Louise Ann Hogden v Darren Raymond Downey [1993] ACTSC 78 (16 August 1993)

SUPREME COURT OF THE ACT

LOUISE ANN HOGDEN v. DARREN RAYMOND DOWNEY
No. SC205 of 1990
Number of pages - 10
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Neck injury - Cloward's procedure - Loss of business as typesetter - No issue of principle.

HEARING

CANBERRA, 19 and 20 May 1993
16:8:1993

Counsel for the Plaintiff: R. Mildren

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: J. D. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

I direct the entry of Judgment for the plaintiff for $238,577.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 10 march 1986. Liability is admitted.

2. The plaintiff was born in 1950. After obtaining her school certificate she did a secretarial course and began work as a stenographer. Later she obtained employment as a typesetter, and became skilled in the preparation of material for printing.

3. In 1970 she married, and moved to Canberra, where she continued to work as a typesetter, and for some time as a manager of a firm called Canberra Typewriting and Cash Registers.

4. She took time off from work when her children were born, in December 1975 and July 1977.

5. After then doing some part time work, in 1979 she set up in business on her own account, though at first in partnership, as a typesetter and layout artist, registering the name "Belconnen typesetting" in 1980.

6. She was successful in that business, and extended her home to accommodate the machinery and equipment. In 1983 there was enough business for her to need assistance, and she employed a Mrs Judy Boyd, at first part time, and then full time.

7. Mrs Boyd gave evidence of the plaintiff's skill and dedication to her craft, and her capacity for working long hours before the accident the subject of this action. Mr Kelly, a proprietor of a printing business, and Mr Ross, an officer of the Australian Bureau of Statistics, also gave evidence that they used the services of her business, being satisfied both with the quality of her work and her ability to meet urgent deadlines.

8. She was in good health. When younger she had played basketball at State representative level. In more recent times she was playing squash with a male friend.

9. On 10 March 1986 she was driving her car in Macarthur Avenue when the defendant failed to give way at an intersection and drove into her path. She was wearing a seat belt. She was thrown violently forwards. Her car continued on for some distance before stopping. She did not lose consciousness, but the door had to be opened from the outside, and she needed assistance to get out of her car. She had difficulty breathing and was unable to sit down.

10. She was taken by ambulance to Royal Canberra Hospital, where she was admitted to Casualty at about 2.30 pm. The hospital recorded her complaints of pain in the right shoulder, central chest, left lower chest and neck. There was severe pain on palpation of the costal ribs, and tenderness at the C2-C4 region of the neck. There was a seat belt bruise over her abdomen.

11. X-rays of her chest, sternum and cervical spine did not reveal any fracture. There was slight narrowing of the C5/6 disc space consistent with early degenerative change. No other abnormality was detected. On return from x-ray it was noted that she had severe pain in the right loin, and very tight and tender paravertebral muscles. She gave evidence of experiencing very severe pain while the x-rays were being taken. She was then given intravenous injection of valium and pethidine and kept under observation for some hours, and discharged shortly before 6.00 pm.

12. She spent a very uncomfortable night, and the next day she was seen at home by Dr Berenson, who had been her general practitioner since 1976. He noted a haematoma on the right side of her neck and across the lower abdomen. Her neck was particularly painful and all movements were restricted. She was extremely tender over the sternum. He ordered further x-rays. The lumbosacral spine was reported as normal. There was evidence of a linear fracture of the sternum. He referred her to Mr Rumore for physiotherapy.

13. Her husband took time off from work and cared for her. She was in such pain that she remained in bed for some weeks.

14. She received treatment from Mr Rumore about twice a week for some time. By 21 May 1986 Dr Berenson was able to report that the physiotherapy had mobilised her neck with good clinical results. It was still too soon for him to commit himself to a firm prognosis.

15. She did not improve greatly. She noticed pain in her right toe. There were signs of a hernia in the abdomen. The neck pain radiated to both arms, down to the hands on occasions. Dr Berenson referred her to Dr Newcombe, neurosurgeon, who first saw her on 6 August 1986.

16. He saw recent x-rays revealing disc space narrowing, and a CT scan which indicated a C5/6 disc degeneration with disc space narrowing and osteophyte formation. Tests administered by Dr Andrews suggested involvement of the C6 nerve root.

17. Dr Berenson also referred her to Dr Scott Findlay to investigate the abdominal pain. He diagnosed a hernia, which could have been caused by the accident, although he doubted that it had been.

