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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Negligence - Motor vehicle accident - Roundabout - Two lanes - No issue of principle.Damages - Personal injury - Motor vehicle accident - Cervical spine - Successive accidents - No issue of principle.
HEARING
CANBERRA, 7-8 June 1993Counsel for the Plaintiff: G. A. Stretton
Instructing Solicitors: Legal Aid Office (ACT)
Counsel for the Defendant: L. Stone
Instructing Solicitors: Macphillamy Cummins and Gibson
Counsel for the Defendant: G. Lunney
Instructing Solicitors: Hunt and Hunt
ORDER
No. SC1560 of 19882. The defendant to pay the plaintiff's costs.No. SC820 of 1991
DECISION
MASTER A. HOGAN These two actions for damages for personal injury are being heard together by consent of all the parties. The evidence in each case is accepted as being evidence in the other.2. Both actions arise out of motor car accidents. The first accident happened on 8 September 1987 on the roundabout at the intersection of Parkes Way and Anzac Parade in Reid. An uninsured car driven by Karen Lorraine Tucker (now Belford) collided with the plaintiff's car. In that action the defendant denies liability and alleges contributory negligence by the plaintiff.
3. The second accident took place on 15 November 1990, when the plaintiff was stationary at the intersection of the Barton Highway and William Slim Drive. In that action liability is not in issue.
4. Principal issues in the cases are the extent to which the second accident exacerbated the effects of the first, and the degree to which each defendant is responsible for her present and continuing pain and disability.
5. The plaintiff was born in Adelaide on 22 September 1950. She completed her Intermediate Certificate, and left school at the age of 17. She married in 1972, and her first son was born in 1976. She had worked regularly at various jobs until shortly before her son was born.
6. In 1977 she sustained an injury to her lumbar spine. A laminectomy was performed at L6, which did not give her much relief.
7. In August 1977 she moved to Canberra, where in October 1977 her second son was born.
8. In 1979 Dr Newcombe performed a further laminectomy, at L4/5, which greatly improved her symptoms. She was able to return to work shortly afterwards, as a shop assistant, and later was actively engaged in quite vigorous sporting activities, such as netball, squash, golf and aerobics.
9. In September 1983 she joined the Australian Public Service, where she later obtained permanent appointment, and promotion to the equivalent of ASO 2.
10. She was involved in another car accident in 1984, but she could not remember in her evidence any injuries that she suffered. Some detail about them was elicited in cross examination of her general practitioner, Dr Tyler.
11. On 8 September 1987 the plaintiff was driving from her home at Kambah to Reid TAFE College, where she was then working. She had turned left from Kings Avenue Bridge on to Parkes Way, and intended to turn right on the roundabout on to Anzac Parade, in order to turn left from Anzac Parade into Constitution Avenue, in which the TAFE is situated.
12. As she approached the roundabout she was travelling in the left of the two marked lanes in the carriageway of Parkes Way heading towards Civic. There are also two marked lanes on the roundabout.
13. After giving way to traffic already on the roundabout and approaching from her right, she continued into the roundabout, still in the left hand lane.
14. In evidence she said that about half way between the signpost at the entry to the roundabout and the signpost indicating the direction to the city, she put her right indicator on.
15. She looked in her rear view mirror, and saw a white vehicle travelling in the same direction, to the rear of her car, but in the right hand lane. So far as she could observe or remember, its turn indicator was not on. She continued to follow the left lane as it veered to the right.
16. The vehicle behind then struck the driver's side rear light of her car. The two vehicles stopped within a short distance, with the front left of the white car at an angle to the plaintiff's car, at about the middle, or the driver's door.
17. The white car was driven by Mrs Karen Lorraine Belford, who was single at the time of the accident. Her maiden name was Tucker. She was an officer of the Royal Australian Air Force, and was travelling from the Russell Offices to her home, which was then at Florey.
18. She entered the roundabout in the right hand lane. She did not intend to turn right into Anzac Parade, but intended to continue straight ahead in Parkes Way, towards the city. She said in evidence, "When I was exiting the roundabout I noticed another sedan, a small sedan, beige colour, pulling around to my side and then dragged me off the roundabout. I did not notice any indicator on that other vehicle." She claimed that her left hand indicator was on. Her impression was that as the impact occurred both vehicles were travelling at about the same speed.
19. There was a conflict in the evidence about the conversation that then took place. I do not think it is necessary to resolve it. Mrs Belford did say that she had not seen the plaintiff's indicator, and that she said so to the plaintiff, who then pointed it out to her, and it was then on. I accept the plaintiff's evidence that she activated her right turn indicator, after she had entered the roundabout, and I accept that Mrs Belford did not see it.
