Ljuba Simic v Kerstie Gillis [1993] ACTSC 29 (5 April 1993)

SUPREME COURT OF THE ACT

LJUBA SIMIC v. KERSTIE GILLIS
No. SC433 of 1991
Number of pages - 7
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Pre-existing lower back injury - Exacerbation - Neck injury - No issue of principle.

HEARING

CANBERRA, 17 February 1993
5:4:1993

Counsel for the Plaintiff: F. G. Parker

Instructing Solicitors: Wood Fussell

Counsel for the Defendant: M. J. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $74,928.

DECISION

MASTER HOGAN 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 Bosnia on 2 July 1941. She came to Australia in 1968. She is married and lives with her husband and adult son.

3. In November 1986 she had been working for some years as a cleaner at Calvary Hospital. On 28 November 1986 while working there with a polishing machine she hurt her back. She was treated at the Casualty Department of the hospital and then came under the care of Dr Gavranic. His notes disclose that she had previously complained of low back pain in April 1985. When he examined her early in December 1986 he found tenderness over the mid thoracic spine, stiffness of the thoracic spine and pain on some spinal movements. Spinal x-rays taken at the Calvary Hospital were reported as showing some disc problems at T9/10 and L5/S1. She did not respond well to treatment, so he referred her to Dr Corry, rehabilitation specialist.

4. Dr Corry found her to be overweight. He expected that she should recover with local treatment and anti-inflammatory medication. He thought the main barrier to her recovery might be that she would not exercise her back sufficiently.

5. At first she seemed to be progressing well. However in March 1987, in addition to the pain in the thoracic area, she complained of pain in the lower back, which he did not relate to the work injury. He prescribed specific treatment for her lower back and a back education program. In July 1987 the pain was still fluctuating, but not as severe as previously and she was attempting more general activities. She was not, however, prepared to return to work, so that he continued her on physiotherapy and anti-inflammatory drugs. Her main complaint at that time related to the lower back.

6. Her solicitors sought a report from Dr Cassar. He found evidence of diffuse degenerative spondylitis with some nerve root irritation at a number of levels. He went so far as to say that there was total and permanent incapacity for work.

7. Dr Andrea examined her on 26 November 1987. He found distinct evidence of disc degeneration in the thoracic area and degenerative changes in the lumbo sacral region. He concluded his opinion by saying he thought it likely that she would not return to work as a cleaner. Of course for the purposes of this case it does not matter whether the incident with the vacuum cleaner could be blamed for that condition.

8. In December 1987 her general practitioner, Dr Gavranic, commented that her response to treatment had been singularly poor. He was surprised at the extent of her pain and inability to work given the minor injury involved. It seemed to him that she had fallen victim to chronic pain syndrome. In April 1988 he referred her to Dr Newcombe for advice.

9. Dr Newcombe found no focal neurological signs on examination. The pain of which she was complaining was in the low thoracic area on the left side and in the low lumbar region. A CT scan showed some disc bulging but no evidence of nerve root compression. He suggested that she continue with physiotherapy.

10. In her evidence she claimed that in the period shortly before the motor car accident she still had pain in the back but it was on and off. She claimed that by that time she was not taking any medication for her pain in the back besides Panadol. She also claimed that for two or three weeks she had been looking for a job as a cleaner. But in April 1988 she had changed her general practitioner to Dr Szmerler, who on 28 May 1988 had prescribed Feldene for her lumbo sacral pain and had given her a medical certificate for the period up to 31 August 1988.

11. Although she had settled her claim for compensation against her employer shortly before the motor car accident, I am not persuaded that she was actively seeking work in August of 1988, nor that it was likely that with her medical history she would have obtained anything more than sporadic part time employment as a cleaner if she had sought it.

12. On 23 August 1988 she was driving a motor car west along Ginninderra Drive at Belconnen when the defendant's motor vehicle, which had been travelling in the opposite direction, made a right hand turn, and the front of it collided with the right hand side of the plaintiff's car.

13. She was shaken up in the accident and has no real recollection of what happened to her at the time of the collision. She was taken by ambulance to Calvary Hospital where x-rays were taken and she stayed for observation for some hours. She had a headache and pain in the neck and lower back. She was issued with a cervical collar and allowed to leave for home with her husband.