18. Dr Newcombe saw her again in December 1986. Her symptoms were no better. He advised surgery.

19. On 20 March 1987 she underwent surgery under general anaesthetic at John James Hospital. Dr Scott Findlay repaired the hernia successfully. Dr Newcombe performed a Cloward's fusion at C5/6, taking bone for the graft from the right iliac crest.

20. When Dr Newcombe saw her on 29 April 1987 she told him that her headaches had gone, there was no complaint of arm pain, and only some residual shoulder ache, which he expected to settle.

21. He also noted however that she complained of right lower lumbar pain in the region of the sacro iliac joint, which had been present since the accident. He attributed this to joint strain, and expected it to gradually improve.

22. Some months elapsed after the accident before she could return to work. Mrs Boyd carried on as best she could. After about three months she started to operate a keyboard, experiencing pain when she did so, and being able to persevere only for an hour or so. She could last longer with painkilling medication, but the drugs affected her concentration.

23. After the operation in 1987 she was in hospital for about a week, and remained mainly in bed at home for about a month after that. Then she gradually returned to longer periods at work.

24. She began to notice problems with her speech, and constant coughing to clear her throat.

25. Dr Connelly, neurosurgeon, examined her for the defendant on 25 January 1990, almost four years after the accident. She gave him a history consistent with her evidence and that of Drs Berenson and Newcombe. She acknowledged the improvement after the operation. On examination he found some restriction of neck movement, but no neurological deficits. He thought that she had a degenerative lesion of the C5/6 disc space which had been aggravated by the accident. Response to treatment had been partial. He thought she was fit for her then current employment, which was part time. He had further x-rays done, and saw her again in April 1991.

26. Dr Connelly gave evidence by telephone and was cross examined. He thought that the degenerative condition of the plaintiff's cervical spine was such that, even though she was free of any symptoms before the accident, she might well have required surgical treatment at some time in later life, and some other trauma might well have made the neck symptomatic. In cross examination he acknowledged that she might also have been free of symptoms for the rest of her life, but thought it more probable that she would have developed symptoms.

27. I think that it is significant that he noted a significant element of depression at the time of his examination in April 1991.

28. Dr McEwin, a specialist in rehabilitation medicine, also examined her in April 1991 for the defendant. Again she gave a consistent history. He noted in detail her complaint of lower back pain at about the L5 level. He saw no evidence of depression.

29. On examination he found some restriction of neck movement. Lower body movements were normal, and he found no evidence of sacroiliac pathology.

30. His diagnoses were as follows:

"DIAGNOSES:
1. Soft tissue injury to the cervical spine.
2. Degeneration of the disc and joint at C5/6 in the cervical
spine which had been relieved by decompression of the disc
and fusion of this joint.
3. Herniation of the right rectus abdominis muscle resolved by
surgery.
4. Soft tissue injury to the lower lumbar spine.
5. Osteoarthritis of the right great toe.
6. Soft tissue injury to the right knee which has now recovered.
7. Fracture of the sternum."

31. His comments on the relationship of those injuries to the accident were as follows:

"RELATIONSHIP TO THE MOTOR ACCIDENT OF 10.3.86:
As mentioned above the x-ray evidence shows that the degeneration
at C5/6 preceded the motor accident. The injury to the neck at
the motor accident would have been a soft tissue injury which
would have continued for a period of up to 10 or 12 weeks.
Subsequent pain in the neck has been due to the degenerated disc
at C5/6 which has been rectified by surgery. She still has some
pain in this area of the neck as one would expect following the
operation and also recognising that there are degenerative changes
in the C5/6 region which would lead to continuation of pain.
I do not believe that this continuing incapacity in the neck or
the symptoms therefrom are related to the motor accident.
The herniation of the abdominal muscle apparently occurred in the
motor accident as did the soft tissue injury to the lower lumbar
spine. She also had a soft tissue injury from the accident to the
right knee but this has recovered.
The fracture of the sternum occurred in the accident. It has
healed and I consider no incapacity remains.
She has pain in the right great toe and x-rays show that she has
degenerative osteoarthritis in the joint of this toe which would
lead to her pain. If she stubbed this toe in the motor accident
as she thinks she may have, this would have aggravated this pain
for a period of two or three months but continuing symptoms are
due to the natural age related degeneration occurring in this
joint.
Her history is reasonably consistent on medical grounds. She says
she is not treated for other conditions except asthma and eczema
which are satisfactorily treated. She denies prior or subsequent
injuries except those mentioned in the above history."

