Janet Pollock v Nominal Defendant [1992] ACTSC 78 (21 August 1992)

SUPREME COURT OF THE ACT

JANET POLLOCK v. NOMINAL DEFENDANT
S.C. No. 18 of 1991
Damages Assessment

COURT

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

CATCHWORDS

Damages assessment - Personal injury - Motor vehicle accident - Whiplash injury - Depression - No issue of principle.

HEARING

CANBERRA
21:8:1992

Counsel for the Plaintiff: G. Lunney

Instructing Solicitors: Higgins Solicitors

Counsel for the Defendant: P. R. Arden

Instructing Solicitors: Crossin Power Haslem

ORDER

The Court orders that:

1. I direct the entry of judgment for the plaintiff in the sum of $65,572.62.

2. The defendant pay the plaintiff's costs.

DECISION

This is the assessment of damages for personal injuries received by the plaintiff in a motor vehicle accident on 18 April 1989.

2. The plaintiff was born on 9 June 1966. At the time of the accident she was living with Mr R. A. Westwood, whom she has since married. She was then aged 22 and was a taxi driver by occupation. On 18 April 1989 she was driving a taxi on the Monaro Highway. At the intersection of Isabella Drive another vehicle came into the intersection at a time when she was unable to avoid a collision. Although she applied the brakes a short distance before the point of impact, her estimate was that when the collision occurred she was still travelling at between 80 and 90 kph.

3. She was wearing a seat belt but her hands were forced off the steering wheel and into the dash board and her knees went up underneath the dash board. She suffered severe pain from the seat belt which dug into her neck and shoulder and down across her waist. She did not lose consciousness in the collision. The driver and the passenger of the other vehicle were killed in the collision.

4. She was taken by ambulance to Woden Valley Hospital.

5. The hospital records disclose that she was complaining of a sore neck and headache, a sore right knee and sore left calf. There was a graze on her trunk and her pelvis was tender. X-rays were taken of her right knee and cervical spine, which did not disclose bony abnormality. Her knee was bandaged, she was prescribed Panadeine Forte and allowed to go home.

6. The next day she consulted her general practitioner Dr Reading. She was still slightly disorientated and physical examination revealed left para cervical tenderness with painful lateral neck movements. Haematomas were noted on the left breast and the left hip region and her right knee was painful in flexion and extension. He prescribed physiotherapy, Panadeine Forte and Feldene.

7. She returned to work driving a cab after about three weeks. Dr Reading noted that when he saw her on 2 May 1989 she showed symptomatic improvement. Her right knee was persistently painful, and the lower patellar region was tender. She continued to suffer pain in the forearms and intermittent neck discomfort and ache in the lower back. On 25 May Dr Reading noted that his examination was unremarkable apart from discomfort over the extensor tendons of both forearms.

8. On 19 July 1989 she was complaining to Dr Reading of frequent right sided mild to moderate headaches and some bilateral neck discomfort. Her neck movements were good and she was referred back to the physiotherapist.

9. Her headaches persisted and in October 1989 Dr Reading tried acupuncture which did not help to relieve the persistent headaches. She was having trouble with sleeping over October and November of 1989 and in December of 1989 she asked for a referral to Dr Cassar.

10. Between 10 January and 2 July 1990 Dr Cassar treated her at his pain clinic on 46 occasions. He treated her complaints of discomfort in the right knee, cervical spine and upper limb with needle and laser acupuncture in the early stages, and with massage and stretch treatment during May and June. Discomfort in the neck persisted. Her disability of the right knee resolved.

11. The plaintiff felt fearful and distressed while driving when she returned to work. She was affected by the fact that two people had died in the accident. She was concerned about the possibility of another accident with similar consequences to herself. The other driver being dead, she felt as though the accident had been her fault because she had nobody else to blame.

12. Because she needed the income she continued to drive a taxi practically full-time, until one day a car pulled out of a side street directly in front of her and she was forced to swerve violently to avoid a collision. The incident terrified her. It happened close to her home. She drove home, got out of the car and went inside and cannot remember what she did then. She was not able to take up taxi driving again.

13. Soon after she began her course of treatment at Dr Cassar's pain clinic, Dr Cassar suggested that she receive treatment for her fear of driving, and he referred her to Mr Petroni, psychologist. She saw him first on 26 February 1990 and underwent a course of treatment which involved about 24 consultations.

