Rosemarie Louisette Pacot v Robert Campbell [1993] ACTSC 1 (25 January 1993)

SUPREME COURT OF THE ACT

ROSEMARIE LOUISETTE PACOT v. ROBERT CAMPBELL
No. SC 291 of 1989
Number of pages - 24
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Cervical and lower spine - No issue of principle.

HEARING

CANBERRA, 11-12 November 1992
25:1:1993

Counsel for the Plaintiff: P. Burton

Instructing Solicitors: Romano and Co and D.R. Romano

Counsel for the Defendant: P. O'Connor

Instructing Solicitors: Crossin Barker Gosling and

C.J. MacLachlan

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $283,735.

DECISION

MASTER A. HOGAN. This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 22 October 1988.

2. The plaintiff was born in France on 20 November 1946. After leaving school at about the age of 16, she worked in the hospitality industry in France. She married at the age of 23, and came to Australia with her husband and 2 children in 1973. They had 2 more children, before moving to Canberra in about 1979.

3. The plaintiff speaks fairly idiomatic English, although with a pronounced accent. She came to Canberra to manage the restaurant at the Cotter Reserve with her husband.

4. The marriage broke down soon after they arrived. She was left to manage the business and care for the four children on her own. She was forced to give up the job and concentrate on raising the children, supporting the family with miscellaneous part time jobs for about 6 years.

5. In 1986 she returned to full time work, running a coffee shop in Kingston with a partner. The partnership did not last, and she undertook a series of courses to fit her for secretarial work.

6. In early 1988 she obtained a position as a data processor, on periodical contract with the Attorney-General's Department. She hoped to obtain a permanent position in the public service as soon as it could be offered to her. She attended any training courses that were available.

7. In June 1988 she undertook, in addition to her clerical work, the management of the kiosk at the Cotter Reserve, which she was able to take on with the help of her second daughter, who by then was the eldest of her children living with her. The arrangement included the provision of rented accommodation at the Cotter Reserve.

8. She was generally in good health. In May 1988 she attended at the surgery of Dr Jones, her general practitioner, complaining of pain in the lower back. It seems that the doctor she saw on that occasion was his locum, Dr Ostberg. Her evidence was that she was given some tablets, which eased the pain, and it cleared up within a couple of weeks.

9. On 22 October 1988 she was driving home towards the Cotter Reserve, with three of her children in the car. She was wearing a seat belt. On a bend in the road a truck, being driven by the defendant in the opposite direction, came onto the wrong side of the road and collided head on with her car. The car sustained major damage.

10. The plaintiff was thrown violently forward until restrained by her seat belt, striking her knee on the dashboard. She did not lose consciousness.

11. She and one child were taken by ambulance to Woden Valley Hospital. She felt dizzy and pain all over, especially in the knee. She was having difficulty in breathing.

12. At the hospital x-rays were taken of the chest, sternum and knee. They did not disclose any abnormality. The plaintiff was given pain relief, and was allowed to be taken home.

13. She stayed at home in bed, being cared for by her daughter and friends, until on 28 October 1988 she was able to attend Dr Jones.

14. She complained to Dr Jones of pain in her neck, sternum and knee, and inability to concentrate. He noticed her very stiff gait, the large bruising over her chest wall and abdomen, and over her knee. There was tenderness in the posterior neck muscles. He prescribed rest, heat and the use of a cervical collar.

15. She returned to the hospital on 1 November 1988, complaining mostly of chest pain. The seat belt pattern of the bruising across her trunk was noted. An ECG was performed, which was normal. She was given more pain relief.

16. She returned to consult Dr Jones, seeing him twice in November and three times in December 1988. On 5 December 1988 he noted tenderness of the lower spine. The knee continued to trouble her, and the neck pain was persisting and radiating to the back. The chest was still tender. He commenced anti inflammatory medication. On 30 December the continuing pain and decreased movement of the neck moved him to prescribe physiotherapy.