20. Mrs Belford also stated in evidence that she thought the plaintiff's vehicle was heading off into Parkes Way as well, because it was in the lane to the left of her.
21. The major cause of this impact, and, I have no doubt, of many other impacts and near collisions in similar circumstances, is the design of the roundabout, with two lanes that continue on to Parkes Way, but which also turn right into the roundabout. Vehicles in both lanes are entitled to diverge to the right. Vehicles in both lanes are entitled to continue straight ahead. The potential for conflict is obvious.
22. In the traffic conditions on the roundabout at the time, it was clearly the duty of a driver on the inside lane, who intended to continue on, to keep a careful watch on any vehicle ahead and in the left hand lane, because of the possibility that it might diverge to the right, while staying in that lane, as it would be entitled to do.
23. There is no suggestion that Mrs Belford was travelling at an excessive speed. I think that she may have been travelling a little faster than the plaintiff, but that in itself was not a failure to take reasonable care.
24. She may well have been in a position where the front of her car was about level with the rear of the plaintiff's car, so that she did not see the plaintiff's right turn indicator come on, and her mere failure to observe it would not in itself be a failure to take care.
25. But the driver of the car to the rear was the one with the opportunity to observe the movement of the traffic ahead, and to drive in such a way as to avoid a collision with cars turning right.
26. She did not anticipate the possibility that the plaintiff might turn right. Had she done so she could have held back a little, waiting to observe whether she did so. Had she held back she would have been able to see the indicator sign, and the divergence to the right, and, by holding station only a short distance to the rear, she would have been able to continue straight ahead without there being any danger of a collision. Her failure to hold back and keep careful watch on the plaintiff's car constituted a failure to exercise due care for the safety of the plaintiff.
27. There will therefore be judgment for the plaintiff
28. On the other hand, in circumstances such as existed at the time of the accident, there is an obligation on the driver of a vehicle in the left lane who intends to turn right to exercise care, to drive at a moderate speed, and to give a clear signal of intention. I am satisfied that the plaintiff was driving at a moderate speed, and that she did give a clear and adequate signal of her intention to diverge to the right.
29. The plaintiff also took care to look in her rear vision mirror. She did not observe any indication that the car to the rear of her was going to continue straight ahead. Since Mrs Belford was expecting them both to continue ahead it is at least possible that she may not have activated her left turn indicator. But there is no doubt that the plaintiff did not see it if she did.
30. There was not then actually present to the plaintiff's mind any apprehension of impending danger.
31. But Mrs Belford's car was, to her knowledge, at a position only slightly to her rear and in the right hand lane.
32. There was no indication that Mrs Belford intended also to turn right.
33. The plaintiff should therefore have adverted to the possibility that Mrs Belford might continue straight ahead into Parkes Way, which would mean that she would be crossing from left to right in front of her, when there was only a short distance between them.
34. I think that more care was called for than a reliance on the right turn indicator, which had not been activated until she was well on the roundabout. The plaintiff should have paid more attention to the vehicle so close to the right and rear of her, to see whether in fact it would drop back to allow her to turn across its path.
35. Had she observed that it was not doing so, she may have been forced to continue straight ahead into Parkes Way herself, in order to avoid a collision. But that would not have been too great a price to pay to avoid the accident.
36. I am satisfied that to that extent she was partly at fault in causing the damage that she suffered.
37. It is clear also, however, that it was the driver of the car to the rear who was more in control of the situation, who had the better opportunity to observe and appreciate the danger, and who could the more easily have avoided the impact, by merely slowing down a little.
38. I would attribute responsibility for the damage 85 percent to Mrs Belford and 15 percent to the plaintiff.
39. The impact was not a violent one, as car collisions go. The plaintiff was wearing a seat belt, and was jolted forward and then backwards by the seat belt. She felt pain in the fingers of the left hand immediately. After the vehicles were moved she continued on to work, where she felt shaken up and began to feel pain on the left side, back and neck.
40. She was distressed and was sent home, and went for treatment to the Waniassa Medical Centre, where her general practitioners were Dr Greenhalgh and Dr Tyler.
41. She first saw Dr Greenhalgh, complaining of pain down the left side and left hip. He could not see any visible bruising, and could not detect tenderness over the painful areas. His diagnosis was muscular bruising. He prescribed rest and heat treatment.
42. She took two days off work, and returned to see Dr Greenhalgh on 10 September. She had not slept for two nights and was extremely shaky. Pain had increased in the arm, neck and left hip. There was now slight tenderness over the bruised muscles, but no restriction of movement. He thought she was suffering nervous reaction, and prescribed relaxant and anti inflammatory medication.