32. On her fitness for work and prognosis he reported:

"INCAPACITY:
She is unfit for heavy work particularly with heavy lifting or
working in a flexed forward position because of the degenerative
changes in her neck which preceded the motor accident.
From the motor accident itself she has very little incapacity
although she may be well advised to avoid heavy work with heavy
lifting, because of the continuing symptoms from the soft tissue
injury to her back. However, incapacity from her lower back is
not great.
Taking the injuries from the accident alone she is fit for all
medium and light work.
The restrictions she has in her housework and other activities are
mainly due to the pre-existing pathology in her neck.
PROGNOSIS:
She will have increasing symptoms from her neck as the
degenerative changes increase as she ages. Her asthma should
remain under good control as should her eczema. She should
gradually recover from the soft tissue injury to her lower lumbar
spine. She will get increasing symptoms in right great toe as the
osteoarthritis increases with the passing of years.
PERMANENT IMPAIRMENT:
There is a degree of permanent impairment from the disc lesion and
resultant fusion of the cervical spine which would be assessed by
the American Association's Guides to the Evaluation of Permanent
Impairment as 15% of the whole person.
There is no degree of permanent impairment resulting from the
motor accident."

33. Dr McEwin also gave evidence and was cross examined by telephone. He noted her admission to him that she had already experienced some neck discomfort before the accident, and he also thought that, even without the accident, she would at some stage have developed more neck pain because of the degenerative changes shown on the x-rays. Her work, which involved flexion of the neck, would have increased the probability of neck pain. He thought that the symptoms would certainly have come at some time, and would probably have come in about four or five years time. He acknowledged in cross examination the possibility that the accident precipitated the pain and necessitated the operation, but did not resile from his opinion that the effects of the accident were largely spent within a relatively short time.

34. Dr Newcombe had further x-rays done and reviewed her in September 1991. She was managing on the whole, but she still had neck pain radiating to the arms. He found considerable restriction on movement of the neck. She was suffering from anxiety. She was concerned that she could not continue with the typesetting business, which was running down. She undertook some part time work as a Nutri-Metics Consultant. Judy Boyd ceased working for her at the end of 1991, because of the lack of work.

35. Dr France Rohan, ear nose and throat specialist, saw her in October 1991. She had an uncontrollable cough. On examination he found that her vocal chords did not move normally. A CT scan and tomogram confirmed the abnormality. He considered that her larynx was injured in the accident, and that the Cloward's operation magnified the initial damage.

36. Dr Vance examined her for the defendant in February 1992. He could find no abnormality in the throat.

37. Dr Rohan examined her again in April 1992. He also referred her to the Sydney Voice Clinic. Her voice had improved, which he expected, but on clinical examination there were still signs of some pathology. He commented on the relationship between the operation of the larynx and emotional distress, particularly in female patients. Drs Vance and Rohan did not give oral evidence, but it is clear that Dr Rohan's opinions are to be preferred, because of his specialist knowledge and the extra clinical tests that he had performed.

38. During 1991 she did not seek treatment from Dr Berenson very often because she felt she could not afford it.

39. In November 1991 she was referred to Dr Tharion, cardiothoracic surgeon, because of the continuing pain over the sternum. X-rays and a bone scan did not show any abnormality. She received some steroid injections. On review in January 1992 she was feeling better, and there was only minimal tenderness. He thought that persisting pain might require intermittent injections, and if they failed an operation to excise damaged costal cartilages might be required. I consider that operation as only a possibility, which I take into account in assessing general damages.

40. Dr McGrath, rehabilitation specialist, examined her in November 1991 at the request of her solicitors. His conclusion was as follows:

"Conclusion:
1. Louise was involved in a motor vehicle accident on 10th March
1986, during which she sustained several injuries, including
injuries to her right big toe, abdomen, sternum, neck, lower
back and larynx. There is radiological evidence of
pre-existing cervical spondylosis, which from historical
continuity, appears to have been aggravated leading to a
surgical procedure on 20th March 1987. A concomitant hernia
operation was performed on the same day.
2. As a result of this motor vehicle accident, there appears to be
pain disability with respect to the neck region, lower back
region and right big toe. I believe that in all probability,
Louise had postural difficulties which pre-existed the motor
vehicle accident, as evidenced by the cervical spondylosis
seen on x-ray, and also todays examination of a fairly fixed
thorax and cervico-thoracic kinetic problems. Due to these
postural problems, I believe that the cervical fusion is less
successful than might have been hoped for."

