Christine Vera Mansfield v George H Harrison [1993] ACTSC 99 (9 November 1993)

SUPREME COURT OF THE ACT

CHRISTINE VERA MANSFIELD v. GEORGE H HARRISON
No. SC789 of 1986
Number of pages - 8
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Damages - personal injury - whiplash injury - previous whiplash injury - assessment of damages - whether completely recovered from previous whiplash injury - whether psychological condition an aggravating factor - no new question of principle.

Baker v. Willoughby [1969] UKHL 8; (1970) AC 467

Jobling v. Associated Dairies Ltd. [1981] UKHL 3; (1982) AC 794

Griffiths v. Commonwealth of Australia and Another (1983) 50 ACTR 7

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA, 6-7 September 1993
9:11:1993

Counsel for the Plaintiff: Mr R. Williams QC with

Ms P. Burton

Solicitors for the Plaintiff: Macphillamy Donald and Co

Counsel for the Defendant: Mr D. Nock

Solicitors for the Defendant: Macphillamy Cummins and Gibson

ORDER

The Court orders that:
There be judgment for the plaintiff in the sum of $255,000.00

DECISION

MILES CJ This is an assessment of damages for personal injuries sustained in a motor vehicle collision on 8 November 1985. The plaintiff was travelling as a passenger on a bus. She was seated, carrying a pavlova on her lap, which she was guarding carefully with her hands and arms. The bus was in Alinga Street proceeding eastwards across the intersection with Northbourne Avenue to the bus interchange. A car in the near side lane driven by the defendant and proceeding alongside the bus, diverged from that lane as if to make a right-hand turn, and collided with the bus. The impact between the two vehicles was not great, but the bus driver braked sharply. The plaintiff was flung suddenly forwards, and then, by some counter movement or other, backwards, being unable in the time and circumstances, to brace herself by her arms against the seat in front. It is clear that she suffered injury of a whiplash nature. Whether she suffered any other sort of injury is less certain and it is the effect of the whiplash injury and the uncertainty of any other type of injury that is the basis of the dispute between the parties.

2. The major question that requires decision is the significance of a previous injury sustained by her in a motor vehicle collision on 2 February 1985. The plaintiff's case is that she had recovered completely from that injury by November 1985. The case for the defendant is that the effect of the first injury was still present at the time of the later injury and that it continued or continues to play a part in the plaintiff's symptoms. In any event, it is submitted on behalf of the defendant that any consequences of the second injury resolved by about April 1988 and that any incapacity or debilitating symptoms suffered by the plaintiff since then are not due to the defendant's conduct.

3. The plaintiff gave some brief evidence that she had taken proceedings against the person responsible for her first injury and had recovered damages. The prospect was thus raised that this Court might have to decide what attitude it would take if the plaintiff had recovered (or been refused) damages for any consequences of the first injury which continued beyond the date of the second injury. This was a matter, however, which was not pleaded on behalf of the present defendant (and there is another question whether this is a matter which needs to be pleaded) and counsel for the present defendant, quite properly in my opinion, invited this Court to take a common sense and practical approach on the facts as established by the evidence in the present case. Hence, it is not necessary for me to consider some of the difficult issues that arise in such cases as Baker v. Willoughby [1969] UKHL 8; (1970) AC 467, Jobling v. Associated Dairies Ltd [1981] UKHL 3; (1982) AC 794 and Griffiths v. Commonwealth of Australia and Another (1983) 50 ACTR 7.

4. The plaintiff was born on 2 September 1949. She married in 1971 and has children born in 1974, 1975 and 1977, all of whom still live with her and her husband. She has skills and qualifications as a drafter in land surveying and the like. She had worked in that specialised field ever since obtaining her qualifications some 20 years ago, except for short periods after the birth of each child. She had become a permanent officer of the Australian Public Service, working as a Drafting Officer Grade 2 with the Commonwealth Department of Housing in a section which has since become known as AUSLIG (Australian Survey and Land Information Group). At the time of her injury her husband was employed by a commercial laundering service as a representative.

5. The injury on 2 February 1985 ocurred when the plaintiff was driving her own vehicle. Another car collided with it. Immediately after the collision the plaintiff, although somewhat shaken about, felt well enough to continue home by bus. Later that night, whilst on her way to a concert, she noticed a tingling sensation in the back of her neck. The next morning when she awoke, she noticed pain in her neck and headache. She went to the Woden Valley Hospital where she was found to have limited movement of the neck, and some neck spasm. She was given a cervical collar and analgesic medication. X-rays revealed no bony abnormality.