43. She attempted a return to work, but found herself in too much pain, and was sent home again.
44. On 14 September she saw Dr Tyler, who found her very agitated, and complaining of aching everywhere. Dr Tyler suggested that she spend some time being looked after by her mother in Adelaide.
45. After a week in Perth with a friend she spent two weeks with her mother.
46. On 2 October she went to see Dr Tyler. She was tense and depressed. Dr Tyler added an anti depressant to her medication. On examination a week later Dr Tyler found tenderness of the muscles around the right hip and left shoulder. She thought the tension and muscular spasm might have aggravated the pre-existing lower back condition. She prescribed physiotherapy.
47. Mr Cousin, physiotherapist, found her restrictions worst at the L5/S1 area, but the cervical movements were also restricted 25 percent by pain. C5/6 and C6/7 on the left were the worst levels on intervertebral testing. By March 1988 he was able to report that she was gradually settling.
48. Dr Greenhalgh reviewed her on 19 October 1987. She had some numbness in the right leg, and pain in her neck. He referred her to Dr Newcombe, who saw her on 10 November 1987.
49. To Dr Newcombe her complaints of neck pain and headaches were prominent. The low back pain she described as a dull ache. The physiotherapy was not yet helping much. On examination he did not find any definite focal neurological sign. Cervical x-rays did not demonstrate any abnormality. He felt that the neck and low back pain was probably musculo ligamentous in origin. He expected it to settle over time. He saw her again on 3 December 1987, and noted some improvement.
50. She had returned to work about two weeks before, and attempted full time duties. She could not cope because of pain, and consulted Dr Tyler over November and December. There were a number of changes to her medication. Dr Tyler saw her on 23 December 1987. Her emotional state was improved. On examination Dr Tyler found she was tense in the left trapezius muscle and left biceps muscle.
51. Dr Tyler was cross examined, but the questions were directed at the plaintiff's medical history before the accident. Dr Tyler had not been treating her at the relevant times, but the notes kept by the practice seemed to indicate that she had suffered whiplash type injury to the neck in the 1984 accident, and that she was prone to changes of mood. Prior cervical disc involvement, however, was not demonstrated.
52. She felt forced to take time off work in January 1988, and on 26 February 1988 she began to consult another general practitioner, Dr Richards, although she was still seeing Dr Tyler also from time to time. He found some limitation of neck movement. The cervical spine was tender to palpation at all levels. There was a non dermatomal impairment of sensation over the left hand.
53. On 14 March 1988 Mr Cousin reported that he felt the plaintiff would continue to improve, and should cease treatment after 4 or 5 more sessions, leaving her with minor, mild, intermittent neck and back ache.
54. Yet at about that time she was seen by Dr Andrews, neurologist, who found sufficient reason to cause her to be submitted to a number of tests. Electrical studies suggested nerve root problems in the upper limbs at C7. On physical examination he noted quite a few abnormalities, including restriction of movement at C6/7, and weakness of muscles on the left. A CT scan of 9 March 1988 did not demonstrate any abnormality, but Dr Andrews still thought she had disc problems at C6/7. There were also indications of nerve root problems at L5/S1. He requested a cervical myelogram, which she underwent at Royal Canberra Hospital on 18 May 1988, with the usual severe discomfort.
55. That procedure suggested, but did not demonstrate, cervical disc protrusion. Dr Chandran, neurosurgeon, was consulted. On 24 June 1988 Dr Chandran performed a cervical discogram, which was also extremely painful. It does not appear to have produced any definite diagnostic evidence.
56. At about the same time her solicitors sought a report from Dr Truman, psychiatrist. The physical symptoms of which she complained were neck pain radiating into both arms, pins and needles in both hands and left toe, and lower back pain. The emotional symptoms were severe irritability, insomnia and tiredness. Headaches were associated with tension and fatigue.
57. She had returned to work about two weeks before the consultation, as a cashier and computer operator at the Motor Registry, and was getting pain in the neck and arm.
58. Dr Truman found no evidence of psychological or psychiatric disturbance.
59. Dr Chandran had not advised any operation. In July she asked Dr Richards for a second opinion, so he sent her to Dr Robson, neurosurgeon. He saw her first on 1 August 1988, and began his own investigations. On 24 August 1988 he performed his own discogram. He explained in evidence that part of the procedure was to find out which disc hurt, so that he used no anaesthetic or muscle relaxant. It was an extremely painful procedure.
60. Dr Richards referred her for more physiotherapy, which gave same relief, but she was still in a lot of pain.
61. Dr Robson advised an operation. The plaintiff was anxious about it, and consulted Dr Stening in Sydney. She decided to undergo the surgery.
