Margaret Adeline Oliver v Henry George Noyes [1992] ACTSC 92 (11 September 1992)

SUPREME COURT OF THE ACT

MARGARET ADELINE OLIVER v. HENRY GEORGE NOYES
S.C. No. 191 of 1989
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Soft tissue injury - Cervical spine - No issue of principle.

HEARING

CANBERRA
11:9:1992

Counsel for the Plaintiff: G. A. Stretton

Instructing Solicitors: Hill and Rummery

H. M. Curtis

Counsel for the Defendant: L. M. Morris QC
T. D. Blackburn

Instructing Solicitors: Abbott Tout Russell Kennedy
D. S. Galbraith

ORDER

Judgment for the plaintiff in the sum of $173,685.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 4 April 1987.

2. The plaintiff is a married woman, a pensioner, who was born in October 1938. She went to primary school in the country in Victoria and left at about the age of 14 without developing any skills at reading and writing. She worked at waitressing and cooking until she first married at the age of 18.

3. She later worked with her husband on a farm in Queensland growing pineapples and bananas. She separated from her husband in 1963 and went to live in Melbourne with the man to whom she is now married. She had a daughter at the end of 1965 and with them came to Canberra. Her husband worked as a plasterer until he finished work at the age of 64 in about 1973.

4. She then began to work as a kitchen hand and waitress at the Canberra Workers Club. She and her husband were married in August 1978. From 1980 until May 1986 she worked as a kitchen hand at the Ainslie Football Club.

5. By that time she had risen to be the hostess in charge of the restaurant.

6. In about May of 1986 she joined with a Mr Leeming and a Mr Kent in the operation of a company to carry on a catering business. That company obtained the catering contract at the Royals Football Club in Canberra. She managed the restaurant and performed part of the waitressing and kitchen work.

7. A dispute arose between the company and the club about the conditions or facilities available for the business and in February 1987 the arrangement with the Royals Club finished.

8. It seems that the business then obtained a small catering job at the Australian Rules Football Club at Phillip.

9. In April 1987 the plaintiff was in good health and capable of hard work in the catering field, which she enjoyed.

10. At about 9.00 o'clock in the evening of 4 April 1987 the plaintiff was driving west on Lady Denman Drive in Yarralumla. A person by the side of the road waved to her, in response to which she stopped her car. While her car was stopped a vehicle driven by the defendant ran into the back of her vehicle.

11. She was wearing a seatbelt. She was completely unprepared for the collision. It was a severe accident. The car was spun around. She did not lose consciousness. The seat that she was sitting in was pushed back. She was terrified and could smell petrol leaking.

12. She was helped from the vehicle and her daughter came to take her home. She felt pain at the back of her neck and in her head and later that evening went to Canberra Hospital where she was observed for some time and sent home with some tablets.

13. Two days later, on 6 April 1987, she went to see her general practitioner, Dr Cookman. She was complaining of pain at the back of the neck and across the shoulders and down her back. Dr Cookman ordered X-rays but they did not disclose any abnormality. He prescribed rest and Dolobid. She went home and rested, and returned to see Dr Cookman on 22 April 1987, when there were still no neurological findings. He prescribed an anti spasmodic drug together with further rest.

14. On 11 May 1987 there was still no improvement so he referred the plaintiff to Mr Rumore for physiotherapy. She felt she could not afford his treatment.

15. In fact she attended the Macquarie Chiropractic Clinic where she came under the care of Mr McDowall. His manipulation seemed to relieve the symptoms for about a day following the treatment.

16. Between May and October of 1987 she also returned to see Dr Cookman on four occasions. Throughout that time he observed pain and tenderness in the neck and shoulders with limited movement. Dr Cookman noted that as the length of time after the accident continued to increase and she was not getting any better she was becoming increasingly apprehensive about the eventual outcome. She was also in some financial difficulties about continuing with the chiropractic treatment. He prescribed Diazepam, which is an anti anxiety medication as well as having a muscle relaxing effect. In November 1987 Dr Cookman reported that perhaps as a result of the Diazepam she was a little happier and managing to work, but was still troubled by muscle soreness with prolonged work.