14. When she got home she went to bed. She suffered mainly from headaches which the collar seemed to her to make worse.

15. Four days after the accident, on 27 August 1988, she consulted Dr Szmerler. He noted complaints of a painful jaw, painful neck, painful wrist, painful abdomen, lower back pain and a painful right foot. The cervical area was tender and restricted in movement. She was tender over the right lower ribs. He prescribed Lomotil, Feldene and Codral Forte.

16. Her symptoms were still persisting when he saw her on 26 October 1988, and an x-ray of the cervical spine demonstrated C4/5 spondylosis. He referred her to Dr Newcombe.

17. Dr Newcombe examined her on 15 November 1988. She was still complaining of headache and neck pain, which was more to the left side. She had paraethesia in both hands. There was also low back pain and pain in the right lower limb. Neck movements were greatly reduced but the plain x-rays were within normal limits. He expected the neck symptoms to resolve with time. He diagnosed a musculo ligamentous strain of the neck resulting from the motor vehicle accident.

18. Dr Newcombe at that time regarded the low back pain as relating back to the work accident. He expected it to continue. He noted that she had not worked for two years as a cleaner and commented, "I find it not possible to assess her work capacity other than in terms that she states she has not been able to work because of the pain."

19. She found that the physiotherapy that Dr Szmerler had advised did not help, and by the time she saw Dr Newcombe she had stopped wearing the collar because she thought it gave her severe headaches.

20. In April 1989 she was able to obtain part time work as a cleaner at Kaleen School. She and her son shared the work between 4 and 6.00 pm. When he decided to stop work in order to train for soccer on 20 June 1989 she decided that she could not work for 4 hours herself and gave the job up. She has not worked since.

21. Dr Andrea examined her for the defendant on 1 February 1990. There are some peculiarities in the dates recorded by him in the history that he took, but I think that they are quite easily explained by the plaintiff's inability to speak freely in English. She told Dr Andrea that her neck pains had not improved since the accident. He found movements of her neck restricted to about half the normal range. There was a diminished sensation down the right arm. He was not prepared to attribute any of her symptoms to the accident.

22. On 9 March 1990 Dr Spira, consultant neurologist of Sydney, examined her for the defendant. He was not impressed by the genuiness of her complaints. His opinion was as follows:

"Mrs Simic may have sustained some musculo-ligamentous strains in the
motor vehicle accident and one would have expected a complete recovery
soon after the event. Her ongoing head, neck and back pains are not
explicable in organic terms. At best these may represent a tension
syndrome although the signs demonstrated by Mrs Simic are clearly
functional suggesting a considerable elaboration on the patient's part.
Aspects of the physical examination appeared grossly contrived, indicated
that Mrs Simic is malingering." (sic)

23. Although none of the doctors whose reports were tendered were required for cross-examination, I do not accept that assessment of her by Drs Andea or Spira. In the light of what Dr Robson found on operation later in 1990, it is clear that at least some of her complaints, especially of pain in the neck, had an organic basis.

24. Dr Szmerler referred her to Dr Chandran who had a CT scan performed which showed a slight bulge of the C4/5 disc. He advised an MRI scan.

25. The defendant also arranged for her to be examined by Dr Stubbs, orthopaedic surgeon. When he saw her on 12 September 1990 he did not think that he could find anything on physical examination that pointed to any on-going significant neck injury. Rather, he found a whole collection of anomolies in the physical examination that suggested to him a great deal of exaggeration in her complaints. However he examined her again in October 1991 after she had undergone an operation by Dr Robson. He found her worse then than in September 1990, with quite positive objective signs. He concluded that her symptoms were real enough to her and that perhaps he had previously underestimated the problems in her neck. He adhered to his view however that her problems were not as gross as she claimed.

26. Dr Szmerler had referred her to Dr Robson, neurosurgeon, who saw her on 17 October 1990. He diagnosed marked degenerative change at C5/6 and to a lesser extent at C4/5. He advised surgery, to which she agreed.

27. On 30 November 1990 at John James Hospital, Dr Robson performed an anterior interbody graft at C5/6. He found the disc to be obviously ruptured. He decided against operation at C4/5.

28. After she recovered from the operation the pain eased for some months. On review in March 1991 Dr Robson noted that she had a pain in the leg from the donor site right down the leg and some ache in the arm and occasional headaches. However the headaches began to increase. By April 1991 the x-rays convinced Dr Robson that fusion of the neck vertebrae was solid.

29. In evidence she described her principal complaints at present as being in the lower back on the right side and in the neck, but principally it is the headaches that make her suffer the most.

