to work longer, her doctor advised her to give it up as she was then about six months pregnant. Her first son was born on 5 December 1989.

12. She returned to part time work when the baby was about six weeks old.

13. On 11 January 1990 she was examined by Dr Andrews, Neurologist, for the defendant. She still had pain in the upper cervical region with associated frontal headaches, which were recurring by now only two or three times a week. There was no nerve root symptomatology. Dr Andrews found good neck movement but still some localised tenderness and restriction at C3/4 which suggested to him some facet joint problems at that level. She reported that she was gradually improving.

14. Dr Newcombe examined her again on 5 September 1990. Dr Newcombe's summary was that while the neck pain did not stop her from carrying out her activities, it did slow the rate at which she was able to work, and she was not able to do as much as she could before her accident. She still had neck pain and intermittent headaches, but there was a good range of neck movement on examination and no cervical tenderness. He considered that her general condition was stable following her injury, leaving her some residual pain and loss of efficiency.

15. She gave up work in October 1990, she says on account of the pain. Her second child was born on 1 July 1991.

16. Dr Andrews, in May 1991, described her symptoms as mild.

17. Professor Jones examined her on 24 July 1991. He found her neck movements within a full range in lateral rotation and in lateral bending and extension, but forward flexion was slightly reduced. He summarised the position as follows:
"Has suffered soft tissue injuries to her neck in an alleged motor

vehicle accident in March of 1987, with mild continuing sequelae
which have gradually diminished. However, she is occasionally
troubled by tension headache, particularly affecting the forehead and
occasional discomfort in the back of her neck. I would accept that
she has this mild discomfort."

18. In January 1992, Dr Newcombe summarised the position as follows:

"I consider that she continues to have neck pain which has a
musculo-ligamentous basis following the injury of March 1987. Her
general condition is stable and further treatment is not planned.
There is continuing occupational incapacity for full time work, but
part time work as a hairdresser could be possible if she did not have
her family commitments. The situation was much the same as at the
time when I saw her last on 05.09.90. I have perused the reports by
Dr Andrews and R.F. Jones. These reports seems consistent with the
views I have expressed."

19. I agree with that summary. There does not seem to be any significant conflict in the medical evidence.

20. Because of her family commitments it is not possible to make an accurate calculation of the amount that she would have earned had the accident not happened. I am also not satisfied that there is any easily calculated amount by which her future income earning capacity has been decreased.

21. I agree with the submissions of Counsel that it would be appropriate to make a moderate allowance to take account of a modest sum that she may well have lost in the past and an even lesser sum that she might lose in the future. In view of the nature of that allowance it would not be appropriate to award interest on any part of it. I think that an award of $10,000 would do justice between the parties.

22. In summary the plaintiff suffered a violent accident which left her with a moderately severe whiplash type injury from which she has substantially recovered, but which still leaves some residual pain and restriction of activities.

23. I would award the sum of $18,000 for general damages, of which $3,000 would relate to the future. In lieu of interest I would award the sum of $1,500 on the past component of that sum. The out of pocket expenses were agreed at $352.30.

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

Pain and Suffering $18,000.00
Interest $ 1,500.00
Past and Future Economic Loss $10,000.00
Out of pocket expenses $ 352.30
TOTAL $29,852.30

25. I direct the entry of judgment for the plaintiff in the sum of $29,852.30.