Percival George Bridson v K and S Freighters Pty Limited [1992] ACTSC 83 (28 August 1992)

SUPREME COURT OF THE ACT

PERCIVAL GEORGE BRIDSON v. K and S FREIGHTERS PTY LIMITED
S.C. No. 778 of 1989
Damages

COURT

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

CATCHWORDS

Damages - Personal injury - Motor vehicle accident - Chest, leg and spine - Aggravation of pre-existing conditions - Post traumatic stress disorder - Anxiety - Cervical disk degeneration - No issue of principle.

HEARING

CANBERRA
28:8:1992

Counsel for the Plaintiff: F. G. Parker

Instructing Solicitors: Abbott Tout Russell

Kennedy

Counsel for the Defendant

and the Third Party: G. Lunney

Instructing Solicitors: Macphillamy Cummins and
Gibson

ORDER

The Court orders that:

1. Findings are published.

2. Liberty be reserved to either party to apply on the question of interest within 14 days.

3. Subject to an allowance for interest, if any, it is proposed to direct the entry of judgment for the plaintiff in the sum of $69,906.60.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 10 March 1988. The accident happened on the Federal Highway within the State of New South Wales, and the claim is therefore subject to the provisions of the Motor Accidents Act 1988 of New South Wales, particularly S.79.

2. The plaintiff was born on 28 March 1940. He joined the Public Service and in 1985 was a Grade 3 Clerical Assistant in the Scientific Branch of the Australian Federal Police. He had been a patient of the practice of Drs Henderson and Wright since 1975. As a result of difficulties that he encountered from fellow workers he began to suffer from anxiety and depression, and also had episodes of angina pectoris. In 1985 he was retired from the Public Service on medical grounds. During 1985 his heart condition was treated in the United Kingdom, and on 20 June 1986 Dr Henderson reported that in the absence of work pressures his anxiety and depression was in abeyance.

3. In 1982 Dr Connors had repaired a recurrent left inguinal hernia and some varicose veins. The hernia flared up in 1986 and again in 1988, and on 23 February 1988 Dr Fleming repaired it. He was discharged following that operation on 27 February 1988.

4. At about 8.00 o'clock in the morning on 10 March 1988 he was driving a Valiant sedan along the highway when a large steel gas cylinder fell from a truck passing the opposite direction. He saw the gas cylinder land on the roadway and collide with the front of his car. It was a violent impact. He was crushed by the steering wheel which was jammed against his upper abdomen. He could hear and smell the gas escaping from the broken cylinder. He did not lose consciousness. He managed to get out of the car and waited by the side of the road until an ambulance arrived.

5. He felt pain in the knees and the chest and was bleeding from the mouth. He was taken to Royal Canberra Hospital where he was admitted.

6. X-rays were taken of his chest, left ribs, sternum, left knee and cervical spine. No boney abnormality was demonstrated. Ultrasonic examination of the abdomen showed that the internal organs had not been damaged.

7. In the hospital he came under the care of Dr Noel Tait, consultant surgeon. Dr Tait noted marked tenderness over the cervical spine and the sternum, tenderness and swelling over the left knee and left knee joint effusion. There was a laceration on his forehead which required sutures. A bandage was fitted to the left leg and the plaintiff was treated initially with bed rest. After he had been satisfactorily mobilised he was discharged from hospital on 18 March 1988. He was referred to Dr Peter Morris, orthopaedic surgeon, for further assessment of his knee, back and leg pain.

8. He also saw his general practitioner, Dr Henderson, on 18 March 1988. He was still suffering from pain all over the chest and left knee.

9. Dr Morris saw him first on 30 March 1988. He found severe tenderness over the sternum, consistent with a fractured sternum, and evidence of a mild effusion of his left knee with medial joint line tenderness. There was mild tenderness in the right knee. There was a complaint of on-going pain in the right elbow together with some swelling. Dr Morris prescribed physiotherapy which the plaintiff underwent until June 1988.

10. When Dr Morris reviewed him again on 11 May 1988 the treatment with hot packs and ultra sound had been beneficial and the chest injury had settled considerably, but still gave the plaintiff discomfort when lying flat. His right elbow continued to be painful although he had full range of movement. He still had back pain and his left knee ached and was stiff. There was a full range of movement of the knee. There was tenderness on palpation of the lumbar spine.

11. On 8 June 1988 the plaintiff reported to Dr Morris that he was still experiencing discomfort in the rib cage although this was improving. The back pain had improved but was severe from time to time. There was still tenderness over the right elbow. X-rays of the elbow were normal. Dr Morris gave an injection into the elbow, but the plaintiff said it gave him no relief.

12. In September 1988 the plaintiff was complaining to Dr Henderson of suffering from nightmares.

13. On 10 October 1988 his complaints to Dr Morris were of ongoing left knee pain, particularly when kneeling, and pain in his right elbow. He had recurrent stiffness in the neck which radiated to the right clavicular region and an ongoing dull ache in his back. He had continuing discomfort with sudden pressure on his chest and also related tension headaches and a loss of confidence in driving as a result of his accident.