62. On 28 December 1988 Dr Robson operated, and found the disc at C5/6 totally ruptured, as the discogram that he had performed suggested it would be. He removed the disc and inserted a bone graft.
63. She remained in hospital until 2 January 1989, and then went to Adelaide to be cared for by her mother again.
64. In February 1989 she returned to part time work at the Motor Registry, working 4 hours a day for 5 days a week.
65. After she recovered from the operation she found the neck symptoms improved to some extent, but she still had headaches and arm pains.
66. She was referred to Dr Lithgow for pain management, and he referred her to Patricia Williams, psychologist, who saw her first on 26 April 1989. The ACT Administration asked Ms Williams for a rehabilitation plan. She thought that counselling and cognitive behavioural therapy would be appropriate. She gave the plaintiff training in techniques to reduce tension, and suggested improvements in her work practices and furniture.
67. In May 1989 she had two weeks off work, and when she returned she increased her hours to 5 hours a day.
68. By October 1989 she was again complaining to Dr Richards of severe headaches as well as neck and arm pain, requiring a change in medication. In March, April and May 1990 her headaches were worse, so he referred her to a neurologist, who found no abnormality in nerve conduction studies.
69. On 6 June 1990 Professor Gye, an eminent neurosurgeon, examined her for the defendant. He considered that she had suffered a muscular and ligamentous strain of her neck and lower back, bruising to the left arm and a sprain of the ligaments of her left middle finger, and a normal psychological stress reaction. He could not attribute her headaches to the accident, but rather to her general anxiety. The sensory alterations on her left arm and hand had no organic neurological base.
70. He did not have reports from either Dr Chandran or Dr Robson, nor did he see the x-ray studies that they performed. The only x-ray available to him suggested that the cervical fusion was associated with a collapse of the graft and narrowing of the C5/6 disc space, associated with regulation of the cervical spine at C6/7.
71. Nevertheless he reported that he did not believe that she suffered any permanent impairment from the immediate effects of the accident, and that there was no impairment to her ability to continue her then employment.
72. In cross examination he conceded that his opinion related to her working 25 hours a week.
73. The next day she was examined by Dr Lloyd Hughes, orthopaedic surgeon, in Sydney. His clinical examination did not reveal to him any objective evidence of any significant disability which would prevent her from resuming work on a full time basis. In evidence in chief he stated that the accident in 1987 was minor, and would not have caused any pathology which would have necessitated the spinal fusion. During cross examination he conceded at least the possibility that cervical disc degeneration which preceded the accident could have been exacerbated by it.
74. There is no evidence of any substantial change in her condition during the third quarter of 1990.
75. On 15 November 1990 she was driving a van from Fraser Pre School, where she had been talking to the children about road safety. She was returning to her office, and stopped at the roundabout at the intersection of the Barton Highway and William Slim Drive. She was wearing a seat belt. A Land Rover driven by the defendant in the second action collided with the passenger's side of her van. Again she was jolted about, and immediately felt pain in her left hip, knee and heel, and aggravated pain in her neck and back.
76. She drove to work to report the accident, but was too distressed to stay on. She consulted Dr Richards on that same day.
77. He found marked tenderness on palpation of her left iliac crest, with limitation of straight leg raising to only 50 degrees on the left. Her cervical spine was very tender, and all ranges of movement were severely restricted.
78. She had great difficulty sleeping because of pain. She was unable to go to work. On 20 November 1990 Dr Richards referred her for physiotherapy. The tenderness of the iliac crest persisted. In January he prescribed more anti inflammatory drugs. He continued to certify her unfitness for work until 8 July 1991.
79. Before that date, however, she consulted Patricia Williams again, and with her assistance and advice she transferred from the Motor Registry, where she could not cope with the constant standing, to her present position with the ACT Museum Unit, where she continues to work four hours a day for five days a week. She resumed the light and varied duties there on 23 April 1991. In May 1991 she told Dr Richards that she was enjoying the new job and coping well. She did not consult him again until September 1991.
80. On 3 June 1991 Dr Vance examined her for the defendant in the second action. She told him that overall she had by then returned to the condition that she had been in just before the 1990 accident. The symptoms that she described to him are consistent with that description, apart from occasional twinges of pain in the left knee and left foot, which were residual effects of that accident.
81. When Dr Richards saw her in September 1991 there was some persistent restriction of cervical flexion and extension, and tenderness over the cervical spine, but he felt she was fit for the work she was doing.
82. She saw her general practitioner in December 1991 and March 1992, when pain in the neck and back flared up after longer hours of working or exertion.