17. The physiotherapist fitted a neck brace, which she wore for almost six months. On 13 February 1989 the physiotherapist reported to Dr Jones that there was difficulty in mobilising the neck because of pain. On 10 March 1989 he found only 50 percent rotation, 30 percent flexion and 10 percent extension movement in the neck. Towards the end of April 1989 neck pain had improved, but there was still a complaint of burning and stiffness of the thorax, and stiffness and tenderness of the lumbar spine. She was advised to continue with mobilisation.

18. At the end of May most of the discomfort was in the lower cervical spine and interscapular area. She was no longer wearing the collar, but the neck was still painful at the extremities of movement. She last consulted Dr Jones on 10 July 1989, her neck pain having been exacerbated by a medical examination. She was reassured and advised to continue with heat and analgesia.

19. In about December 1988 she had been required to leave the residence at the Cotter, as she had been unable to get back to work. She moved to Farrar. When she had stopped wearing the neck brace she was able to drive again. Until then she had to rely on friends to drive her, and taxis, to go to the doctor and physiotherapist.

20. She first returned to work on 22 August 1989, for about 4 weeks, then for 10 weeks from 12 October 1989, and for 5 months from 30 April 1990.

21. Dr Long, consultant physician, examined her for the defendant on 25 May 1990, more than 18 months after the accident. She seems to have told him that she had just resumed work on 11 May 1990. Her complaints were:

- Stiff neck, which sometimes woke her at night.
- Uncomfortable back, being the entire area over the back of the
chest.
- Pins and needles in both upper arms.
- Tenderness of mid sternum on pressure.
- Occasional locking of the right knee in the bent position.

22. Since returning to work her neck and back down to T12 had been very stiff and sore.

23. X-rays taken in October 1989 were reported as showing a normal cervical and lumbosacral spine.

24. On examination Dr Long found a full range of movement of the neck, but tenderness over the spine from C2 to T6. There was tenderness of the neck and trapezius muscles. There were no neurological deficits. He did not record any complaint of discomfort in the lower lumbar spine.

25. Dr Long's diagnosis was of whiplash injury, and he was satisfied that her persisting pain due to muscle spasm was genuine. He expected her to be able to continue at work with decreasing discomfort, and no long term disability.

26. She had returned to work on temporary public service contracts arranged through Templine, and was able to handle it because it was generally light and varied work, where she could move around at will. When she did have to sit still for long periods she suffered pain.

27. Her solicitors referred her to Dr Cassar, who saw her on 25 July and 1 August 1990, and carried out thermographic tests. Those tests suggested to him some cervical nerve root irritation, though no disc lesion. There was also lumbar spine pain with sciatic sheath tenderness but no sciatic irritation on stretching. He prescribed Naprosyn, with pain clinic treatment in the form of laser, acupuncture and massages.

28. He carried out further thermographic studies on 12 September 1990, which suggested to him pathology in the C6 and C7 areas and lumbo sacral area. Although treatment ameliorated the symptoms he thought she might still yet require cervical and lumbar spine fusion. CT scans taken at John James Memorial Hospital on 21 August 1990 had shown some abnormalities in the cervical spine, and a disc bulge at L4/5 which appeared to compromise the L5 nerve roots.

29. The records at the Patent Office show that during the period of her contract with that office she had considerable periods of absence on sick leave. That was one of the reasons why her contract was not renewed in October 1990.

30. She obtained work with the Department of Health for two weeks in early 1991 but found she experienced pain in the lower back. She was not offered more government work, and sought employment elsewhere. Late in October 1991 she obtained part time work at Woolworths, starting at 4 hours a day. The job involved constant lifting, which she was not able to do, so she asked for a transfer, and was given 4 hours a day standing at the check out. She suffered pain, but persevered with the job till the following January, when she found the pain too much.

31. She did not find more work in Canberra. In addition, her daughter wanted a special type of school training that was not available in Canberra, but was in Adelaide. She moved with her daughter to Adelaide. Although she has actively sought work there, she has not yet been able to find any.

32. Her own view is that she could manage 4 hours work a day, if it did not involve constant lifting, or remaining standing or sitting in the one place for the whole time.

