Rabab Marhaba v Christopher Damien Layt [1994] ACTSC 12 (21 February 1994)

SUPREME COURT OF THE ACT

RABAB MARHABA v. CHRISTOPHER DAMIEN LAYT
No. SC471 of 1992
Number of pages - 13
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Exacerbation of existing spondylosis - Post-traumatic stress disorder - Credit of plaintiff - No issue of principle

HEARING

CANBERRA, 15 July and 20-21 September 1993
21:2:1994

Counsel for the Plaintiff: G A Stretton

Instructing Solicitors: Sneddon Hall and Gallop

Counsel for the Defendant: F J Purnell

Instructing Solicitors: Mallesons Stephen Jaques

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $148,973.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 28 March 1991.

2. Liability is not in issue. What is very much contested are the following issues:-

What was the plaintiff's state of health before the

accident?

What effect did the accident have on her health?
What are her present disabilities?
To what extent are any disabilities which do exist the

result

of the subject accident?

3. In considering all these questions the reliance that may be placed on the plaintiff's own evidence is also very much in issue.

4. The plaintiff was born in Lebanon on 21 March 1951. She married there at the age of 16 and gave birth to a son in 1969 and a daughter in 1970. Although she first left school at the age of nine, she later completed her education to high school standard.

5. She came to Australia with her family in 1974 and worked first in a laundry in Sydney. She came to Canberra in 1976 and gave birth to another daughter in 1977.

6. After working as a cleaner for less than two years she worked as a cook at a series of embassies in Canberra.

7. In 1983 she consulted a general practitioner about problems she was having with her neck. Dr Dimitri took over that practice in February 1984. He confirmed that she was complaining of occasional neck pain radiating to both shoulders and was referred for x-rays. She continued to see him occasionally for neck and shoulder pain and headaches. She was a fairly constant visitor to his surgery until August 1990 in relation to a whole range of complaints. Dr Dimitri diagnosed her neck and shoulder pains as muscular and usually prescribed Voltaren. In February 1985 her condition was severe enough for him to prescribe a TENS machine.

8. On 2 December 1985 she began work as a waitress at the Southern Cross Club, working four days a week, four hours a day. She was still working at that job at the time of the accident.

9. Early in 1987 she complained to Dr Dimitri of headaches, sleeplessness and depression. He referred her to Dr Grivell, psychiatrist, who saw her on 23 January 1987.

10. Her husband had been injured and she identified her problems as arising from his condition. Dr Grivell saw her condition as a situational stress reaction and suggested relaxation classes. He did not prescribe any medication and may have seen her on two subsequent occasions with her husband, whom he seems to have been treating. He did not think that the plaintiff needed further treatment.

11. On 13 June 1987 she was driving a car which was hit in the rear by another vehicle. On 16 June 1987 she consulted Dr Dimitri complaining of pain in the right side of the neck, headaches and painful movements of the neck and dorsal spine. He found tenderness over the upper thoracic paraspinal muscles. He diagnosed a whiplash injury.

12. She claimed in her evidence in chief that after that accident she just kept working and felt alright. There is no evidence that she took any time off work as a result of it, but Dr Dimitri's notes show that she saw him on 6 July 1987, complaining that her headache was worsening and that she was still unable to sleep because of the neck pain. She was taking Voltaren, with little result. The muscles were still tender. He changed the medication. The only other entry relating to that incident is one on 22 September 1987. She made no claim for damages arising out of it.

13. In June and August 1988 there were complaints of low back pain. Straight leg raising, however, was 90 degrees.

14. In March 1990 she complained of lower back pain after lifting a garbage bin at work. There was some tenderness on examination, but no neurological signs. The plaintiff had no memory of the incident.

15. Dr Dimitri's notes finish at 27 August 1990, but the plaintiff recalled consulting him in March 1991 for lower back pain, which she said was related to her periods.

16. Although there are occasional references to lower back pain in Dr Dimitri's notes after mid-1988, there is no reference to any pain or stiffness in the neck and the plaintiff's evidence was that she did not recall any pain in the neck over the period from March 1990 to March 1991.

17. On 28 March 1991, the plaintiff was a passenger in the front seat of a car being driven by her daughter. She was being driven home from work. She was wearing a seatbelt. The vehicle was involved in a collision at the intersection of Beasley Street and Athllon Drive. She has no memory of the accident, but remembers the ambulance coming to take her to Royal Canberra Hospital.