17. She had gone back to work in October of 1987, still with Mr Leeming, but performing light cooking duties at Norths Rugby Club. She found that the lifting and working caused too much pain and numbness at the back of her neck and pins and needles in her arms.

18. Dr Cookman then referred her to Dr Newcombe who saw her first on 1 December 1987. On examination he could find no abnormal neurological signs apart from some restriction of neck movements. Dr Newcombe had a CT scan of the cervical spine performed on 11 January 1988 but it showed no evidence of disc protrusion or narrowing of the nerve root canal. He thought that the best explanation of the distribution of her pain was that in addition to a musculoligamentous strain of the neck, she also had cervical intervertebral disc protrusion causing nerve root compression, even though it was not conclusively demonstrated by the CT scan. He thought that conservative treatment should be used rather than further investigations such as myelography or surgery.

19. Dr Newcombe reviewed her condition on 21 June 1988. She was then complaining of continued neck pain radiating over the shoulders to both arms and hands. All fingers were involved. The problem was worse in cold weather. She claimed that her pain had caused her to stop work in May but she had not improved since ceasing work. He considered that she continued to have a musculoligamentous strain and that her general condition had not improved. He still thought it possible that she also had cervical intervertebral disc injury not revealed by the CT scan.

20. She was then referred to Dr Howes at the Woden Valley Rehabilitation Clinic. He first saw her about 22 August 1988. On clinical examination he found that she was overweight. There was restriction of neck movements. There was tenderness over the second and fourth cervical vertebrae on the left and the third thoracic vertebrae on the left. He thought that she had mechanical derangement of the cervical spine which would account for her headaches and pain radiating into the arms. However, he thought she also appeared to have some signs of mild generalised osteoarthritis.

21. On 15 September 1988 she went back to Mr McDowall. She complained that she had been hurt by the examination at the hands of Dr Howes. He then began to treat her again.

22. On 5 September 1988 Dr Howes reported to Dr Cookman that X-rays of the cervical spine had showed no abnormalities but that X-rays of the hands showed mild degenerative changes. He prescribed Feldine.

23. In September 1988 Dr Howes thought that she might have simple mechanical problems in the neck, that is strained ligaments, and that she did have some referred tenderness into the hands and arms. She also had what he thought were typical cervical type headaches radiating over the back of the neck. These symptoms and signs were consistent with the history of the accident that she had suffered. Manipulation of the upper cervical spine improved the range of movement but did not appear to improve the pain. He thought it advisable to refer the plaintiff to Dr Danta for nerve conduction studies.

24. Dr Danta saw her for the first and only time on 17 October 1988. He found diffuse tenderness in the neck structures and over the shoulders. There was inconstant weakness of the arm muscles without any wasting or reflex change. He found no abnormal neurological signs.

25. He diagnosed a whiplash injury to the neck. There was nothing to indicate nerve root involvement. He felt that she had developed a chronic pain syndrome and that her prognosis was poor. He ascribed her complaints and disabilities directly to the accident and thought that they might well continue for many years and possibly remain with her indefinitely.

26. In December 1988 Dr Cookman thought that it was clear that the plaintiff was becoming increasingly distressed by her pain and her psychological state was not good. Diazepam, which she had been taking for some time, was the only medication which helped. He thought that it would be unwise for the plaintiff to undergo any surgery.

27. In April 1989 the plaintiff was admitted to the Psychiatric Unit at Woden Valley Hospital. The plaintiff has little memory of the episode and is obviously unwilling to acknowledge that it happened. She was discharged on 3 May 1989. He counsel does not claim that this episode was causally related to the accident.

28. In May 1989 her solicitors arranged for her to see Judy Collett, a psychologist with Dr Corry's Rehabilitation Unit. The plaintiff did not attend a follow up appointment, so that it was difficult for Ms Collett to conduct a complete assessment.