14. In October of 1988 the plaintiff had made an appointment to consult Dr Teasdale, consulting psychologist, who first saw him on 13 January 1989.

15. Dr Teasdale was the only medical witness who gave oral evidence and was cross-examined. In his opinion the plaintiff had developed major symptoms of post traumatic stress disorder, of which the symptoms were depression, diminished interest in activities, disturbance of sleep, psychomotor agitation, fatigue and listlessness, feelings of worthlessness, diminished ability to concentrate, indecisiveness, poor memory and occasional thoughts of death. He also showed symptoms of an anxiety state which included signs of autonomic hyperactivity such as shortness of breath, palpitations and sweating. Dr Teasdale undertook a course of cognitive therapy but the plaintiff's progress was very slow. In his opinion the trauma of the accident had undoubtedly aggravated his pre-existing anxiety state. Although some of his treatments related to the underlying anxiety condition, Dr Teasdale claimed to be able to separate out the treatments that related to the post traumatic stress disorder. The cost of the treatments which were related to the accident were of the order of $9,000. His evidence was that it was likely that the plaintiff would need ongoing treatment about four times a month for perhaps even four years at about $100.00 a consultation.

16. At about the same time that he consulted Dr Teasdale, the plaintiff was having some difficulties with Comcare concerning the relationship between his underlying anxiety state and his work. I think that it is clear that he was somewhat agitated at the prospect that his compensation might not be continued, but Dr Teasdale's opinion that he was able to separate out the results of the work induced anxiety and the post traumatic stress disorder remains unchallenged and I see no reason to doubt it. In particular, it seems to me that the correspondence in the Comcare file to which counsel for the defendant referred is quite consistent with Dr Teasdale's evidence and that of the plaintiff.

17. Meanwhile the plaintiff continued to suffer symptoms in the area of the hernia operation, and on 19 December 1990 Dr Fleming operated again to close the defect. I accept Dr Fleming's opinion that this further surgery was made necessary by the trauma of the accident.

18. Dr Morris saw him for the last time on 15 January 1991 for the purpose of giving a medico legal report. The plaintiff was continuing to suffer pain in both knees. He was unable to kneel and felt pain when sitting for any period of time with the knees bent. He was also still experiencing pain in the right elbow. He had ongoing right sided neck discomfort with pain in the neck if he tried to use a video camera for more than about ten minutes. The chest pain had subsided. Dr Morris summarised the situation as follows:

"Overall this man is left with significant
disabilities and recurrent pain in both his knees and
also right sided neck and elbow symptoms as a result of
his motor vehicle accident. I believe these knee, neck
and elbow symptoms can be considered permanent at this
stage and I would assess his knee disability to be in
order of fifteen percent each also."

19. On 4 February 1991 he was examined by Dr Cairns on behalf of the defendant. His complaints were broadly consistent with what he had so recently told Dr Morris. Dr Cairns noted that the plaintiff presented his history with a depressed and worried countenance. He noted the restriction of all ranges of movement of the cervical spine, but there was no evidence to enable him to attribute disc disease to pre-existing degeneration or to the accident. Dr Cairns commented that his ongoing incapacity appeared to be due to the injuries sustained in the accident, possibly subject to some degree of psychogenic magnification in view of his obvious depressive response to his injuries. The ongoing disabilities incapacitated the plaintiff for the day to day household activities as described by him. He thought that the prognosis in respect of the cervical spine was consistent with that of cervical spondylosis. The plaintiff appeared to have recovered satisfactorily from the chest and lower back injuries and he expected that the knee disabilities should ultimately resolve. He believed that the plaintiff would require ongoing psychological or psychiatric counselling and support and appropriate medical or physiotherapy treatment for the cervical spondylosis.

20. In September 1991 the plaintiff consulted Dr Ferguson. There was moderate restriction of all neck movements owing to pain in the back of the neck. Dr Ferguson had the cervical spine X-rayed on 18 October 1991. His conclusions were that the plaintiff's remaining physical complaints due to the accident were first, aggravation of pre-existing sublaxation from a disc degeneration and arthritis of the cervical spine, and, secondly, traumatic arthritis of both knees and his right elbow. I think that the X-rays and Dr Ferguson's opinion confirm Dr Cairns' suspicion that there had been pre-existing degenerative complaints in the cervical spine, but on the evidence it seems that the plaintiff had not suffered any symptoms of that condition until after the accident. Dr Ferguson treated the plaintiff by manipulation and anti inflammatory medication and analgesics. The headaches became less frequent and severe but there was no reduction of the pain in the knees and right elbow. He expected the complaints to continue indefinitely though he expected some benefit from the anti inflammatory drugs and analgesics, which would be required for the rest of his life.