18. She sustained bruising across the chest and had difficulty moving her right arm and neck. X-rays were taken of her neck, chest and right elbow and she was given a collar and some medication. No fractures were detected on x-ray, though early degenerative changes in the cervical spine were apparent.

19. The next day she consulted a partner of Dr Ette, who was at that stage her general practitioner. She was complaining of pain in the neck, right arm and lower back. On examination she had a tender right trapezius, tender right arm, bruising of the right upper forearm and was tender over L4. She was prescribed rest, analgesics and anti-inflammatory medication.

20. She did not return immediately to work.

21. A few days later she saw Dr Ette again. She had pain in the right side of the chest and head, with dizziness, and was tender over the right ribs. Her right arm was numb.

22. On 5 April 1991 the plaintiff submitted to her employer a declaration in support of a claim for workers compensation. In it she answered "no" to the question whether she had any physical defect or infirmity prior to the accident.

23. In March 1992 she made a claim to NZI Insurance for compensation under the motor accidents legislation. In that form also she ticked the "no" box in answer to the question whether she had suffered prior injuries or disabilities to the same parts of the body as those injured in the subject accident.

24. Since she had suffered some injury to her neck in the 1987 accident those answers were strictly untrue. But in the context of the length of time since that accident, and the facts that she refused to go to the hospital, lost no time from work, soon recovered from the accident, and had not suffered any neck pain of any significance for over a year, I do not think that those answers demonstrate any deliberate untruthfulness on her part.

25. She continued to see Dr Ette, on 7, 12 and 21 April. He prescribed physiotherapy and heat treatment for the neck.

26. It is not clear when she returned to work, but when she did she began to experience a clicking sensation in the neck. Because of the pain in the neck and numbness in the right hand she felt unable to perform her work and felt depressed. On 29 May she complained also of throbbing headaches, dizziness and sleeplessness. She was prescribed an anti-depressant.

27. On 19 June 1991 she was complaining of soreness in the arms and an inability to lift trays. She was referred to Dr Andrews, who carried out electrical studies. She was advised not to lift more than two kilograms.

28. On 27 June 1991 she was advised to have a rest from work for two weeks. In July she was given a work certificate for 13 days. When she tried to go back to work there were no light duties and she was depressed. She was given a certificate until 12 August 1991 and referred to Dr Corry, who saw her on 2 September 1991.

29. She told him that the physiotherapy was not helping and her symptoms were progressively deteriorating. Her major worry, however, was her increasing anxiety. On examination he found restriction of neck and shoulder movement. His initial assessment was that she had sustained soft tissue injuries, but her major disability was a post-traumatic stress reaction.

30. During September 1991 she suffered some gynaecological symptoms and was referred to a specialist for investigations.

31. During October she discussed her ability to work with Dr Ette, who gave her various letters and certificates for her employers. Her symptoms fluctuated. In December she was told to work only two days a week for a month.

32. The last occasion on which Dr Ette saw her was on 28 January 1992. She was depressed, complaining of neck pain, and was unable to lift anything or to work at home or at her place of employment.

33. An MRI scan performed at Dr Ette's request on that day demonstrated posterior disc herniation at C3/4, C4/5 and C5/6. There was evidence of early cord compression and narrowing of the neural foramina at the C5/6 level.

34. The plaintiff had decided to change her general practitioner. On 21 January 1992 she saw Dr G S Guirguis. On examination he found restriction of movement of the neck and right shoulder and also of the lumbo-sacral spine. He referred her to Dr Andrews, consultant neurologist, who saw her on 17 February 1992.

35. Dr Andrews examined the recent MRI scan. He found that the plaintiff had a near rigid neck. There was some functional overlay, but he diagnosed genuine disc problems in the cervical spine, and suggested that she would probably require surgical treatment to relieve her symptoms.

36. On 19 February 1992 her employer informed her that the Club could not hold a position open for her, and terminated her services. She was told she would be considered for further work when she had properly recovered from her injuries.

37. At the request of Dr Andrews, Dr Newcombe, neurosurgeon, examined the plaintiff on 13 March 1992. He also was told that there was no prior history of neck or lower back problems. On examination he found gross restriction of neck movement and reduction of lumbar spinal movement. There were no definite focal neurological signs on this occasion, though he detected some on a later examination. He discussed with her the possibility of an operation.