83. Dr Vance re-examined her in May 1992. There had been little change over the past year. He felt that her recovery from the 1987 accident had been retarded and to some extent arrested by the 1990 accident. He attributed 80 percent of her current neck and arm condition to the 1987 accident, and 20 percent to the 1990 accident. That impression is useful, but of course does not enable me to make any simple arithmetical calculation in awarding damages. He thought that her neck and arm symptoms were likely to persist indefinitely without improvement or significant deterioration.
84. In June 1992 Dr Richards ordered an MRI scan, which showed cervical disc degeneration at multiple levels, but no focal disc protrusion or foraminal stenosis. At the end of June an acute emotional crisis exacerbated her pain, and he certified her unfit for work for a short time. This incident is consistent with other indications that she was somewhat fragile emotionally, even before the accidents that are the subject of these actions.
85. She continued to see her general practitioner at two monthly intervals. In October she burnt her hand without realising it, because of the numbness, and was not coping at work. She was given a number of certificates for short periods off work. Dr Richards referred her to the neurologist, Dr Andrews, and experimented with medication suggested by him. Dr Richards's report suggests that emotional stresses were causing flare ups of the pain, rather than that pain was causing the emotional distress. In cross examination he expressed the view, with which I am inclined to agree, that if it were not for the accidents she may well have coped better, and if it had not been for the chronic pain she was in she may well have coped better with other aspects of her emotional life. When comparing her condition just before the 1990 accident with her present condition he commented, "Her level of pain from her perception may well be still of the same order as before then, but certainly her emotional state and her general ability to cope with life is vastly reduced now compared to before that accident."
86. On 18 November 1992 Dr Keiller saw her at the request of her solicitors. Her emotional distress was obvious to him. He also thought that the significant injuries were received in the first accident. There were objective findings in the neck to support her complaints of ongoing pain. He did not expect significant improvement or deterioration, and thought she was fit for work at her present level.
87. Dr Vance re-examined her on 14 December 1992. She had been off work since mid October, and was planning to return early in the new year. He saw scars on her arms where she had burned them because she had been unaware that they were resting on something hot. He thought her recent ill health was more related to emotional problems than to organic causes.
88. Professor Gye re-examined her on 25 January 1993. She obviously exaggerated the restrictions on her neck and arm movements to him, which may well have affected his opinions about her. The sensory impairment in her arms had no neurophysiological basis, and was classically functional in type. He thought she was fit to resume her pre injury duties without reservation or restriction, and did not accept that any of her complaints were related to the 1990 accident. She had completely recovered from the 1987 accident years before, in his view.
89. Dr Hughes also re-examined her on the same day. He also adhered to his previous view that there was no clinical evidence of any continuing disability, and that she was not suffering from any injury to her neck in relation to either car accident. On reading his report and reviewing his evidence I think it is possible that he placed too much reliance on his impression that the 1987 collision was not very violent. In my experience of hearing motor car accident cases, it has not been demonstrated that the damage to human tissue caused by a collision bears any necessary relationship to the cost of repairing metal.
90. Despite their eminence I am unable to accept the assessments of Professor Gye and Dr Hughes. The doctor who knew her best was Dr Richards. Dr Andrews found significant evidence of damage. Dr Robson found a ruptured disc on operation. In her emotional state I can understand that she may have displayed inappropriate symptoms on their examinations, but that does not mean that her neck had not been damaged and that she was not continuing to suffer pain due to the accidents.
91. The opinion of Dr Vance carries more weight. It accords, in general, with the findings of Dr Richards and with those of Dr Keiller. Neither the plaintiff nor the other defendant sought to cross examine Dr Vance or Dr Keiller.
92. Dr Champion, psychiatrist, examined her for the second defendant on 18
March 1993. She presented very well to him, and he found
no evidence of any
significant anxiety or depression. His overall opinion was as follows:
"Ms Harrison has a history of low back problems and lumber (sic)93. Dr Champion was not required to give evidence or be cross examined.
laminectomy. She had also undergone spinal surgery following a
motor vehicle accident involving injury to her neck in 1987.
Whilst recovering from this procedure she was involved in a
further motor vehicle accident in 1990. Apart from a period of
time off work whilst recovering from this accident she has
maintained her employment in a light duties capacity since the
1987 accident.
From the psychological viewpoint she has had an unhappy childhood
but has coped well with life and has not had previous
psychological problems. The history suggests that she may have
developed symptoms of emotional distress whilst recovering from
her 1990 motor vehicle accident and her treatment at the pain
clinic with Epilum and the tricyclic antidepressant Tryptanol
suggests that there may have been an element of anxiety/depression
at that stage. It would seem that these symptoms have now
resolved considerably and Ms Harrison has returned to work and her
family life. The likelihood is that she will having some lasting
disability which will be associated with ongoing pain in both the
low back and neck. It would seem that the 1990 accident would
have at the most contributed only minimally to these problems.