14. At the time of her initial interview she complained that she had completely lost any confidence in driving and was highly anxious in any kind of road traffic situation. She had been suffering from nightmares. Mr Petroni's treatment took the form of hypnosis and desensitization therapy between 26 February 1990 and 4 June 1990. She showed progressive gains throughout the therapy. By the middle of March she was more confident and had begun to drive without fear. By 21 March she had improved further. She was taking hardly any tablets for pain and her headaches were under control. She was sleeping well and doing all her own housework. Mr Petroni reported that at the time of her last consultation she had shown continued improvement, appeared to be in control and the prognosis for return to employment was very encouraging. From a psychological point of view he thought that she was incapacitated for work at least until 21 March 1990.

15. On 4 April 1990 she was examined by Dr Keiller on behalf of the defendant. She told Dr Keiller that she had returned to work about three and a half weeks after the accident and had continued to drive until October 1989. She then described the incident where she was nearly involved in another collision. To Dr Keiller she gave the date of that incident as October 1989. In her evidence in chief and in answers to interrogatories, which she affirmed on 11 July 1991, she gave the date of that incident as 25 June 1989. There is no mention of the incident in Dr Reading's report of mid August 1989. Indeed there is no mention of the incident in any of Dr Reading's reports. Dr Cassar was treating her until July and he also does not mention any such incident. It is not mentioned in Mr Petroni's report. I think that on balance the incident probably happened, but it is more likely that it happened in October, as she told Dr Keiller. The incident and the date would then have been fresher in her memory. She told him that she had recently started to drive her own car again but not with passengers, which is consistent with Mr Petroni's report.

16. In Dr Keiller's opinion the plaintiff had sustained a soft tissue injury to her neck and to her knee with various other minor soft tissue injuries from which she had recovered. Her main problems were continuing headaches, pain below the right knee on pressure, and an emotional disturbance with nervousness in the car which was being treated by the psychologist. He expected her physical symptoms to continue for the foreseeable future, as recovery from this type of trauma tends to be prolonged and intermittent. He did expect however significant resolution over the following one to two years.

17. On 10 May 1990 she was examined by Dr Lucire, psychiatrist, on behalf of the workers compensation insurer. She told Dr Lucire that she had continued to work until October 1989 because of her financial situation but that in October she had learnt that workers compensation was available to her, and she stopped working. Dr Lucire summarised her opinion at that time as follows:
"Janet Pollock was involved in a very nasty

accident which does not seem to have been her fault.
Two people were killed. As a result she developed a
post traumatic anxiety state with re-experiencing and
guilt feelings. She is having adequate treatment at
the moment.
In a situation such as this the patient's emotional
state will feed into the physical symptoms. In other
words, some of her emotional state is felt in the body,
i.e. somatized. This is what the lawyers seem to know
as functional overlay."

18. On 16 June 1990 she and Mr Westwood married.

19. In October 1990 she consulted Dr Kraus, principally for gynaecological problems. Dr Kraus noted her whiplash injury but did not extensively investigate or treat it.

20. In November 1990 her solicitors sought an opinion from Dr Mickleburgh, consultant psychiatrist. She spoke to Dr Mickleburgh about her irrational guilt concerning the death of two of the occupants of the other car. She claimed that she had suffered a severe anxiety reaction and depression, which was slowly resolving but had not yet then cleared. She was still having problems with pain in the back of her neck and shoulders which occurred intermittently for three or four days every week or so. She continued to have occipital headaches.

21. In his opinion the plaintiff was suffering from a post traumatic syndrome with an overlay of chronic low grade anxiety and depression. However she was making progress slowly towards recovery, and the ultimate prognosis should be one of guarded optimism. He thought that continued psychotherapy would be useful.

22. Dr Mickleburgh was the only doctor who gave oral evidence and was cross-examined. In his evidence in chief he referred to the effect of the near accident, which, it appears, he was told had happened in October of 1989. When asked what significance he attributed to that event he replied:

"Well it was all part of the history really. She
had had the one trauma, which no doubt had sensitised
her to some extent, and she had an exaggerated response
to this second thing because of the previous
sensitisation."

23. He noted that the plaintiff was undertaking training in child care and had no intention of returning to work as a taxi driver. He did not think that it would have been wise for the plaintiff to expose herself to that kind of experience again. In cross-examination he adhered to his view that the near miss had the effect upon her that it did probably because she had been sensitised by her previous experience. That summarises my own view.