6. The plaintiff did not improve and saw her general practitioner, Dr T.Y. Low, on 5 February 1985. Her main complaint then was of pain on rotation of the neck, but Dr Low noted also that she had difficulty putting her hands behind her neck and behind her back. Over the next month she continued to visit Dr Low and complained of occipital headaches as well as pain in the left shoulder and left arm. She was referred for physiotherapy, and after attending every day for the first week, she continued with physiotherapy three times a week. She ceased wearing the cervical collar after five weeks. Nevertheless, as her symptoms continued, she was referred to Dr Chandran, a consultant neurosurgeon, who recommended conservative treatment only.

7. By the beginning of June 1985 the plaintiff had recovered sufficiently to resume her drafting work on a part-time basis. She was able to cope with that work. She said in her evidence that the pain in her neck and headaches were "reducing at the time she resumed work". She resumed full-time duties. Her physiotherapy also was reduced to twice a week and was discontinued on 18 October 1985.

8. The plaintiff said in her evidence that her health was "just about back to normal" by November 1985. She told Dr White that by that time she had "minimal pain at most."

9. Dr Low, the treating doctor, reported to her solicitors on 10 July 1985 that not having heard from her for over a month he expected that she was happily back to normal work. She did, however, return to him on 16 August after a slipping incident on 13 August when she fell on her left outstretched hand, causing pain in the left arm and aggravating pain in the neck. The aggravation, however, was slight and of limited duration. I find that it had ceased altogether before 18 October. I also find that she had almost, but not quite, recovered from the first injury by the beginning of November 1985.

10. After the injury on 8 November 1985 the plaintiff completed her journey home by bus, feeling a tingling sensation in the base of the neck and headaches. With the benefit of experience, she treated herself by use of ice-packs. Her husband, who thought that she had been making a lot of progress in recovering from the previous injury and "snow-balling in the right direction", came home to find her wearing a cervical collar. She experienced symptoms similar to those she had felt earlier in the year. She consulted Dr Low the next day. She complained in particular of pain in the left shoulder and upper arm. Dr Low prescribed anti-inflammatory medication and a resumption of physiotherapy and use of the collar. At that stage he certified her unfit for work until 29 November. She came under the attention of the Commonwealth Medical Officer. She remained off work until she recommenced duties as recommended by the Commonwealth Medical Officer in July. The recommendation, which was carried out, was that she not be given drafting duties but duties of a clerical nature for four hours per day, five days per week, with a view to increasing the hours by one hour per day each fortnight if the symptoms permitted. In fact, she increased the hours to four and a half per week for a month then to five hours a week for a period of two weeks. However, the longer hours brought on increased pain. She ceased work for two days and then, after consulting Dr Corry, a rehabilitation specialist, she resumed work for four hours per day. She continued under this regime until March 1988. She first saw Dr Corry on 17 March 1987, at which stage she was "managing" clerical duties with difficulty and with pain at the end of the working day.

11. Under Dr Corry she commenced a treatment program with exercise and pain management instruction and made slow but gradual improvement. She continued on clerical duties with very little loss of time. In March 1988 Dr Corry considered that she should gradually recommence some drafting duties but without increasing the hours. The nature of the drafting duties had changed somewhat since the plaintiff had last performed them in 1985. The change was due to increased computerisation. Dr Corry assisted with modification of her workplace in order to enable her to work at the computer terminal. The plaintiff was able to cope with the change in the nature of the work. She was given on-the-job training. However, she continued to have pain in the neck and arm and headaches and that is the situation in which she now finds herself. She states that she is unable to increase the hours which she works (four and a half hours per day, five days a week), and needs to take days off work from time to time when the pain is severe over the period of a day or so. She is restricted to lifting no more than five kilograms. Dr Corry considered as long ago as July 1989 that the plaintiff's duties should be varied, and that given her limitation, she should be able to continue performing her duties into the indefinite future. Dr Corry continues to hold the view that the plaintiff would benefit from a more varied work program.

