Patricia Florence Roberts v Tamie Marie Chapman [1993] ACTSC 65 (9 July 1993)

SUPREME COURT OF THE ACT

PATRICIA FLORENCE ROBERTS v. TAMIE MARIE CHAPMAN
No. SC642 of 1991
Number of pages - 3
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Back injury - Soft tissue - No issue of principle.

HEARING

CANBERRA, 29 March 1993
9:7:1993

Counsel for the Plaintiff: F.G. Parker

Instructing Solicitors: Gary Robb and Associates

Counsel for the Defendant: M. Robinson

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $23,887.75.

DECISION

MASTER HOGAN This is the assessment of damages for personal injury arising out of a motor vehicle accident on 18 May 1989.

2. The plaintiff is a married woman aged 50, employed as a shop assistant by David Jones.

3. She was a rear seat passenger in a car that was struck from behind by another vehicle while it was stationary at the intersection of Commonwealth Avenue and Coronation Parade. It was a violent impact. She was wearing a seat belt, and did not collide with any part of the car, but she was thrown about. She immediately felt pain in her back.

4. She was taken by ambulance to Woden Valley Hospital, where she was kept for observation. The hospital notes record a complaint of right lumbar and neck pain, and pain in the apex of the head. On examination there was pain and tenderness over the lumbo sacral area. There was a full range of painless neck movement. X-ray revealed no abnormality in the lumbo sacral spine. She was advised to rest in bed for 4 days and then consult her general practitioner if necessary.

5. She went home to bed. She found that she was more comfortable standing.

6. Two days later she saw Dr Rea, her general practitioner, with tenderness over the lumbo sacral region.

7. The accident happened on a Thursday. The following Monday she went to work, where she was employed as a casual worker for four hours a day in the liquor department. Although her back and neck felt fragile, she was able to handle the relatively light work involved. While she remained in that department she did not lose any time from work.

8. On 2 June 1989 she again saw Dr Rea, who noted tenderness over the sacro iliac joints and pain in the upper thighs. He recommended physiotherapy, which she had on three occasions.

9. In November 1989 she obtained a full time position at David Jones, for which she had applied before the accident. On the basis of her experience in the liquor department she thought she would be fit enough for the job. She was assigned to the manchester department, which involved considerably more bending, stooping, lifting and bending over paperwork.

10. Her evidence was that she then noticed that her neck ached, and she began to get headaches again. Her solicitors arranged an examination by Dr Owen White, consultant neurologist.

11. She told Dr White that her headaches had been severe for about a month after the accident, but had resolved. Her only major complaint to him was about pain in the right hip. He found tenderness on the left sacro iliac joint and muscular spasm at L4 and L5, on the left. There was pain on external rotation of the hip on the right.

12. He diagnosed ligamentous and joint injury to the sacro iliac joints more on the left than the right, and some aggravation of minor osteo arthritic degeneration in the right hip. He did not recommend formal treatment, but suggested anti inflammatory medication.

13. The deterioration in functional joint performance on the right hand side was, he thought, significant and unlikely to recur. He did not think her working capacity was materially affected, but his prognosis was guarded, particularly about the right joint pain.

14. She continued to have difficulty at work. Her headaches became worse. She consulted Dr Pryor, a general practitioner, who prescribed Feldene, and conducted some manipulation. He also advised physiotherapy. From August 1990 she was treated by Barbara McKenzie, physiotherapist, who gave her a neck collar, which she still uses sometimes. From February 1992 she was treated by another physiotherapist, Mr Russell Jones, who noted complaints of posterior neck and head pain with radiation to both temples, intermittent and aggravated by sitting, especially driving. The low lumbar33 pain radiating to the hips was constant, and also aggravated by sitting. He administered manipulation of the cervical, thoracic and lumbar spine, heat, traction and exercises, over six occasions. Her condition settled well, though not completely.

15. On 24 February 1992 she was seen by Dr Andrews, neurologist, for the defendant. She complained to him of ongoing headaches, stiffness in the neck, without much pain, and occasional low back pain. He found no neurological deficits or restriction of movement. He thought the injuries were mild, and he was not prepared to attribute her ongoing symptoms necessarily to injuries received in the accident.

16. None of the doctors were called to give evidence or be cross examined. I appreciate the sensible caution in Dr Andrews's comment. But the plaintiff did not seem to me to be exaggerating in any way, and I am persuaded that such disability as she does complain of was the result of the accident.

17. Dr White saw her again in June 1992. There was little change except for longer pain free periods. He did not think any therapy beyond intermittent physiotherapy was called for. She was coping with a relatively normal life with some discomfort. Deterioration with time was possible.

18. In November 1992 she was able to arrange a change of duties at work, when she moved to the ladies sportswear fashion department. Work was lighter there than in the manchester department.

19. In December 1992 Dr Andrews reviewed her for the defendant. Again he found no neurological deficits, restriction of movement or localised tenderness. He accepted that she had soft tissue injury to the neck arising from the accident, which gave intermittent trouble. Her condition is stable.

20. In February 1993 Dr White reviewed her. He also found her somewhat better than before, and his diagnosis is substantially the same as that of Dr Andrews.

21. In summary, the plaintiff was severely shaken up in the accident, and suffered moderate soft tissue injury to the neck and lumbar spinal areas. The neck symptoms did not become particularly noticeable until she started heavier work, but I accept them as having been caused by the accident. Her injuries caused her substantial discomfort, but the type of work that she engaged in was such that she did not lose any substantial time off work. Over about 4 years with some medication and a fair amount of physiotherapy, her condition has improved to the stage where she now has only intermittent discomfort in the neck and back and some headaches, relieved by Panadeine, but her condition is not likely to improve further to any marked extent. Her leisure activities are now restricted to a degree. She will continue to need medication and occasional physiotherapy treatment. The cost of continuing treatment is not capable of calculation, and I take it into account in assessing general damages.

22. She also needed some assistance from members of her family for a short time after the accident. Later there was simply a sensible arrangement of household duties. A separate award on the principles of Griffiths v Kerkemeyer was not sought, but I take those facts into account in assessing general damages.

23. For her pain and suffering and loss of amenity I award $22,000, of which about $7,000 would relate to the future. Interest on the past component on the conventional basis amounts to $1,240. The out of pocket expenses amount to $1,323.75 of which $676.00 has been paid by the defendant's insurer. I include only the balance of $647.75 in the judgment.

24. I direct the entry of judgment for the plaintiff in the sum of $23,887.75.