Cherilyn Ann Kuchel v Lisa Jane Aitken [1992] ACTSC 91 (11 September 1992)

SUPREME COURT OF THE ACT

CHERILYN ANN KUCHEL v. LISA JANE AITKEN
S.C. No. 70 of 1989
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 - Facet joint involvement - No issue of principle.

HEARING

CANBERRA
11:9:1992

Counsel for the Plaintiff: G.A. Stretton

Instructing Solicitors: Macphillamy Cummins Gibson

P.A. Hohnen

Counsel for the Defendant: B. Williams

Instructing Solicitors: Crossin Power Haslem
G.C.M. Borzatti

ORDER

Judgment be entered for the plaintiff in the sum of $345,487.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 23 August 1988.

2. The plaintiff is a married woman who was born in South Africa on 20 May 1948. She came to Australia in 1961, and completed her education in Queensland, where she began work as a typist. She had a variety of jobs as a secretary, receptionist and clerk until she married in 1969. Her two sons were born soon afterwards and she did not return to full time work until 1981.

3. Since then her work has mainly been secretarial. In May 1986 she came to Canberra with her husband and children, and in June 1986 obtained full time employment as a clerk and typist with the AMP Society.

4. On 23 August 1988 she was driving to work in the morning on the Monaro Highway. At the intersection with Mugga Lane her car collided with a car driven by the defendant, in circumstances which the defendant does not contend did not amount to negligence.

5. The plaintiff was wearing a seat belt. The collision was relatively violent. She was thrown forward and struck her head on the sun visor. She was then thrown back. She did not lose consciousness. She immediately felt pain in the head and neck. She was shocked and upset.

6. Some bystanders helped her from the car and helped to calm her down and keep her warm. An ambulance attended but she did not want to go to hospital. Her husband arrived, and sought to persuade her to go home, but she wanted to go to work, to have company in her distress.

7. When she got to work she tried to do her normal duties, but was not able to do so. The pain in her neck increased. She made an appointment to see her general practitioner, Dr Lieu, whom she saw the next day, on 24 August 1988.

8. He noted her complaints of very severe headache, starting soon after the accident, tenderness over the back of the neck, and also on the lower back and both thighs. Movement of the neck was restricted, being more limited to the left side. He treated her with local heat and analgesics.

9. She continued to go to work, but because of her pain was unable to carry out her normal household tasks, which were taken over by her husband and children. She took her annual holidays, hoping that the rest would help. It did not.

10. In October 1988 Dr Lieu referred her to Margaret O'Donovan for physiotherapy. Her complaints were of constant neck and head pain. Her sleep was disturbed. Neck movements were grossly restricted. Ms O'Donovan gave her eight treatments of heat, rest with a soft collar and Disprin. There was no significant improvement from the physiotherapy.

11. Her employer also referred her to an occupational therapist and some changes were made in her work environment, but she derived only slight benefit as a result.

12. In November 1988 her general practitioner referred her to Dr Kitchin, orthopaedic surgeon. His examination confirmed the poor movement in flexion, extension and rotation of the cervical spine. There was no neurological deficit. Plain X-rays did not disclose any boney abnormalities. Dr Kitchin's diagnosis was of neck extension injury with possible intervertebral disc rupture. He advised her to continue with the collar for a time, to cease physiotherapy, and he prescribed a tablet for insomnia. He advised Dr Lieu to seek a neurologist's opinion if symptoms persisted. His prognosis was guarded.

13. On 7 December 1988 Dr Danta, neurologist, examined her. He also noted the restricted neck movements and diffused tenderness. There were no significant neurological symptoms. His opinion also was that the plaintiff had sustained a typical soft tissue injury to the neck of the whiplash type, which had not responded to considerable treatment. He thought also that she had clearly not adjusted to the pain and disability emotionally and psychologically, and that this was probably the reason for the worsening of the pain. He advised a return to work and rehabilitation. He thought it was far too early for any confident prognosis.

14. In December 1988 she returned to part time work. For five or six weeks early in 1989 she worked three hours a day for five days a week, on restricted duties. In mid February her hours were reduced to four hours a day for three days a week, but her pain and headaches persisted. She ceased work on 17 February 1989 and has not returned to work since.