29. Dr Newcombe reviewed her condition on 16 March 1990. She was still complaining of neck pain with radiation towards the shoulder together with low back pain and some stiffness in her right hand. She was finding it difficult to do all her domestic tasks, especially as her husband was now aged 80. He found a full range of neck movements and no neurological signs. He still suspected some disc problems, but thought it reasonable to conclude that the accident had caused a musculoligamentous strain of the neck and aggravation of thoracic and lumbar spondylosis.

30. On 13 June 1989 Dr Andrews, consultant neurologist, examined her on behalf of the defendant. He had a copy of Dr Danta's report. She was complaining of occipito frontal headache, pain at the base of the neck extending down the right arm and very mild intermittent low back pain. She was under continuing emotional stress. Neck movements were moderately restricted. There were no abnormal neurological findings. Dr Andrews thought that emotional factors were overtaking the organic ones, and that a lot of the complaints of pain were due to secondary gain.

31. In January 1990 she consulted Dr Uren as her general practitioner. He found her to be grossly overweight. There was no change in her symptoms from her previous complaints. He also believed that the injury caused disruption to the discs with some nerve root involvement, but that surgical relief was not called for. He considered that the accident would have aggravated a pre-existing thoracic and lumbar spondylosis which was consistent with her age but of which there had been no pre-accident consequences.

32. Dr Newcombe found no change when he examined her on 16 March 1990.

33. When she was examined again by Dr Andrews for the defendant on 6 August 1990 she was complaining of a numbness extending down the ulnar boarder of the left forearm. He thought that there was a degree of exaggeration in her symptoms.

34. In October 1990 Dr Saboisky, psychiatrist, saw her at the request of her solicitors.

35. He did not find any evidence of anxiety or depression or any suggestion that she was exaggerating her difficulties. He could find no evidence of psychiatric impairment but the questionnaire that he had administered pointed to the possibility of a conversion disorder, which means that there is a complaint of physical symptoms in the absence of significant organic pathology to explain them, together with the presence of personal and social factors maintaining the symptomatology.

36. In July 1991 her general practitioner, Dr Uren, had seen her seven times over the previous year about her neck and back pain. She was having great trouble with insomnia. A minor slip in April 1991 had aggravated her back pain requiring an admission to hospital. At about the same time Dr Newcombe thought that her condition was stable and unlikely to change significantly. Neurosurgical attention was not likely to be required.

37. On 14 August 1991 she was examined on behalf of the defendant by Dr Burniston, consultant physician in rehabilitation medicine.

38. He found no abnormal neurological signs and her complaints of tenderness appeared to him to be not specific. She was very obese. He formed the impression that she was exaggerating her problems. In his opinion any strain that she had sustained in her neck in the accident should have resolved by that time. So far as her lower back was concerned he thought that she could have suffered in addition to myofascial strain some aggravation of pre existing degenerative pathology. He thought that this aggravation had also largely resolved and that her complaints were consistent with what one would normally expect to find in a woman of her age and weight with her degree of naturally developed lumbar degeneration.

39. The following day, on 15 August 1991, she was examined by Dr Roberts, a psychiatrist, at the request of the defendant. He was not impressed. He thought that her complaints and response to the examination could not be explained by a reactive disorder, and clearly indicated that her condition was determined by the fact that by asserting medical illness she would obtain a monetary reward. In other words he thought that she was malingering.

40. In that state of the medical evidence I was somewhat surprised that none of the doctors involved gave oral evidence or were cross-examined. In order to resolve the conflict between those who think that she has a continuing soft tissue disability and those who think that she is consciously trying to make money I am left to rely upon my own impressions of the plaintiff and the consistency of her complaints. She is a lady who is not of above average intelligence and she was cross-examined by senior counsel for the defendant. A lot of that cross-examination related to the circumstances in which the contract with the club finished. Of course there were inconsistencies that were highlighted by such an unequal contest. But there was nothing in that cross-examination that causes me to think that she was deliberately malingering. Nor is there any other evidence in the case, or such glaring inconsistency in her complaints, that leads me to that conclusion. I think that it is more probable that the treating doctors who were seeing her over a considerable period of time were better able to form an accurate impression and that despite the absence of any observable organic reason for her pain she has genuinely suffered it. Among the specialist opinions the one that most closely accords with my own impressions is that of Dr Danta, neurologist. I am also more impressed by the opinion of Dr Saboisky, who at least resorted to some attempts of measurement by his questionnaire, than by that of Dr Roberts.