33. Late in January 1992 the defendant referred her for a multi disciplinary functional and vocational assessment at AAC Assessability Centre. There she was examined by Dr Dickson, rehabilitation consultant, Mr De Giovanni, vocational psychologist, and Mrs Hausstock, physiotherapist. Their detailed joint report is in evidence, and Dr Dickson and Mr De Giovanni gave evidence and were cross examined.

34. In their assessment the plaintiff was not exerting herself properly in the assessment tests, and she had made a good recovery from the injuries she received in the accident. Her present major complaint of back pain appeared to them to have arisen at about the time she consulted Dr Cassar in July 1990. They thought that she might well have some degree of back pain which could cause intermittent discomfort, but it was not possible to attribute her lower back symptoms or the findings on the CT scan of August 1990 to the motor vehicle accident.

35. They assessed her as being capable of resuming her pre injury occupation of data processing operator, clerical officer, or a number of other occupations within the clerical and hospitality industries, indicated by the computer operated database used by the Centre.

36. Dr Cassar re-examined her for her solicitors on 5 June 1992. The cervical injury had stabilised to the point that there was no expectation of long term incapacity or additional treatment other than regular exercises and occasional anti inflammatory medication.

37. He thought that there was stable permanent incapacitation of the L4/5 lumbar disc, with L5 nerve root involvement, causing constant pain, and interfering with her ability to undertake full time clerical work.

38. Dr Corry, rehabilitation specialist, examined her at the request of her solicitors on 3 and 10 September 1992, and carried out low back dynamometry on a computer controlled machine used in his practise. Unfortunately Dr Corry was ill when the action came on for hearing, and he was not available for cross examination.

39. In the history that she gave to Dr Corry she claimed that she first noted her back pain some 3 to 4 weeks after the accident. Dr Corry noted the record made by Dr Jones of tenderness in the lower spine at his examination on 5 December 1998. On examination he found her lumbar spinal movements were full in rotation and lateral flexion, but forward flexion was limited to fingers reaching mid calf level. Straight leg raising was to 80 degrees in both limbs, and there were no neurological disturbances. Movements of the cervical spine were full and pain free. The dynamometer confirmed a moderate level of low back dysfunction.

40. Dr Corry commented on Dr Dickson's findings, pointing out the history of complaints about the low back to Dr Jones in December 1988, and presumably prior to the radiography in October 1989. He thought that a causal relationship between the accident and the low back symptoms was probable. The whiplash trauma to the cervical region and chest compression were no longer causing a significant disability.

41. Dr Corry also made comments in his report which tended to suggest that his support for the Key Assessment method used by AAC was less than total. His report was referred to AAC. They rejected his criticisms, and adhered to the view that there was no causal link between the accident and the pain in the lower back.

42. This was the central fact in issue in the case.

43. The plaintiff impressed me as a witness of truth. She was, however a poor historian, and her memory for dates was most unreliable. Her failure to detail all her complaints to doctors in meticulous detail should be seen in this context. There was nothing in her previous work history to suggest that she was other than a willing worker. She had a great need for income from work, and I think she went back to work as soon as she could. Her time with Woolworths demonstrates to me not that she had recovered, but that she was prepared to work even though suffering. The CT radiography of August 1990, reported on by Dr O'Neill, demonstrated apparent compromise of the lumbar nerve roots. I agree with Dr Long that she does have the symptoms that she describes. She naturally attributes them to the accident.

44. But I must be positively persuaded by the medical evidence that the causal link has been established before awarding damages on that basis.

45. The principal attack on the hypothesis put forward on the plaintiff's behalf came from Dr Dickson, of AAC. He is very well qualified in rehabilitation medicine, and adhered forcefully to his opinion in cross examination.

46. However, I fear that I must express my concern at what appeared to me to be a markedly partisan approach to the case on the part of Dr Dickson and, to a lesser extent, that of Mr Di Giovanni. Whether this resulted from a perception that their methodology was under attack from Dr Corry's comments, or from the depth of their disagreement with the utility of Dr Cassar's thermography, or from some other factor, I do not know. But there seems to me to be some inconsistency in conceding that the plaintiff does now suffer from lower back pain, not caused by the accident, but demonstrated by CT scan, whilst asserting that she is fully fit for her pre injury occupation. I am satisfied on the evidence that she would suffer much more than the mere "some intermittent low back discomfort in the performance of these occupations" described by Dr Dickson. I do not think that she was consciously faking her performance on her tests by AAC, but even allowing for a failure to co-operate fully the results were only conditionally valid, and in Mrs Hausstock's report demonstrated no more than a capacity for work for 3 hours a day, if permitted to change from standing to sitting at intervals.

