Yvette Angela Engelbert v Michael Richard Krege and Rudi Krege [1992] ACTSC 95 (18 September 1992)

SUPREME COURT OF THE ACT

YVETTE ANGELA ENGELBERT v. MICHAEL RICHARD KREGE AND RUDI KREGE
No. SC 399 of 1991
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Whiplash - Fusion - No issue of principle.

HEARING

CANBERRA
18:9:1992

Counsel for the Plaintiff: G.A. Stretton

Instructing Solicitors: Hill and Rummery

(C.L. Stephens)

Counsel for the Defendant: C. Whitelaw

Instructing Solicitors: Crossin Power Haslem
(C.J. MacLachlan)

ORDER

Judgment be entered for the plaintiff for $85,896.75.

DECISION

This is the assessment of damages for personal injuries suffered by the plaintiff in a motor vehicle accident on 14 June 1989.

2. The plaintiff was born on 20 October 1963. She attended Blayney High School and then attended a full time three course at the Canberra College of Advanced Education, graduating with a Batchelor of Arts in Communication and Media at the age of about 21. She worked as a clerical assistant with the Department of Employment and Industrial Relations, being promoted during her time there, and then spent some time as a director's assistant with a video production company called Armak Productions Pty. Limited of Deakin.

3. In August 1988 that company failed financially. After a short period of casual work as a waitress she obtained a job as a voucher examiner with the American Embassy in Canberra. She was later promoted to accounts clerk, a job which involved her in constant use of a computer.

4. She was in good health and in particular had never had any problems with her neck before the accident.

5. On 14 June 1989 she was driving to work and halted at the intersection of Melrose and Yamba Drives. A car driven by the defendant collided with the rear of her car. She was wearing a seat belt. She was looking to the right when the collision happened. She was thrown forward and back. She was restrained by the seat belt. She did not lose consciousness. Immediately after the accident she was in shock and upset.

6. Nevertheless she proceeded to work. As the day went on she felt nauseated, her neck became stiff and she suffered from headache.

7. The following day she went to see Dr Cleary, her general practitioner.

8. On examination he found quite marked reduction of movement in the cervical spine with muscle strain over the posterior cervical muscles. He prescribed analgesics and an anti inflammatory medication, and ordered an x-ray. The x-ray report was, "No fracture or dislocation noted. There is a loss of normal cervical lordosis due to muscle spasm." Dr Cleary then referred the plaintiff to a physiotherapist and prescribed a collar for her to wear.

9. She tried to carry on at work but suffered particularly when she had her head down, from headaches and nausea. She failed to respond to the physiotherapy. Dr Cleary ordered a CT scan which was carried out on 22 August 1989. It disclosed a small disc herniation at the C5-6 level and no other abnormality.

10. Dr Cleary referred the plaintiff to Dr Chandran, consultant neurosurgeon. He saw her on 28 August 1989. On examination he found no neurological deficits. There was a slight restriction in rotation of the neck. There was tenderness at the C5-6 level. He referred her for manipulative physiotherapy. He thought that she should be treated conservatively in the initial stages but he could not rule out the possibility of surgery.

11. She attended for about fifteen sessions with Mr Cousins, physiotherapist, for heat treatment and gentle manipulation of her neck. He tried traction once but it only aggravated the pain. She found that she got some relief during the physiotherapy sessions but her pain soon returned. On a number of occasions she needed assistance to be driven to the physiotherapist.

12. Dr Chandran reviewed her in October 1989. He gave her injections into the tender spots in the neck at the C5-6 and C6-7 levels on 8 December 1989. The injections were painful in themselves and did not give her any relief. She continued to struggle on at work under difficulties.

13. When Dr Chandran reviewed her in February 1990 there had been no relief in the pain. He ordered an MRI scan which was performed in Sydney on 26 February 1990 and showed moderate posterior protrusion of the C5-6 disc.

14. On 16 March 1990 Dr Chandran performed a discogram during which the plaintiff suffered the usual severe discomfort. That procedure showed painful disruption at the C6-7 level with no abnormality at C4-5.

15. On 22 April 1990 she was admitted to the John James Hospital, and on the following day, under general anaesthetic, Dr Chandran performed a fusion operation at the C5-6 and C6-7 levels. From the doctor's point of view her recovery was uneventful. She was discharged from hospital on 1 May 1990. She received physiotherapy in hospital and was discharged with a collar and a prescription for Valium.

16. Before the accident she was engaged to be married, and the ceremony had been scheduled for 19 May 1990. She proceeded with the celebrations on that day, discarding the collar just for the day. As a result she experienced sharp pains in the neck and nausea.

17. Dr Chandran reviewed her on 15 May shortly before she left for the United States with her husband. She reported some aching in the shoulders, but no pain in the arms. Her headache had improved to some extent. He thought her progress was satisfactory to that time.