38. Dr Corry's opinion at the end of March 1992 was that her prognosis was not good. The emotional effects of the accident he considered to be quite severe.

39. Dr Guirguis also referred her to Dr Lee, consultant psychiatrist, who examined her initially on 30 March 1992. He noted in her history a difficult life when she was young and the stress caused by her husband's accident and disability. He diagnosed a post-traumatic stress disorder with reactive depression and chronic pain syndrome, in the context of her difficult social and family environment. Dr Lee continued to see her, in April, May, June, August and October. He prescribed anti-depressants and gave supportive psychotherapy.

40. Dr Newcombe reviewed her on 5 June 1992. She had continuing neck and right arm pain. She had some symptomatic relief following a series of massages, but there was still severe pain.

41. He discussed with her the surgical possibilities, but she was afraid of surgery. She was expecting to undergo a hysterectomy, which in fact was performed in October. He also noted the significant functional overlay. But his opinion was that her pain and suffering stemmed principally from aggravation of cervical spondylosis and cervical disc protrusion, following the accident of March 1991.

42. Dr Corry saw her on 16 June 1992 and spent the consultation discussing with her the nature of the surgical treatment recommended by Drs Andrews and Newcombe. He recommended that she proceed with it.

43. Dr G Guirguis referred her also to Dr M F Guirguis, orthopaedic surgeon, of Sydney. On 5 August 1992 he found muscular spasm on neck movement and limitation of cervical movement. There were neurological deficits related to C6 and C7 nerve roots. There was spasm in the lumbar spine and limitation of straight leg raising. He arranged electrical tests and a CT scan of the lumbar spine.

44. His opinion was as follows:-

The above clinical presentation is consistent with
post-traumatic
symptoms in the neck and back which were caused by
chronic musculo-ligamentous sprain/strain of the cervical
and lumbar spines with implication of the C3-4, C4-5 and
C5-6
discs in the neck and the L4-5 disc in the back and with
aggravation of underlying degenerative changes in the spine.
This also caused irritation of the right C6 and C7 nerve
roots resulting in the brachialgia described above.
She was treated conservatively. Surgical treatment would

not

be rewarding due to the multi-level involvement and is
expected no to alter the current clinical presentation.
She remains unfit for work.

45. Dr Lee had given his opinion in a report dated 22 October 1992. The plaintiff's solicitors forwarded to him some medical reports, including a report by Dr Grivell of 27 January 1987. Dr Lee was then called to give evidence at the hearing, where he stated that the additional material did not affect his diagnosis. In cross-examination he insisted that she may well have suffered depression intermittently before the accident, but that the additional trauma of the accident and its consequences had given rise to the post-traumatic stress disorder. He had continued to treat her in June and August 1993. His prognosis was still guarded.

46. On 30 November 1992 she was examined for the defendant by Dr Millons, orthopaedic surgeon. He observed tenderness in the cervical region. During his examination she resisted any movement of the neck, but when her attention was diverted moved more freely. There was lower back tenderness and limitation of straight leg raising. He reviewed the MRI scan.

47. In his opinion, while she may, in the accident, have suffered musculo-ligamentous injury to the neck, or aggravated the degenerative changes, he would have expected her symptoms to have resolved. He was certain that she should not undergo a cervical fusion at two or three levels, which would not carry with it any guarantee of improving her symptoms. He thought that a lot of her symptoms were more in the realm of the psychiatrist than the orthopaedist.

48. Later he was sent a copy of Dr Dimitri's notes and had regard to the complaints of pain in the neck and shoulders from 1984 to 1990. That suggested to him that such problems as she had reflected the natural progress of degenerative change rather than the result of the accident.

49. On 1 December 1992 Dr Edwards, surgeon, examined her for the defendant. She told him that she had not been involved in any other motor vehicle accidents. Again her neck movements were more restricted while they were being examined than at other times. There was a non-organic distribution of diminished sensation over her right arm, shoulder, neck and face.

50. He could find no objective clinical evidence of organic disability. Her disability depended upon her statements, and he found evidence of fabrication and exaggeration. The disc herniation shown on the scan was degenerative and not the result of the accident. Any aggravation caused by the accident would have ceased long since. He thought she was fit for any activity.