15. In April 1989 Dr Lieu referred her to Dr Andrews, neurologist, who prescribed Visken. It did not help. There is no report from Dr Andrews, but Dr Lieu reports that he ordered a CT Scan which was normal, and he referred her to Mr Cousins for manipulation. Mr Cousins for reasons of his own declined to manipulate her spine.

16. In June 1989 her employer referred her to Dr Greig in Sydney, who referred her to Dr Garrick, a consultant physician. He noted a vague reduction of sensation over the left arm, and detected marked spasm and tenderness of a number of muscles at the back and below the neck. He performed a paravertebral block at C2/3 level which was very painful at the time, but which gave a partial improvement in pain and discomfort and in range of movement. He diagnosed a substantial cervical ligamentous strain. He thought the symptoms in the left arm were related to muscle spasm rather than nerve root compression. He positively advised against further investigation by discography. He recommended further physiotherapy, which she undertook at the hands of Mr Maher.

17. She was then referred by Dr Lieu to Dr Chandran, who saw her on 19 August 1989 and 15 September 1989. Her complaints to him were consistent with her evidence and her complaints to other doctors. Reflexes were normal and she complained of a diminished sensation over the whole of her left arm, which Dr Chandran noted did not fit any known dermatomal pattern. Dr Greig's explanation for that symptom was not put to him, and I do not think that there should be any inference adverse to the plaintiff drawn from the fact that the syndrome did not appear to be due to nerve root pressure.

18. Dr Chandran noted that Dr Garrick's injection into the facet joint in mid 1989 had given her some relief and he detected tenderness over the left facet joints at C2/3 and C3/4 and the right facet joints at C4/5. Radiological studies showed only slight degenerative changes in the cervical spine. He also tried an injection into the left C2/3 facet joint, but the plaintiff did not obtain any relief from it.

19. Dr Chandran gave evidence and was cross-examined. He did not resile from his opinion that her symptoms were consistent with soft tissue injury and that the signs suggested facet joint involvement. He thought that her symptoms were likely to persist indefinitely.

20. In his report of 3 October 1989 Dr Lieu mentions that she had also been seen regularly by Ms Allworth, the occupational therapist, and Dr John Clark, a psychologist. In September 1989 he referred her to Dr Lithgow's Pain Management Clinic. It appears that Dr Lithgow advised him that he had nothing else to suggest by way of treatment. Dr Chandran also attempted a number of local steroid injections to the neck which made her dizzy but which did not improve the pain. She tried a Tens machine, again without any useful effect.

21. Dr Danta reviewed her on 16 November 1989. She had not improved. Because she had not positively adjusted to her chronic pain and disability his prognosis was unfavourable, and he thought that she was likely to continue with her complaints and disabilities for many years, if not indefinitely. He did not think that much more could be offered medically.

22. Early in 1990 she continued to consult Dr Lieu, who referred her for acupuncture, which provided some temporary relief from the headaches.

23. On 21 February 1990 she was examined by Dr Vanderfield, a neurosurgeon, in Sydney, for the defendant. He thought that she had received only a minor injury because she went back to work. He could not find any objective signs or clinical evidence of neurological disability.

24. Dr Vanderfield gave evidence by telephone. He agreed that the absence of clinical signs of neurological disability did not mean that the plaintiff could not be suffering genuine pain.

25. On the same day she was also examined by Associate Professor Jones, consultant in rehabilitation medicine. He found her neck movements to be significantly restricted. His opinion was that she had suffered soft tissue injuries in the accident. Her tension was causing muscle spasm. He did not agree in his report with the diagnosis of facet joint damage. He thought that she would benefit from seeing doctors less frequently and getting back to work gradually, with help from relaxation techniques.

26. He also gave evidence and was cross-examined by telephone. He had been informed of the dramatic improvement in the treatment of her headaches from the use of Imigran, a new medication. That factor confirmed him in his optimistic view about the future progress, especially if she could get back to work.

27. On 8 March 1990 she was examined in Sydney by Dr Cummine, an orthopaedic surgeon, for the defendant. His report was not tendered, and I assume the defendant's advisers formed the view that he had no useful information to add to the medical picture.

28. On 10 April 1990 she was involved in another motor car accident, when she was in a car driven by her son. Although she was shaken up and upset by the incident I do not think that it has had any significant effect upon the symptoms that resulted from the subject accident.