41. After reference to the AMA guidelines, which I do not regard as relevant, he continued:

"3. As a result of her pain disability in the neck region, I
believe Louise has an occupational handicap, in that she is
no longer fit to sustain prolonged periods in a forward
flexed position in an occupation such as typesetting. I
believe that the estimate which she states in her enclosure,
that is, 4-5 hours per day in short periods, is entirely
reasonable as I understand her impairment and postural
problem. Clearly, prior to the accident she had neck
difficulties as indicated by x-ray changes and now this
tendency to excessively move her neck has been severely
disrupted by a neck fusion. She is not able to compensate
for this loss of movement, by movement in the chest, and
therefore would be prone to muscular fatigue and poor
dynamics with respect to forward flexing of the head as
needed in a typesetting occupation. Notwithstanding the
above statement, I believe that correct attention to
furniture ergonomics and postural re-education could
substantially reduce her discomfort and increase her
tolerance. She is also likely to have a chronically weak
neck, as often occurs following surgery. A graduated fitness
programme designed to improve co-ordination, strength and
endurance could go a long way to improving the situation.
4. With respect to causality, it must be remembered that the
existence of pathology at the time of the accident, which
becomes irreversibly aggravated, does not remove the
historical connection between the accident and the ongoing
difficulties. In simple terms, I believe that Louise would
probably not be in her present plight, were it not for the
motor vehicle accident. She may have eventually gone to
surgery because of her deteriorating spondylosis, but when
this might have occurred is speculative and uncertain.
5. The prognosis is for continuing pain disability associated with
head and neck movements, and indeed shoulder movements, which
will continue indefinitely and is susceptible to exacerbation
by various activities both at home and at work."

42. Dr McGrath was not required to attend for cross examination.

43. Dr Berenson gave evidence. He last saw the plaintiff in May 1993. She had developed inguinal hernia due to the accident. She was still considerably disabled and anxious. He recommended manipulative physiotherapy and muscle building over a period of from six to eighteen months. She will require continuing medication.

44. Dr Newcombe also gave evidence. He agreed that she had a degenerative condition which predated the accident, which would on the balance of probabilities have caused her some pain eventually, which might or might not have been disabling. He thought the onset more likely to have been after 50 than before. The disc disruption at the operation site he attributed to the accident. He did not agree with Dr McEwin that her reduction in symptoms after the accident indicated that the accident was not the cause of the herniation. Having heard her description of the course of her recovery I agree with Dr Newcombe's assessment. I think Dr McEwin's view is based upon too slight a factual foundation, when he referred to her discomfort before the accident and her recovery after it.

45. In summary, I find that the plaintiff had a degenerative condition of the cervical spine before the accident, which was largely asymptomatic. Had the accident not happened it is probable that she would at some time have experienced pain in the neck as a result of the progression of that degenerative process. That pain might in later life have become disabling, but it was not probable that it would do so.

46. The accident was sufficiently violent to turn that possibility into a certainty. A collision in which the seat belt causes a hernia and a hairline fracture of the sternum was obviously likely to damage a neck that was already at risk. It deprived her of the chance that she might not have suffered disabling pain in the neck at all. It made the fusion operation necessary that she might never have needed. She also suffered the other injuries listed by Dr McEwin, all of which were attributable to the accident.

47. She lost the ability to carry on the skilled business at which she was so good, and in which she took justifiable pride. The changes in her health, her capabilities and her financial circumstances caused her significant anxiety, though there is no evidence of clinical depression. Her condition is relatively stable, although it might be alleviated to some extent by physiotherapy. She is only 43 years of age, with a normal life expectancy, and many years of pain and discomfort ahead of her.

48. For her pain and suffering and loss of amenity I award $60,000, of which $15,000 would be attributable to the future. Interest on the past component on the conventional basis amounts to $6,690.

49. The out of pocket expenses, on the basis of the findings that I have made, are agreed at $8,387.

50. There was no dispute about the actual figures used in relation to the past and future loss of income, and it is obvious that the assessment of both is more a matter of judgment than calculation. Evidence was given by Mr Newham, the accountant who prepared the taxation returns for the plaintiff's business from June 1983 to June 1989. The conclusions that should be reached on the basis of the data that he supplied are more difficult.

51. The accident happened during the last quarter of the year ending 30 June 1986.

52. Mr Kelly gave evidence that at first he continued to send work to her. She had two employees who were quite competent, but the business could not meet his deadlines, and he started to send less and less work to her. That is consistent with her evidence and the evidence of the gross takings, which over relevant years were as follows (to end June in each year):

1983 $38,617
1984 $45,920
1985 $58,182
1986 $49,823
1987 $57,018
1988 $64,110
1989 $60,023
1990 $39,111

53. The business was operated as a partnership, with the plaintiff being entitled to one half share, until 30 June 1988. Thereafter she operated the business as a sole trader.