47. I do not think I need to decide the respective merits of Key Assessment and Dynamometry, or the scientific utility of thermography.

48. I prefer the common sense approach of Dr Long, whose reports were tendered by the defendant. I use that description respectfully, and in the knowledge of his skill and experience as a consultant physician.

49. In his report of 1 October 1991 he commented:

"Her main complaint now is the pain in the back. I am sure that
this is genuine but I think there must be considerable doubt as to
whether it can be blamed on the accident when she did not mention it to
me in May 1990 and it is also not mentioned in the letters of Dr
Richard Vance of May 1990 and Dr Colin Andrews of June 1990. If it has
been an ongoing complaint then one would certainly accept that it could
be connected with the accident, that it will continue to give her
trouble and might even eventually require surgery. If on the other
hand this is really the first mention of lower back then I think it
would be very difficult to accept that the genuine problem is due to
the accident occurring in October 1988."

50. The reports of Dr Vance and Dr Andrews to which he refers were not in evidence.

51. But, as Dr Corry noted, the plaintiff did complain of lower back pain to Dr Jones, who observed tenderness over the lower spine, on 5 December 1988, less than 2 months after the accident.

52. The plaintiff told Dr Dickson that she began to notice the lower back pain three to four weeks after the accident. Even accepting that history as accurate Dr Dickson would not attribute the onset of lumbar pain to the trauma of the injury. He would allow the masking of the lumbar pain by the other injuries to have lasted only one week.

53. Making full allowance for the fact that the defendant was denied the opportunity of cross examining Dr Corry, I prefer his opinion that the history does point to the probability of a causal relationship. It is consistent with the view of Dr Long, and has greater persuasive force to my lay mind. The accident was certainly sufficiently violent to have caused such damage to the lower back. Not only was there the complaint to Dr Jones of low back pain on 5 December 1988, but in April 1989, when the neck pain had improved, there was the continuing complaint to him of stiffness and tenderness in the lumbar spine.

54. On the other hand I am not persuaded that the injury is as bad as described by Dr Cassar in his report of 12 September 1990. There is really no evidence at all to suggest that cervical fusion would even be useful, let alone be required. Nor do I think it likely that lumbar spinal neurosurgery will be called for, though Dr Long thinks it at least a possibility. Dr Corry did not suggest it, and it must be taken into account as no more than a remote possibility.

55. During the hearing it became moderately clear to me that there was no significance in the complaint of her back pain that the plaintiff made to Dr Ostberg in May 1988. The complaint referred to the sacro iliac joint, which is not the focus of any of her present complaints.

56. It is also clear that the plaintiff was mistaken in informing Dr Long that x-rays demonstrated three broken ribs and a fractured sternum. The injury to her chest wall was severe, but there is no reliable evidence of any fracture.

57. In summary, the plaintiff was subjected to a violent head on collision, which caused immediate soft tissue injury to the chest and abdomen and cervical spine. There was also an injury to the right knee. As the initial shock of those injuries wore off she began to notice back pain, extending to the lumbar area.

58. She spent a week in bed, and months of acute discomfort from the neck injury, for which she underwent physiotherapy. The neck symptoms then began to improve, to the extent that she was able to return to work about a year after the accident, for intermittent periods.

59. The neck continued to improve slowly, but she noticed more the pain in her lower back, which by August 1990 was attributable to disc injury shown on the CT scan. That pain interfered with her ability to work, and she has still not found work within her capacity, which I agree is for about 4 hours a day, if she is able to move about.

60. The neck pain will be of minimal significance in the future. The back pain can not be expected to improve, and may well get worse. There is a possibility, but no more, that she may eventually come to surgery.

61. For her pain and suffering I award $40,000, of which I attribute $15,000 to the future. Interest on the past component on the conventional basis amounts in round figures to $2,100.