The emotional distress suffered was in the form of an adjustment
reaction. This is a reaction of a temporary nature involving the
development of coping mechanisms whilst adjustment is made to new
life circumstances.
When I examined Ms Harrison I found no evidence of anxiety
depression or any other psychiatric disorder. She is currently
fully fit for her light duties occupation from a psychological
view point. The adjustment reaction mentioned above would seem to
have been present for a number of months during 1990 and 1991."
94. In his report of 23 January 1991 Dr Richards summarised his views at that
time as follows:
"In my opinion the injuries from her accident of 8 September 198795. She did get back to work, however, and recovered to some extent. His opinion in May 1993 was as follows:
had stabilised to the point where she was able to cope with a work
load of 25 hours per week for most of the time, despite continuing
neck pain, arm pain and headaches. However, because she appeared
to cope well, she was being required to increase her work load,
which was causing some exacerbation of symptoms and also resulted
in problems in other aspects of her life, leading her to express
some resentment of her treatment by her employers.
The accident of 15 November 1990 aggravated the neck pain, arm
pain and headaches resulting from the previous accident, and also
aggravated a pre-existing lumbar spinal problem for which she had
undergone surgery on two occasions. In addition, the most recent
accident resulted in some new problems: primarily pain in the
left iliac crest, right wrist and both feet. These new injuries
appear to be soft tissue injuries (wrist ligament strain, plantar
fasciitis and injury to muscular insertions in the pelvis).
The injuries sustained and aggravated on 15 November 1990 have
resulted in her becoming unfit for work in the foreseeable future.
However, her condition has not yet stabilised, and it is too early
to offer an accurate long term prognosis.
The results of this latest accident have certainly compromised her
enjoyment of life, as the physical and psychological effects of
yet another set of injuries has demoralised her considerably,
further reducing her self confidence. She is likely to have
permanent residual disability, the extent and cost of which are
not yet clear."
"I last saw her on 23 April 1993 for the purposes of this report.96. The psychologist, Patricia Williams, had also seen her many times since May 1989. In her report dated 30 March 1993 she describes well the interaction of the various pressures upon the plaintiff:
She told me that she was going to court on 7 June 1993. She said
that she had been feeling more stiff and uncomfortable since the
onset of colder weather. On examination there was some
restriction of cervical rotation and flexion, marked limitation of
cervical extension, but intact upper limb reflexes. She reported
tenderness on palpation of C2/3 and C5/7, in the midline
posteriorly, and over the facet joints at C2/3 on the left, and
C6/7 bilaterally.
Examination of her lumbar spine revealed slight limitation of
lumbar extension, but other movements were normal. Lower limb
reflexes were normal, there was tenderness to palpation from L3 to
L5, and some restriction of hip abduction bilaterally. I
increased the dose of her anti-depressant.
In my opinion Ms Harrison continues to suffer the effects of the
motor vehicle accident of 15 November 1990 which aggravated the
effects of her previous accident and previous surgery in addition
to causing further persistent soft tissue injury. Investigations
have failed to reveal any operable lesion, so treatment will
continue to consist of lifestyle and workplace adjustment,
medication, physiotherapy, relaxation techniques and counselling."
"Initially, Gayl responded well to pain management techniques and97. She administered a number of indicative tests, and concluded:
counselling. At the time, she had a supportive work environment
and had been given a job which she found stimulating and
satisfying. She utilised all the strategies she had been given,
with beneficial results, and coped with her chronic pain with
positivity and courage in spite of frequent high levels of
fatigue. Unfortunately, as is often the way in work environments,
she saw her efforts as unappreciated at higher administrative
levels, (although immediate colleagues and superiors were
supportive); her duties were altered, possibility of financial
recognition for her abilities and work performance evaporated;
and much of her work was dispersed among new staff members. This
discouragement and disappointment reduced the usefulness of pain
coping strategies in her daily life. Pain coping strategies are
generally useful to reduce internal stress from pain and emotional
factors, as long as external stressors are not too oppressive. In
addition, Gayl was (and still is) a single parent with two boys,
10 and 13 years of age at that stage. I have attached former
reports which summarise previous findings and treatment responses.
Subsequent to this she had a further MVA in November 1990 which
exacerbated existing pain and seemed to have caused some hip pain.
This additional physical and emotional stress seems to have been a
significant factor in further reducing Gayl's ability to cope with
the specific difficulty of chronic pain, and general difficulties
such as work problems, financial difficulties and domestic
responsibilities."