21. In summary, the plaintiff's state of health shortly before this accident was that he had a heart condition that had responded to treatment, and latent anxiety state and depression, which was not symptomatic to any disabling extent solely because he was not in a stressful situation such as work, and he was recovering from the latest of a series of operations repairing a hernia.

22. As a result of the defendant's negligence he was subjected to a violent and terrifying accident, which resulted in:

- damage to his chest and rib cage, with at least
possibly a fractured sternum;
- a laceration to the forehead;
- lacerations to the mouth;
- injury to his knees, especially the left;
- soft tissue injury to his spine, especially the
cervical area;
- injury to his right elbow;
- damage to the recently repaired hernia; and,
- post traumatic stress disorder taking the form
especially of anxiety and depression.

23. A further operation was needed to repair the hernia, and after his recovery from that operation the effects of the accident in that area may be regarded as spent.

24. The lacerations to the forehead and mouth healed without difficulty or any long term effect.

25. The damage to the rib cage and chest healed over about the following year or so.

26. Symptoms in his knee, neck and elbow have persisted, and may be expected to continue indefinitely.

27. The neck symptoms are the result of the exacerbation of pre-existing but asymptomatic pathology in the spine. They may be expected to continue indefinitely, and to require medication and occasional physiotherapy.

28. The psychological consequences were moderately severe, and may be expected to last for some years, requiring ongoing psychological treatment.

29. His pre accident emotional state was such that he might well have suffered emotionally even had the accident not happened, especially if he found himself in any situation of stress, but it was the accident and the stress caused by its consequences, not concern about ongoing compensation, that made it as severe as it was and will continue to be.

30. In those circumstances it is clear that his ability to lead a normal life is presently significantly impaired.

31. I would assess the severity of his non economic loss as being one quarter of a most extreme case. The indexed amount which is the maximum amount for the purpose of S.79(3) of the Motor Accidents Act 1988 is $198,000, from 1 October 1991. The amount of damages to be awarded for non economic loss would therefore be $49,500.

32. That amount is more than $16,500, but less than $60,000. A deduction must therefore be made in accordance with S.79(5) of the Act, in this case in accordance with S.79(5)(b). That deduction is $16,500 reduced by $1,000 for every $1,000 by which $49,500 exceeds $44,000. $49,500 exceeds $44,000 by $5,500. But I read the section as requiring the deduction to be calculated by reference to "every $1,000", not "every $1,000 or part thereof". The excess is therefore $5,000. The reduction is therefore $16,500 - $5,000, which is $11,500. The resulting award for non economic loss will therefore be $49,500 - $11,500, which is $38,000.

33. There is no evidence of any facts that would enable me to award interest in compliance with S.73, but it would not have been appropriate for either party to lead any such evidence before my decision. I therefore reserve liberty to either party to apply on this issue.

34. The plaintiff was interested in photography, and I find that his injuries, especially his neck pain, impede him from carrying on that activity to the same extent as he might otherwise have done. However, I am not affirmatively satisfied that he intended, or was able, to earn a significant amount of income from it. Taking into account his pre accident medical condition I am not satisfied that he suffered from the accident any diminution of his future income earning capacity. The interference with his capacity to enjoy the activity, has been taken into account in estimating his non economic loss.

35. The out of pocket expenses that are not in issue total $6,091.60. It follows from what I have said that I would allow the reasonable costs of Dr Teasdale's fees, which are attributable only to the accident. I do not think that the defendant is required to bear any part of the interest component of his account. The amount to be allowed is therefore $8,815. The total out of pocket expenses is therefore $14,906.60.

36. Dr Teasdale's evidence is that he would expect the plaintiff to need ongoing treatment, "About four times a month, or weekly perhaps, for a number of years, perhaps even four.", and the cost for each is "Whatever the rate is. I think it is about $100.00, $120.00 something like that." Evidence of such vagueness, even though uncontradicted, needs to be approached with common sense tending towards caution. There must also be a discount on account of the present receipt of a sum to be expended periodically in the future. I would allow $10,000 for the cost of future consultations with Dr Teasdale.

37. The plaintiff will require ongoing medication and occasional physiotherapy for the rest of his life. Orudis costs about $30.00 a month, and Panadiene about $8.00 a month. Visits to Dr Ferguson cost about $21.00 a month. Those figures are of the order of $14.00 a week. The plaintiff is aged 52, with a statistical life expectancy of about 23 years. The present value of $14.00 a week for 23 years at a discount rate of 5 percent (S.71(1) of the Act) is $10,093. Taking account of the inherent vagueness of the figures on which that calculation is based, and of the plaintiff's state of health, I would allow the sum of $7,000 for this item.

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

Adjusted non economic loss $38,000.00
Out of pocket expenses 14,906.60
Future treatment by Dr Teasdale 10,000.00
Cost of other future treatment 7,000.00
TOTAL $69,906.60

39. Subject to any submissions counsel may wish to make on the question of interest, I would propose to direct the entry of judgment for the plaintiff in the sum of $69,906.60.