62. On the basis of the findings that I have made, the defendant concedes out of pocket expenses amounting to $7,135.25. The amount claimed for Dr Corry is part of the claim for costs, and there is no evidence about the other amounts referred to in argument. I allow $7,135.25 for out of pocket expenses. There is no evidence on which to base a claim for interest on that sum.

63. Counsel for the plaintiff in argument made submissions about past loss of income which were based on a figure of $317.00 a week. It is clear from Exhibit 2 that that figure is a gross amount, and that the nett sum is that set out in the particulars, namely $269.00 a week.

64. The contract on which she was employed at the time of the accident had until 4 November 1988 to run. She had 3 days sick leave on full pay, and was on sick leave without pay, as a result of the accident, for 7 working days to that expiry date.

65. It is probable, but not certain, that in the light of her employment history and her attitude to work, had the accident not happened, she would have been in fairly constant employment on periodical contracts, and might possibly have obtained a permanent position in the Public Service. Exhibit G shows that between 13 October 1988 and 15 August 1991 the gross salary for the position she held increased from $317.16 a week to $392.36 a week. I was not assisted by any attempt to set out the net figures. Assessment of this item of her claim is not therefore a matter of simple calculation.

66. A starting point for the assessment is the total of $269.00 a week from 4 November 1988 to the date of this judgment, which is $59,295. To that there must be added the loss of the 7 working days before 4 November.

67. From it there should be deducted her actual earnings. But the evidence did not condescend to details of what they actually were.

68. Exhibit F shows that she worked for the Department of Primary Industry from 22 August 1989 to 15 September 1989, for the Department of Defence from 12 October 1989 to 21 December 1989, and for the Patents Office from 30 April 1990 to 28 September 1990. There is no statement of her gross or net salary over those periods. For the purpose of this judgment therefore I use the same figure of $269.00 a week which gives a sum of $9,415 in round figures.

69. Then there was the employment with Woolworths. There was no real evidence even of the dates of that employment, let alone the rates of pay. The best the plaintiff could manage was demonstrated in the transcript as follows:

"MS BURTON Did you look for other work?
PLAINTIFF Yes, I did.
MS BURTON Did you in fact, obtain some work outside the
government area?
PLAINTIFF Yes.
MS BURTON And what was that?
PLAINTIFF At Woolworths.
MS BURTON Do you remember, firstly, when that was?
PLAINTIFF I think it was late in October 1990 - I am
not exactly sure when it was.
MS BURTON Or 1991, could it have been 1991?
PLAINTIFF Yes, 1991.
MS BURTON I think if you left the Department of Health
in March 1991, Woolworths would be after that,
would it?
PLAINTIFF Yes.
MS BURTON Now, what was the position - what work were
you employed to do at Woolworths?
PLAINTIFF They put me in the produce department. I
said nothing. I said, I'll see how it goes and
try to do it and it was involving a lot of heavy
lifting and I could not cope with it.
MS BURTON How many hours were you employed to work per
day when you first went for the job?
PLAINTIFF Four hours.
MS BURTON Four hours a day?
PLAINTIFF Yes, four hours a day.
MS BURTON Did you manage the first four hours?
PLAINTIFF I managed the first week, and as I noticed it
was particularly heavy lifting, I ask them for -
transferring me at something where I will not have
to do heavy lifting, and I explained to the
manager what was my problem, and he put me on the
check-out, working a certain amount of hours -
four hours.
MS BURTON Four hours a day on the check-out: standing
up or sitting?
PLAINTIFF Standing up.
MS BURTON And how did you cope with that?
PLAINTIFF With a lot of difficulty, and I really tried
to keep it on but it was very painful because my
back was getting very stiff to always standing up
and just doing the same repetitive movement and
scanning the things.
MS BURTON So did you continue to work there?
PLAINTIFF I continued until early January.
MS BURTON January of what year?
PLAINTIFF I'm sure it was '91, January '91.
MS BURTON Well, how long in total did you work as a
check out at Woolworths for four hours a day?
PLAINTIFF Several weeks.
MS BURTON Several weeks?
PLAINTIFF Yes.
MS BURTON Yes. Do you remember what you earned in that
period?
PLAINTIFF No, I'm not sure.