12. Dr Corry gave evidence as well as furnishing two reports. He was of the view that making the assumptions which are consistent with my findings she probably would have made a full recovery from her first injury. Dr Corry was unable to explain the change in the nature of symptoms in May 1987 when the plaintiff began complaining of paraesthesia in the left arm and leg with an increased intensity of pain in those areas. He thought that the situation was stable by 16 February 1988, and that the headaches she was suffering were not connected with her accident and were explicable as due to stress or migraine. He conceded in cross-examination that it was difficult to decide whether the plaintiff would make a complete recovery and emphasised that the longer the disability persists the less likely full recovery might be. He noted that the plaintiff had no great incentive to work full-time, or to put up with more pain at work than necessary, if one were to assume (as the plaintiff conceded and as I find) that the plaintiff's combined income from her salary for part-time work and receipt of compensation is 90% of what she would have received if she had not been injured.

13. Dr White, a neurologist, examined the plaintiff at the reference of the defendant's solicitors shortly before the hearing. He supplied a report and was questioned over the telephone. Dr White confirmed the other medical evidence that, although there was some evidence of disc damage, or a "pathological disc", at the C4/5 level, there was no evidence of any impingement on nerve roots. He stated in his report as follows:

"Mrs Mansfield would appear to have suffered moderate damage to a
single disc and in the normal course of events I would have
expected
her pain syndrome to have improved sufficiently that
she would be able
to cope with a full range of work activities and
probably a full range
of domestic duties. The fact that she has not done so
co-insides (sic)
with my overall impression that she has limited
coping mechanisms with
pain and that there is a moderate depressive component
which has been
compounded over the many years that this problem
has been present.
There would appear to be a significant element
of secondary gain which
has continued throughout that period of time due
to a supportive family."

14. Dr White added in his report that what he considered to be a substantial psychosomatic component was largely subconscious, and that the combination of organic and psychological factors prevented the plaintiff from increasing her work commitment beyond its current levels and would continue to do so for the foreseeable future. Although the prognosis was positive as far as the organic component of her condition was concerned, that had to be weighed against the risk of slightly accelerated degenerative disease. The latter would not be significant for at least 10 to 15 years. As to the prognosis of the psychological component, Dr White considered that that was more uncertain.

15. In cross-examination over the telephone, Dr White confirmed these opinions, but clarified what he referred to in his report as "a significant element of secondary gain". Dr White considered this not to be the result of a deliberate course of conduct on the part of the plaintiff, but the result of her total environment, including a considerate employer and a caring family.

16. A month or two before the hearing the plaintiff received from the General Manager of AUSLIG a lengthy communication dated 19 July 1993. Allowing for euphemistic language, its message is that the plaintiff is one of some eighty members of the staff of AUSLIG who are or were to be retrenched. A Staffing Adjustment Program had been drawn up to enable the plaintiff and the other officers in the same position to look for alternative employment and take up re-training and counselling opportunities. The document warns that this program "should not be seen as a long term career move" and that there are limitations on the training available. I note that on 6 May 1991 the plaintiff was already expressing fears of restructuring and redundancy in relation to her job but it is not possible to come to any firm conclusion whether the fears related to her own particular situation or a more widespread prospect of loss of positions within AUSLIG.

17. The defendant did not call any evidence. There was no real dispute about the medical evidence. Rather, the emphasis was on evaluating the symptoms, the contribution, if any, of the first injury, the contribution of any other supervening factors for which the defendant is not responsible, and the prognosis, taking into account the possibility that the plaintiff will improve and the shadow which was cast over her future in any event by the recent notice of retrenchment.

18. Any assessment of these matters has to start with the proposition that the plaintiff was a perfectly acceptable witness and gave no indication at all of exaggerating her symptoms either to the Court or to the doctors (subject to Dr White's remarks about "secondary gain").That said, however, I think that it must be acknowledged that there is a psychological factor in the case and that the plaintiff has been nurtured in her work and home environment to the extent that she is hardly able to contemplate any resumption of her former employment or employment in any capacity. The evidence of her husband, which I accept, was that she was a remarkable woman in many ways before her injuries, that she had recovered substantially from the first by the time of the second and that she is no longer the bright, energetic and positive person that she once was and might have been expected to remain.

19. There have been some factors which may be seen to have contributed to the psychological background in which she now finds herself - the illness of an anorexic child in 1987, her husband's enforced change of career direction when he was retrenched some two and a half years ago and the undoubted stresses and strains that are likely to have accompanied her husband's acquisition of a restaurant business and its continuation, the fall at her home on 13 August 1987, and the worry that must be associated with the notice of retrenchment. However, all these matters are, in my view, well within the stresses and strains of ordinary living and are not to be excluded from the foreseeable circumstances in which the plaintiff has had to live out the results of the injury for which the defendant is responsible. The defendant is not responsible for any of these matters of aggravation. What the defendant is responsible for are the foreseeable consequences of the injury unabated by events which cannot be extricated from the web of circumstances which lie within the range of foreseeability and which are seen to follow the injury with the passage of time.