54. The taxation returns in evidence disclose that her share of profit and the wages paid to her in relevant years was as follows:

Share of Profit Wages Total
1983 $3,797 - $3,797
1984 $399 - $399
1985 $256 $4,000 $4,256
1986 $281 $1,200 $1,481
1987 ($28) $4,890 $4,862
1988 - $9,228 $9,228
1989 $6,255 - $6,255
1990 ($6,534) - ($6,534)

55. It is impossible to discern from those figures the extent to which her income was reduced on account of her disability.

56. Other people were working in the business, and no doubt there was a backlog of work, and a continuation of goodwill for a large part of the three years after the accident.

57. Mr Kelly gave evidence that a good typesetter could earn $600.00 a week, but that figure should not be used as a basis for calculation because it is probable that the plaintiff would have continued to operate her business, rather than work for wages. Undoubtedly the accident caused a diminution in her income earning capacity, but she may be compensated for that only to the extent that it caused economic loss to her. It is clear that no matter how hard she worked or for what long hours the business was not going to return to her anything of the order of $30,000 a year as a result of her personal exertion.

58. Projections were made by Mr Newham, the accountant, based on applying an increase in gross takings for increases in the consumer price index after the 1986 year. He did not adjust the expenditures for CPI increases, however, and took no account of taxation in arriving at his estimate of cumulative loss to 30 June 1990. That figure, $57,966, can not be used directly for calculation, but it does perhaps indicate the upper limit.

59. I think that there is some force in the submission of counsel for the defendant that the figures for the 1985 and 1986 years indicate a return to her as the result of her own personal exertion during those years as being of the order of $2.00 to $3.00 an hour. Allowing for the long hours she worked, that indicates a return of between $5,000 and $8,000 a year. The figure for 1988, of $9,228, indicates that figures of that order are within the proper area of discourse. With figures of that order, and taking into account the discretionary nature of the judgment being made, the impact of taxation may be ignored. Over seven years the figure of $8,000 gives a sum of the same order as the accountant's projection.

60. For a time after the accident she was completely incapable of working. By 1991, as Dr McGrath commented, she may well have been physically capable of working for four to five hours a day in short periods. But of course she could not run a business with only that degree of capacity.

61. I take into account a small discounting factor on account of the degenerative disease in her cervical spine and other ordinary contingencies over a period of seven years.

62. As a matter of judgment I award a sum of $45,000 for past loss of income. I award $26,500 for interest on the past loss of income.

63. There was nothing in the evidence to suggest that the plaintiff would ever have worked for wages as a typesetter. I do not think therefore that the calculations submitted by counsel for the plaintiff based on a net weekly loss for the future of $312.00 a week give any indication of the proper award for future loss of income earning capacity.

64. On the other hand, she was capable and energetic, and may have decided after some years that the advantages of running a personal business at home were outweighed by the meagre financial returns. She gave no evidence about such a hypothetical future, but it is a possibility to be taken into account.

65. She has some residual capacity, which again is difficult to quantify, but it is realistic to regard it as being one which does not bring her sufficient to require her to pay tax, in her present condition. Treatment may increase her capabilities, but that is by no means certain. A figure of $150.00 a week as being her net loss of income earning capacity seems to me to provide a realistic starting point.

66. On the basis of medical evidence it would also be unrealistic to assume that she would have carried on business until the age of 65.

67. The present value of $150.00 a week for 17 years at 3 percent is $104,557. There must be a substantial discounting of such an indicative figure, on account of the likelihood that she would not have continued even to age 60. I would award $80,000 for the loss of future income earning capacity.

68. The plaintiff's husband took a month off work to care for her immediately after the accident. He also had to care for her, but less intensively, for some time after that. The moderate sum of $2,000 was claimed in the particulars. There was no evidence or discussion about it in the addresses, but I think it is a reasonable estimate of the value of his services.

69. I also think that it is reasonable to base the claim for expense of medication and treatment in the future on a figure of $10.00 a week. I allow $10,000 for that element of the award.

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

Pain and suffering $ 60,000
Interest 6,690
Out of pocket expenses 8,387
Past loss of income 45,000
Interest 26,500
Future loss of income 80,000
Value of voluntary services 2,000
Future medication and treatment 10,000
TOTAL $238,577

71. As a global figure, that sum seems to me to be appropriate.

72. I direct the entry of judgment for the plaintiff for $238,577.