24. As Dr Mickleburgh had noted the plaintiff is of large build and overweight. She had gained a further 30 kilograms since the accident. On 3 January 1991 Dr Kraus referred her to Dr Goldrick for management of her obesity. In April 1991 a gastric stapling operation was performed by Dr McKeown. While the accident might have been the cause of some increase in her obesity I do not think that the need for this operation resulted from the accident.

25. Dr Kraus also referred the plaintiff to Dr Newcombe, who saw her on 24 January 1991. She was still complaining of neck pain with some radiation to the left shoulder. She continued to suffer from headaches. In Dr Newcombe's opinion the accident had caused a musculo ligamentous strain of the neck which he expected to resolve eventually. He thought that a period of about a further year would be needed, and hoped that eventually the plaintiff could return to full-time work as a taxi driver. Implicit in that opinion is the view that she was still suffering sufficiently from her soft tissue injury to prevent her from working full time as a taxi driver.

26. Dr Keiller re-examined her for the defendant on 18 February 1991. Her headaches and neck pain were continuing. She complained of getting depressed at times, though less often than before, and she remained frightened in motor cars. On examination he found that she was still significantly depressed but that there had been significant physical improvement since his last examination. Her neck showed a full range of pain free movement but the plaintiff experienced some discomfort after the examination. In his opinion the plaintiff still had some residual neck discomfort but the main problem he believed was emotional. He commented:

"Her physical symptoms however are genuine, and stem
from the accident.
They interfere with her sense of well being and
comfort and are of significant, nuisance value.
However there is no measurable impairment of function
such as to constitute disability.
If she was emotionally stable, then I would see no
reason why she should not return to taxi driving.
However, in view of the psychological problem,
alternative forms of employment are needed. She is fit
for sedentary and semi-sedentary duties, especially of
a type where there is a mixture of walking, standing
and sitting, and there must be no requirement for heavy
lifting or prolonged maintenance of one posture in the
neck, such as acute flexion or extreme extension."

27. The solicitors for the defendant also referred her to Dr Gupta for a psychiatric opinion. He first saw her on 8 February 1991 and again on 25 March 1991. Her complaints to Dr Gupta were consistent with her evidence and what she had told Dr Keiller, Dr Lucire and Dr Newcombe. His impression was that the plaintiff, whilst she might have had anxiety with depression as a natural result of her accident to begin with, did not have a clinically significant degree of it in April of 1991. He reviewed her condition again in December 1991 but had little to add to his first assessment.

28. Her own evidence is that she is not now receiving any treatment from Dr Kraus for her headache or neck. She is still anxious in traffic, whether driving or as a passenger.

29. In summary, the plaintiff was involved in a severe accident. She sustained moderately severe whiplash injury in addition to miscellaneous bruises. Her reaction to the accident, the deaths of the other people involved in it, and her own pain was such that she suffered post traumatic depression and anxiety.

30. The physical effect of the accident have largely resolved over the three years or so since the accident. Her emotional state while driving was such that when she was later nearly involved in another collision, and at about the same time discovered that she could receive compensation, resulted in her stopping work as a taxi driver. I find that in those circumstances her ceasing work was a result of the accident.

31. Her emotional state has continued to improve, so that she can now drive without real distress, but she will probably always be nervous to some extent in traffic. It is reasonable for her to decide that she will not subject herself to the constant tension and increased risks involved in earning her living as a taxi driver.

32. For her pain and suffering I award the sum of $33,000, of which only about $3,000 would relate to the future.

33. For interest on the past component of that amount, I award, on the conventional basis, $2,000.

34. The out of pocket expenses are agreed at $8,992. She received workers compensation, and the Fox v Wood component is agreed at $1,580.62.

35. It is not contested that her net average weekly income was about $350.00 a week. She had an initial period of 3 weeks or more off work. Then, as I see it, she ceased driving taxis in October 1989, not June 1989. I do not think that she has ever been fit to resume driving a taxi, but that does not mean that she has had no income earning capacity from October 1989 till now.

36. In February 1990 she undertook a course in Child Care Practice at the Reid TAFE, from which she graduated in November 1990. She was not earning income while doing that course, and it was fitting her for an alternative occupation. I think that justice would be done between the parties if I allowed a period of a bit over a year for loss of income, and taking other contingencies into account I award $20,000.

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

Pain and suffering $33,000.00
Interest 2,000.00
Out of pocket expenses 8,992.00
Fox v Wood 1,580.62
Loss of income 20,000.00
TOTAL $65,572.62

38. I direct the entry of judgment for the plaintiff in the sum of $65,572.62.