20. I do not accept the submission that there has been no real attempt by the plaintiff to return to full-time employment, or even to increase the hours for which she is capable of working. The Australian Government Medical Officer's records indicate that regular efforts have been made to reassess the plaintiff's condition and consideration given to possibly increasing her hours, subject to the advice of Dr Corry. The decision of the employer that the plaintiff should not be asked to increase her hours is not only reasonable, but almost inevitable on the information that was available to the employer.

21. The injury has resulted in a substantial disruption of the plaintiff's life both in her career and in her domestic environment. She had skills of a semi-professional nature and no doubt gained a considerable amount of work satisfaction, successfully balancing the requirements of her employment with the demands placed upon her as a mother and housewife, until the injury for which she sues substantially reduced her capacity in both fields of activity.

22. I am not convinced that the occasional and limited assistance she gives her husband in his restaurant business by, for instance, helping with the table settings sometimes on a Saturday, or occasionally helping with the washing of dishes, indicates that she is capable of a greater range of physical activity than she is willing to try.

23. However, I do take into account the evidence of the plaintiff's husband that in the last couple of months she does seem to have improved. To what this can be due I do not know. It would be surprising if it were due to the notice of retrenchment. It may have something to do with the prospect of getting this case over and done with.

24. For pain and suffering and loss of enjoyment of life I award the sum of $42,000.00, to which I apportion $27,000.00 as to the past.

25. For loss of earning capacity, I take into account that the agreed difference between the salary she has earned since the subject injury and the salary she would have been expected to earn if not injured is $87,742.00, that being the net figure after tax. This figure should be discounted for factors such as the child's anorexia that would have arisen in any event and which would have involved emotional strain and the like leading to loss of work time, and I award for past economic loss $80,000.00. As to interest on past economic loss, the plaintiff has received compensation payments of $72,340 to be offset against the award of $80,000. Interest therefore is to be awarded on the difference of $7,660 and is calculated at $4,289. The Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $28,239.75. Medical and other out-of-pocket expenses are agreed at $11,448.38.

26. As far as the future is concerned, there is an agreed continuing difference between the salary the plaintiff is earning and the salary she would have earned but for injury of $164.43 net per week. Assuming that the plaintiff had before her a likely working life of about 16 years from the date of injury to retirement, the present value of the loss on the 3% discount tables is about $109,000. Further discounting needs to be considered. In addition to the ordinary vicissitudes of life, this plaintiff, as events have shown, faced likely retrenchment in 1993, regardless of her injury. Retrenchment was, in my view, likely because as many as 80 officers were the subject of retrenchment. However, it is possible that the plaintiff might not have been one of those 80 if she had not been injured. For instance, she might have been promoted to a senior position or otherwise worked herself into a position which was not subject to retrenchment. It is, of course, impossible to be anything like certain, but likelihood and not certainty is the test and I find that retrenchment was likely, even if she had not been injured.

27. Nevertheless, there is a countervailing factor which has been brought about as a result of the very injury in question. It is that this plaintiff, now about to find herself on the labour market (for want of a better term), must be in a disadvantageous position as far as finding alternative employment is concerned. I do not see any avenue in which re-training is likely to be of any assistance to her, and none was suggested. I think, therefore, doing the best I can, that the award for present value of loss of future earning capacity should be discounted to $85,000.

28. Also for the future there is a claim for acupuncture which the plaintiff receives at the present time three times a month. The annual cost is approximately $1,300.00. She is likely to continue with this treatment I would think for several years. There is no evidence of a medical or paramedical nature however which convinces me that it is likely that she will receive it for the rest of her life. For this factor I award the sum of $5,000.

29. The total award then in summary is as follows:-

Pain and suffering and loss of
enjoyment of life $ 42,000.00
Interest on past component of $ 4,320.00
pain and suffering
Past economic loss $ 80,000.00
Interest on past economic loss $ 4,289.60
Fox v Wood $ 28,239.75
Out-of-pocket expenses $ 11,448.38
Loss of future earning capacity $ 85,000.00
Future acupuncture treatment $ 5,000.00
Total $260,297.73

30. To avoid overlapping of heads of damage I round this figure out to $255,000.00. There is to be judgement for the plaintiff in the sum of $255,000.00. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.