18. The long trip to America caused her some discomfort. During June 1990 she was able to give up wearing the collar and began looking for a suitable job. She did not feel that she would be able to spent long periods in front of a computer. Attempts to do so gave her a severe ache down the back of her neck, headaches, and then numbness in the right hand. In July 1990 she obtained employment as a desk clerk at the San Clemente Inn in California. It was job where should could move around and although she had some difficulties she was able to cope.

19. On 17 August 1990 she consulted Dr Brophy, a staff doctor at the Naval Hospital in San Diego. He found a good range of movement in the neck and that the grafts in the cervical spine were achieving good fusion in excellent position.

20. In April 1991 she and her husband moved to Texas. She obtained employment as a disk jockey at a radio station which again she was able to handle.

21. In September 1991 she began employment as a receptionist at the Holiday Inn Hotel, Mt Pleasant, Texas. She was suffering some discomfort still with neck pains, numbness and headaches. There was a change in management at the hotel which put her under more pressure so that she resigned her position on 8 May 1992. She came to Australia on 24 May 1992 for the purposes of this litigation.

22. On 19 June 1992 Dr Cleary reviewed her. Her present complaints are restriction of movement in the cervical spine and numbness of the third and fourth fingers of the right hand. He found that the restriction of movement was consistent with the results of her operation. He thought that the diminished sensation in the fingers could be due to scar formation at the exit of the spinal nerves. She continues to take medication, especially for her headaches. She is restricted to some extent in her household duties. She is no longer able to indulge in horse riding, which she enjoyed. She is also concerned that she may have difficulties coping with children.

23. The plaintiff's evidence about her injury and suffering was not controverted or attacked in cross-examination and the doctors were not required for cross-examination.

24. In summary, the plaintiff suffered a moderately severe whiplash injury in the accident. Despite her efforts to continue at work, and conservative treatment, a fusion operation at two levels became necessary. This has left her with permanent restriction of movement, but it has largely alleviated the constant pain. She still suffers some pain and discomfort. Her condition is not likely to improve. She is restricted to some extent in the range of physical activities open to her.

25. There will be some expense for medication in the future, which I take into account in assessing general damages, as I was invited to do by counsel.

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

27. The out of pocket expenses are agreed at $10,896.75. They were met by the Embassy, so that there is no interest to be awarded on them.

28. To the date of her resignation from the Embassy, 18 May 1990, the plaintiff received full pay even while on sick leave, and an amount of $3,647.28 must be repaid in respect of that period.

29. She resigned in order to marry and travel with her husband to the United States. She had planned to do that in any event. When she arrived in the United States she did not obtain employment as lucrative as that she had enjoyed at the Embassy in Canberra. But that unfortunate fact is not necessarily a consequence of the accident. There is no evidence that employment of that type and at that salary would have been available to her in the United States, even had she been fit to take it. There is no direct evidence that there was in fact available to her in the United States any employment, more lucrative than what she did obtain, but which she was forced to forego because of her physical condition.

30. I accept her evidence that if she had been uninjured she would have sought employment in some sort of computing job, and that it would have paid more than she was able to earn at the hotel. But there is no evidence that quantifies the difference.

31. The submissions of counsel were based on what her earnings would have been had she remained at the Embassy. I accept the submission of counsel for the defendant that there has been an error in the amount of tax in those calculations. They provide some guidance for what must be a matter of discretionary judgment.

32. I award $10,000 for past loss of income. I make it clear that no part of that sum includes loss of income resulting from her attendance in Australia for the purposes of this litigation. The expenses of her attendance will be included in her costs, and quantifying them is a matter for the taxing officer, in the absence of agreement between the parties.

33. In view of the discretionary nature of that award I do not think it is appropriate to award interest on it.

34. Because of the lack of evidence about what employment is available, or would be available but for her injury, in the part of the United States where she has chosen to live, I am not able to award damages for loss of future income capacity based on a loss of $133.51 a week. The present value of that sum for 35 years at 3 percent is $151,878, which is so far out of proportion that it is not proper to use it by any process of discounting. The reason is that such a calculation starts from a wrong premise, namely that the evidence supports a continuing loss of anything like that amount.

35. There are some avenues of employment that it is reasonable for her to avoid because of her stiff neck. That is about as far as the evidence goes. There is no evidence that enables me to quantify what difference that will make to her as a young married woman in Texas. I can only assign a sum to her loss of opportunity, again as a matter of discretionary judgment. I think that a figure of $25,000 does justice between the parties.

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

Pain and suffering $38,000.00
Interest 2,000.00
Out of pocket expenses 10,896.75
Past loss of income 10,000.00
Future loss of income 25,000.00
TOTAL $85,896.75

37. I direct the entry of judgment for the plaintiff in the sum of $85,896.75.