41. In summary therefore, five years ago, at the age of 48, she was involved in a moderately severe rear end collision which caused soft tissue injury to her spine, particularly in the cervical region. I think it is more likely that the damage was ligamentous, and did not involve the discs. It nevertheless caused pain which was disabling, and which did not begin to clear up significantly or at all over a long period of time. She naturally became unhappy about her failure to improve, but the accident did not cause any specific or identifiable psychiatric illness. Her pain has become chronic, and is now unlikely to go away. She gets some relief from medication, but continues to suffer constant pain and sleeplessness. I think that her obesity is a result of her disability, and not the cause of her symptoms, though of course she would feel better if she lost more weight.

42. The condition of her spine and her age is such that she might well be now beginning to experience some discomfort and restriction of movement in her back and neck, but there is no evidence to suggest that she would be suffering pain of the same type or severity that she now suffers, or that she would not have been able, physically, to continue to work at her pre-accident job until a normal retiring age.

43. For her pain and suffering and loss of amenity I award $40,000, of which $10,000 relates to the future. On the past component of that item, on the conventional basis, I award $3,250 for interest.

44. There was a dispute about one item of the out of pocket expenses, being a visit to casualty and an X-ray on 14 March 1991. The account from the hospital ascribes the reason for the accident as being a motor vehicle accident. There was no other accident that she suffered at that time. Dr Uren mentions an aggravation of her neck pain following a slip on 3 April 1991. I am satisfied that the account relates to the injury caused by the accident. The balance of the out of pocket expenses are agreed at $2,902.10. I therefore allow $3,085 for out of pocket expenses.

45. There is no evidence about payment, so that I do not award interest on those expenses.

46. The past loss of income can not be calculated arithmetically on the basis of the evidence. Between 4 April 1987 and 8 May 1987 she received periodic compensation, and $1,350 is a reasonable claim for that period. She remained off work until about October of 1987, a period of about 5 months. An allowance for 20 weeks at $200.00 a week for that period would give $4,000.

47. The evidence is not clear about when she next ceased work. Her evidence was that she worked to about the following Queens Birthday weekend, which is early in June 1988.

48. On 21 June 1988 she told Dr Newcombe that she had stopped work in May because of her pain. The particulars only claim a loss at the rate of $200.00 a week until the end of December 1988, so that a fair allowance for that period would be 30 weeks at $200.00, giving $6,000.

49. So far as her income earning capacity is concerned, Mr Kent, who had been associated with her and who has knowledge of catering, gave evidence that she was capable of earning at least $300.00 a week. I took that to mean as an employee. That estimate was not contested. What was in issue was whether, engaged in the catering business with the background and abilities that she had, and as an entrepreneur, she would in fact have earned that much. There is much force in that objection. I can deal with the problem only by making a substantial discount for that fact, and also for the possibility that she might have been disabled by a degenerative back condition, and the need to leave the workforce to look after her ageing husband. $300.00 a week from 1 January 1989 to date is $57,814. I would allow $30,000 in respect of that period. The total award for past loss of income is therefore made up as follows:

4. 4.87 - 8. 5.87 $ 1,350
8. 5.87 - 8.10.87 4,000
1. 6.88 - 31.12.88 6,000
1. 1.89 - 11. 9.92 30,000
$41,350

50. In lieu of interest on that amount I award a lump sum of $16,000.

51. For the same reasons as required a very substantial discount on past earnings, the theoretical maximum for future loss must also be greatly reduced. The present value of a weekly loss of $300.00 for 10 years at 3 percent is $135,482. I allow $70,000 for future loss of income.

52. The total award is therefore as follows:

Pain and suffering $ 40,000
Interest 3,250
Out of pocket expenses 3,085
Past loss of income 41,350
Interest 16,000
Future loss of income 70,000
TOTAL $173,685

53. I direct the entry of judgment for the plaintiff in the sum of $173,685.