70. I must protest strongly at such slipshod presentation of a plaintiff's case. There can be no excuse whatsoever for failing to obtain from a firm such as Woolworths or from the relevant Departments, the accurate details of the money earned during those periods. Counsel for the plaintiff in argument (p.133) suggested a time of 11 weeks at Woolworths which she thought she obtained from the Statement of Particulars, but that document makes no mention of any post accident employment other than a period of 11 weeks with the Attorney-General's Department, a statement which is clearly contradicted by Exhibit F.

71. Counsel for the defendant did not descend to calculation to assist me either, taking the view that it was not relevant because the lower back injury was not caused by the accident.

72. This is the sort of detail that should have been attended to at the listing hearing. If I am wide of the mark in assessing damages the solicitors for the parties must share the blame for not ensuring that the case was properly presented. In the conduct of this case neither the Statement of Particulars nor the listing hearing achieved their purpose, a fact which to my mind should be reflected in any costs order made between the parties. I propose to hear counsel's submissions before I decide on the form of an appropriate order for costs.

73. A period of about 11 weeks would be consistent with her vague recollection of working with Woolworths from late in October some year till early January the next, and is probably the best estimate to be gleaned from what is loosely termed the evidence in the case. Eleven weeks at $269.00 gives $2,959. The total deduction for actual earnings is therefore of the order of $12,374, giving a starting point calculated as follows:

7 working days to 4 November 1988 $ 413
4 November 1988 to date 59,295
59,708
LESS earnings 12,374
$47,334

74. That figure should be increased by some amount because of the increases in rates of pay over the period.

75. On the other hand, it should be discounted on account of the possibility that the plaintiff might not have obtained continuous employment over the whole period, and also that even had the accident not happened she might have moved to Adelaide for her daughter's schooling and lost some employment time on that account.

76. I am not able to give much greater weight to one set of those considerations than to the other, and therefore award a round sum of $47,000 for past loss of earnings from clerical employment.

77. There was also a loss of the weekend money she earned at the Cotter. There was no challenge to the period claimed of 2 years. The plaintiff's oral evidence was that she was paid $220 a week and she had to pay her daughter out of that sum. At first she said she had to pay her daughter half, then she said, "Depending on how long she was working. $50.00 or $60.00 a week I think. I'm not sure. I can't remember very well." The tax stamp sheet, Exhibit C, in fact shows a net payment of $246.80 a week. Counsel submitted in argument a claim of $160.00 a week, which is as good a guess as any I could make, giving a total loss on this account of $16,000, again in round figures.

78. The total loss of past earnings is therefore $63,000. Interest on that sum for the period at 8 percent in round figures comes to $21,500.

79. Counsel for the plaintiff submitted that I should award damages for loss of future income earning capacity by allowing a discounted sum on the basis that it is not realistic to expect her to get back to the workforce.

80. Counsel for the defendant made no submissions on this aspect of the case.

81. Her present income earning capacity, had she not been injured, is claimed to be $350.00 a week. Exhibit G shows a gross weekly wage of $392.36 a week, so that I am prepared, in the absence of other evidence or submissions, to assume that figure to be close enough. She is now aged 46. She intended to work to retirement. The present value of $350.00 a week for 14 years at 3 percent is $209,314. For 19 years it is $265,417.

82. But I am not persuaded that the future is as bleak as counsel has submitted. I think she does have some residual income earning capacity. I think therefore that a substantial discount in addition to the conventional allowance for the usual contingencies is called for. But it is true that it will be difficult for her, with her restrictions, to find employment. As a matter of judgment I award a figure of $150,000 for loss of future income earning capacity.

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

Pain and suffering $ 40,000
Interest 2,100
Out of pocket expenses 7,135
Past loss of income 63,000
Interest 21,500
Future loss of income 150,000
TOTAL $283,735

84. I direct the entry of judgment for the plaintiff in the sum of $283,735.

85. I will hear counsel's submissions on costs after they have had the opportunity to peruse these reasons.