30. In June 1991 she was examined again by Drs Andrea and Spira. She agreed with Dr Andrea that her neck had improved and that she had no arm problems, but she still had the headaches. He found her neck movements to be about fifty percent of the expected range. She had a 6 centimetre very tender scar on the right side of the front of her neck and a 6 centimetre scar on the front of the right hip bone with tenderness of the underlying bone. She was still suffering from back ache. He continued to doubt that much of the blame for her disability could be attributabed to the motor vehicle accident.

31. Dr Spira was not able to confirm what investigations had been carried out before Dr Robson's surgery, and was inclined to think that the neck surgery had been unnecessary. He also did not change his previous opinion.

32. On 15 July 1991 Dr Robson saw her with a good interpreter. He got the impression that her neck was "not too bad at all", but she was still getting headaches, for which he arranged for her to have physiotherapy. Her main problem was in the low back and leg where she was having increasing problems. On examination he found she was tender at about the L5/S1 level, ankle reflexes were not equal, and the S1 sensory area was reduced in acuity. He ordered a lumbar myelogram, which she underwent on 7 August 1991. It showed a bulge at L4/5, and a very narrow disc space at L5/S1.

33. Meanwhile Dr Szmerler had been noticing problems with her medication for hypertension, and referred her to Dr O'Connor at the Royal Canberra Hospital Cardiology Unit. He saw her on 13 August 1991. Her blood pressure was not then completely under control, and he made suggestions about changing the medication, but I do not think that her heart condition or her hypertension have any significance in this case.

34. On 19 August she had a discussion with Dr Robson about having an operation on the lower back, since the myelogram had confirmed an organic reason for her pain. She could not make up her mind, it seems, and Dr Szmerler sent her to see Dr Newcombe. He thought it was probable that she had disc herniation at L5/S1 in addition to the lumbar spondylosis. He thought it likely that she would need further investigation and possible surgery for the L5/S1 disc, to stop her sciatica and most of her back pain. She did not say in evidence that she intended to undergo the operation.

35. The reports of further examinations by Drs Stubbs and Andrea in late 1992 were not of much assistance to me in this case.

36. Dr Robson saw her last on 7 December 1992. In his opinion the picture was quite clear in the surgical sense, and I accept his exposition, but it does not really help me to decide the causation issues, which are central to this case.

37. On those issues I accept what Dr Newcombe reported, when he saw her on 29 November 1991. The complaints that she had made to Dr Corry were not clearly of sciatic pain, and neither were Dr Cassar's findings, to my mind, and the CT scan of April 1988 did not disclose any evidence of nerve root compression. There is no reason to suspect the history that Dr Newcombe recorded, and it is not contradicted by any of her treating doctors who had seen her in the interim.

38. I find that the accident of 23 August 1988 resulted in a musculo ligamentous strain of the neck, together with damage to cervical discs, for which she underwent the fusion operation by Dr Robson. That operation relieved much of the pain in the neck, but left her suffering from headaches. Because she is the sort of person that she is, she does not move her neck as much as she could, so that, to use Dr Robson's words, "What she is left with is a functional loss and I mean by that a dynamic loss in the function of the neck and I do not think there is any prospect that she will overcome this in the present circumstances." I do not think there is any real prospect that her neck will get better even when this case is concluded.

39. In the lower back she had a lumbar spondylosis which was already causing her pain and disability before the motor car accident. Although it was already bad enough to stop her from working the motor car accident made it worse, and more probably than not caused the lumbar disc herniation at L5/S1. For that she may need an operation, but it cannot be said that she will probably undergo it. Even if she does undergo the operation, it is not certain that it will significantly improve her condition, and it is probable that in any event she will continue to suffer low back pain to the extent that she will not be able to work again. She would probably not have worked to any great extent had she not had the accident. Having had the accident she will not ever again be able to work at all.

40. In those circumstances I do not think that I can assign a separate figure to her claim for loss of income earning capacity. I take it into account in awarding damages for pain and suffering and loss of amenity, for which I award $60,000, of which $20,000 relates to the future.

41. For interest on the past component of that element, on the conventional basis, I award $3,700.

42. The out of pocket expenses are agreed at $11,228.

43. I am not satisfied that her family provided her with any services that it would have been reasonable to pay for, or that, so far as housework was concerned, she was substantially able to do more before the accident than she could after it.

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

Pain and suffering $60,000
Interest 3,700
Out of pocket expenses 11,228
TOTAL $74,928

45. I direct the entry of judgment for the plaintiff in the sum of $74,928.