"In conclusion: Gayl's capacity to cope with the pain condition98. Ms Williams also was not required to attend for cross examination.
and its concomitant suffering and limitations (together with
financial, domestic, relationship and work difficulties) has
deteriorated over the past four years. There is evidence that her
pre-morbid (pre-injury) personality was fragile, with some
potential for re-trauma; this together with major somatising and
maladaptive traits, and a second trauma from another motor vehicle
accident, has created stress - both internal and external - which
is beyond her emotional capacity to cope with effectively. Thus
pain and suffering, together with financial and domestic stress
have significantly reduced her ability to function, cope with and
enjoy life. She now has maladaptive behaviour patterns to her
injury and pain, and has translated any psychological problems
into her injury which are most likely entrenched. Prognosis for
treatment is poor.
This does not negate the fact that Gayl has made strenuous efforts
over the years to cope with her problems. I have observed her
over the past four years and before the second accident found her
co-operative, motivated and willing to work at managing her pain
although she has little insight into psychological treatment
modes. However, in the past two years, since the second accident,
and with no resolution of financial strains, her energy and
motivation have become exhausted. This, together with a fragile
and vulnerable personality, has unfortunately crystalized into an
entrenched chronic pain condition, and I believe her condition has
now stabilised."
99. Dr Richards gave evidence, and was cross examined, and it seems to me that his opinion was to much the same effect as that of the psychologist.
100. In summary, therefore, the plaintiff, before the first accident, had a spine which had been damaged and repaired at the lumbo sacral area, and had been subjected to whiplash injury in a previous accident. The whiplash injury had completely resolved. The lumbo sacral injury was not symptomatic, but of course was susceptible of further damage. Emotionally she was somewhat labile, and was subject to family stresses, which made her emotionally susceptible to trauma. In the first accident she suffered mainly injury to the cervical spine and associated soft tissues, and some exacerbation of the lumbo sacral injury, together with other relatively minor injuries. In the course of treatment she was subjected to three very painful investigations, and a fusion operation. Although the operation relieved some pain, she was left with continuing pain and restriction of movement, the scarring on the neck and iliac crest, and continuing discomfort of that donor site. Despite the previous neck injury, I do not think that it has been shown that the general degenerative condition of the neck was such that she would have come to need that operation in any event. Again, despite the lapse of time, I think it is more probable that it was the accident that set in motion a chain of events that made it reasonable for her to undergo the Cloward's procedure.
101. She was able to get back to work part time, and increased her hours from 20 hours a week to 25. There is no evidence that persuades me that her work capacity would have improved further to any significant extent.
102. As a result of the pain and limitations, she became even more emotionally vulnerable to other stresses.
103. The second accident caused an immediate flare up of the neck and lumbar symptoms, which gradually subsided over a period of about six months. Her position then was that physically she was only a little worse than she had been before that second accident, but the total experience had a marked residual effect on her ability to cope. She is, and will continue to be, restricted in her work capacity to 20 hours a week of light and varied duties. Instead of having the almost insuperable difficulty of finding such employment on the open market, she is able to continue in it in her present job.
104. Her condition is not likely to improve, or to deteriorate markedly. She is only 43 years of age.
105. For her pain and suffering arising in the first action I award $60,000, of which $10,000 relates to the future. Interest on the past component on the conventional basis amounts to $6,000.
106. For her pain and suffering in the second action I award $20,000 of which $5,000 relates to the future. Interest on the past component of that award is $850.00.
107. The medical expenses relating to the first accident were paid by Comcare, and it was not disputed that $14,723.65 was incurred between 8 September 1987 and 28 October 1992.
108. The medical expenses in connection with the second accident were also paid by Comcare, and are agreed at $4,572.
109. The lost wages were paid by Comcare. Up to the time of the second accident the payments on account of incapacity totalled $17,790. That sum is the gross figure and as I understand it to be accepted by both parties, it includes both the net loss and any Fox v Wood component to that date.
110. At the time of the second accident her capacity had already been reduced from that for full time work to that for 25 hours a week. The second accident reduced that capacity further, to nil until 23 April 1991 and thereafter for a further 5 hours a week.
111. For the period from 16 November 1990 to 23 April 1991, therefore, it seems appropriate to me that the first defendant should be responsible for the loss of 11.75 hours, and the second defendant for 25 hours.
112. Exhibit "E" shows that in September 1991 the plaintiff's net earnings for 36.75 hours a week would have been $374.00. Exhibit "C" shows that by May 1993 the rate had risen to $398.00 a week.