29. Late in April 1990, at the request of her solicitors, she was examined by Dr Tom Sutton, clinical psychologist. He could find no evidence of exaggeration. Indeed, his tests indicated that she was trying to give a more positive impression of herself than was actually the case. He could not then suggest any further pain management treatment. She seemed to him to be coping with a chronic pain condition as best as could be expected.

30. In September 1990 she was directed to return to work. She was not convinced that to do so was medically advisable, and her employment was terminated on 13 September 1990.

31. In November a particularly severe headache was treated by a pethidine injection by Dr Lieu. In January 1991 she had a series of similar injections from Dr Lieu, and more into her neck in June 1991 from Dr Garrick. They were painful in themselves, but did not give much relief. Her experience accords with Professor Jones' opinion. He did not recommend them as a very useful form of treatment.

32. Her headaches and neck pain continued. She had more treatment in December 1991 and April 1992 from Dr Lieu. In May 1992 Dr Lieu suggested a trial of a newly released medication for the relief of migraine, called Imigran. She has found that, especially if taken early enough, they give dramatic relief of her headaches.

33. She still has a constant headache to some degree, which flares up from time to time. She also has constant neck pain, which travels down her shoulders and into the arm, especially on the left. Her neck movements are restricted. Her left arm is weak. She can not do heavy housework, and has her hair done at a hairdressers once a week. She can drive, but not for long distances. Her sleep is disturbed. There is tension within the family.

34. The plaintiff's evidence was not significantly attacked in cross- examination. Indeed, counsel for the defendant did not query the genuineness of her complaints in his address. He pressed the view expoused by Professor Jones, that there is not really a facet joint problem, and that when this litigation is concluded the plaintiff may well be able to see less of doctors, and begin to feel able to resume work, especially with the help of the medication to control her headaches.

35. I do not think it matters in this case whether there is facet joint involvement. Dr Chandran was speaking of soft tissue injury damage there, in any event. No one suggests that surgery is called for or would be useful in the least.

36. She has been suffering now for a long time. That reduces the likelihood that she will get better. She is a sensible, well motivated and honest lady, who would like to lead a more fulfulling life. That increases the likelihood that she will improve.

37. For her pain and suffering I award the sum of $38,000, of which about $8,000 would relate to the future. For interest on the past component on the conventional basis I award $2,400.

38. The out of pocket expenses are agreed at $17,735, in round figures. The bulk of those have been paid by the workers compensation insurer, so that interest is not sought on that item.

39. Counsel for the plaintiff submitted a schedule of past wage loss, which appears properly based on the figures in evidence, and amounts to $65,313.49 up to 22 June 1992. The rate for continuing loss is $392.19 per week. That brings the total past wage loss to the date of this judgment to $69,852. She received workers compensation payments totalling $37,715 up to 22 June. I have not calculated what she has received since, because an award of interest on the difference is not a matter of exact calculation. She was paid full salary up till her termination date on 13 September 1990. In lieu of interest on her past wage loss I award a lump sum of $4,500.

40. For future loss of income earning capacity, the outside limit is marked by the present value of $392.19 a week for 11 years at 3 percent. That is $192,116. Reducing that figure for normal contingencies would give $163,299. I think that it should be further reduced on account of the chance that the plaintiff might recover sufficiently to get back to employment, but that discount should not be very great.

41. For future loss of income earning capacity I award $150,000.

42. There are other continuing expenses, such as for medication, doctors fees, hairdressing and so on. The cost of medication will almost certainly come down, but when and by how much can not even be guessed at. Her statistical life expectancy is 36.22 years. The present value of $1.00 a week for that period at 3 percent is $1,155. I award $30,000 for future miscellaneous expenses.

43. The present value of her loss of superannuation benefits is calculated by the actuary in Exhibit "D" as $41,973. That figure must also be discounted for normal contingencies, and for the chance that she may rejoin the work force. I award $33,000 for that item.

44. I am not persuaded that there was anything other than a sensible rearrangement of domestic activities that resulted from the accident. I do not award any sum on the principles of Griffiths v Kirkemeyer.

45. The total award is made up as follows:

Pain and suffering $ 38,000
Interest 2,400
Out of pocket expenses 17,735
Past wage loss 69,852
Interest 4,500
Future loss of income 150,000
Future expenses 30,000
Loss of superannuation 33,000
TOTAL $345,487

46. I direct the entry of judgment for the plaintiff in the sum of $345,487.