113. To base calculations up to the date of judgment on the rate of $374.00 a week would more than compensate for the need to make any discount for contingencies, and counsel did not suggest using any other rate.
114. The period for 16 November 1990 to 23 April 1991 is 22.6 weeks and the respective rates are $119.58 and $254.42 a week.
115. The results are $2,703 attributable to the first accident, and $5,750 attributable to the second.
116. On 23 April 1991 she resumed work at 20 hours a week. Had the second accident not happened she would probably have been working 25 hours a week, though no more. Counsel for the plaintiff and for the second defendant submitted that it followed simply that thereafter the second defendant should be responsible only for the loss of 5 hours a week. But the continuing affects of the second accident are more emotional than physical, and emotional reasons seem to be the main reason why she can not now work more than 20 hours a week, and to be the principal explanation of the absence for about 5 months between October 1992 and January 1993. Yet those emotional results were and are effective because she was already injured by the first accident.
117. There is force in the contention of counsel for the Nominal Defendant that the assessment of this aspect of the cases is not merely a matter of arithmetical calculation.
118. But on balance, so far as income earning capacity is concerned, I think that the arithmetical calculation does approximate a result that, as a matter of judgment, is just as between the parties, so that I would attribute the loss of income earning capacity after April 1991 as to 30 percent to the second accident and as to 70 percent to the first accident.
119. The total loss from 24 April 1991 to the date of judgment at $170.46 a week is $21,843. (I note that here my calculations differ from those contained in the written submissions by counsel for the plaintiff, which at (7)(c) refer to the period from 24 November 1991 to 7 June 1993, the date of the hearing.) Of that total I would attribute $6,553 to the second accident and $15,290 to the first.
120. The total net loss from 15 November 1990, the date of the second accident, to the date of judgment is therefore $8,453 and $21,843, a total of $30,296.
121. Exhibit "D" shows that Comcare made a total of gross incapacity payments of $34,861.73 from 16 November 1990 to 5 July 1993. Assuming, on the basis of Exhibit "C", that gross payments continued thereafter at $509.29 a week, a further $6,839.04 would have accrued since 5 July 1993. On that basis the total compensation paid for the period is $37,135.
122. The differences between $37,135, gross compensation, and $30,296, net loss, indicates the Fox v Wood component for the period, namely $6,839. I would apportion that in the same proportions as the loss of wages, that is 70 percent, or $4,787, to the first accident and 30 percent, or $2,052, to the second.
123. For the future, her loss may be assessed by reference to a loss of 16.75 hours. Her net weekly salary would have been $398.59 (Exhibit "C"). The loss therefore is of the order of $182.00 a week.
124. The present value of $182.00 a week for 22 years at 3 percent is $153,560. For 17 years, it is $126,862.
125. The plaintiff did not give direct evidence of her intention to work till she was 65, but no reason was suggested by counsel for either defendant that she did not at least have that intention. But there must be taken into account a possibility that she may have left work earlier, say at age 60. She had a steady position at ASO 2 level in the Public Service. That type of employment is now by no means as secure as once it was. She had an existing injury to the lower back, which was no longer symptomatic at the time of the first accident, but which would have left her at some risk in the future. I think that a substantial discount is called for, and assess her loss of future income earning capacity at $100,000, of which I attribute $70,000 to the first accident and $30,000 to the second.
126. She will also incur expense in the future for medicines and visits to the doctor. The evidence about the cost was vague, but appears to be of the order of $10.00 a week overall. Some of the treatment is for insomnia, some for pain, and it seems fair to me to attribute this item equally to each accident. I would award $5,000 in each action for this item.
127. The total awards are calculated as set out in the following table:
ITEM SC 1560/88 SC 820/91 TOTALThe award in the first action is to be reduced by 15 percent on account of contributory negligence.
$ $ $
Pain and suffering 60,000 20,000
Interest 6,000 850
Medicals 14,724 4,572
Loss of wages )
to 15.11.90 + )
Fox v Wood ) 17,790 _ 17,790
Loss of wages )
16.11.90 to 23.4.91 ) 2,703 5,750 8,453
Loss of wages )
24.4.91 to 7.10.93 ) 15,290 6,553 21,843
Fox v Wood )
24.4.91 to 7.10.93 ) 4,787 2,052 6,839
Loss of future income 70,000 30,000 100,000
Cost of future treatment 5,000 5,000 10,000
$196,294 $74,777
128. In the action arising out of the first accident I direct the entry of judgment for the plaintiff for $166,850.
129. In the action arising out of the second accident I direct the entry of judgment for the plaintiff for $74,777.
130. Unless counsel wish to submit otherwise, I would order the defendant in each case to pay the plaintiff's costs.
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