51. The defendant's solicitors also sent her, with a copy of the report by Dr Millons, to be examined by Dr McGrath, rehabilitation consultant. He examined her on 18 May 1983. He thought that she had radiological evidence of degenerative changes in her neck, which may well have been aggravated by a whiplash type injury in the accident. Rehabilitation had not succeeded, probably because of psychosocial factors. He commented that successful rehabilitation usually depends upon an expectation of recovery, and this can be altered by fear and apprehension.

52. Dr Corry, also a consultant rehabilitationist, was sent copies of the clinical notes of the plaintiff's general practitioners, evidencing the previous complaints of neck and arm pain in 1985 and 1986, and the x-rays of 1983. There was also the record of the aggravation of neck pain in the earlier accident in 1987.

53. The plaintiff had given him an entirely different history. He therefore regarded her reports of symptoms as being an unreliable basis for forming an opinion about the cause and nature of her disability.

54. He concluded that the plaintiff had significant vulnerability to the development of neck symptoms, both spontaneously and as a consequence of injury, particularly the trauma from the accident of 28 March 1991. There was a significant risk that she might have developed symptomatic disease, affecting her ability to work to age 60, even had there been no trauma.

55. On 25, 26, 28, and 29 June and 5 July an investigator observed the plaintiff and recorded her movements over a total period of about 16 minutes. She was seen to walk normally, carrying a plastic bag of shopping up the driveway and steps at her home. The only significant segment to my mind was that on 29 June, when she was recorded as she stood waiting for a bus for some minutes. She turned her head from left to right on a number of occasions, without any apparent restriction of movement. She did however at one time lift her right hand to her face and neck as though they were aching. On the return from the shopping expedition on 5 July it was a man, presumably her husband, who lifted the bags of groceries from the shopping trolley into the car. When she travelled by car she was a passenger.

56. The impression that the videotapes left with me was that they did not confirm her complaints, but neither did they afford evidence that her complaints were unfounded. Certainly she exaggerated the extent of restriction of neck movement when being examined, particularly by the specialists for the defendant, but they were already aware of that fact even without the video.

57. The plaintiff also obviously misled her own lawyers and some of her doctors by deliberately concealing the facts about her earlier accident and her earlier complaints of neck and back pain. She even admitted that she did so because of the effect that telling them might have upon her case. Her evidence must naturally, therefore, be scrutinised with care, but it does not follow that she cannot be believed about anything.

58. Dr Ette was called to give evidence by the defendant. He viewed the videotape. The plaintiff appeared normal to him at the bus stop. He commented that she always presented to him as normal. She did not, at any rate, exaggerate her symptoms to him. Although she had been fit for light duties at the time of his report in June 1991, he had subsequently certified her as being unfit for work.

59. Dr G S Guirguis, her later general practitioner, also gave evidence and was cross-examined. He had perused the clinical records of Dr Dimitri, but saw nothing in them to cause him to change his opinion. Since his report of 30 March 1992 the plaintiff had appeared to him to be getting more and more depressed. He continues to see her reasonably frequently. He assessed her previous neck pains and back pains as having been muscular and temporary. He accepted her as honest in her complaints to him and fluctuations in her symptoms were understandable. To him she did not appear to have any functional overlay.

60. Dr Andrews gave evidence. He had seen Dr Dimitri's notes and the video. He changed the opinion that he had given in March 1992 to the extent of saying that the additional material indicated to him that there was more functional overlay than he had thought. The neck movements on the video were markedly better than what he had observed in his rooms. He considered her physically capable of working three hours a day twice a week. He would no longer encourage her to undergo cervical surgery.

61. Dr Newcombe gave evidence. When he had reported he had been provided with no history of prior neck or lower back problems. He had since seen the general practitioner's notes. He adhered to his view that the accident had caused significant aggravation of a pre-existing degenerative cervical spondylosis. That condition had been symptomatic intermittently before the accident and had been exacerbated for a time by an earlier accident, but she had not lost any time from work because of it before the subject accident. Some other trauma might have made it symptomatic had the subject accident not occurred.

62. Dr M F Guirguis had perused the general practitioner's notes. He regarded the results of the car accident as being quite different in severity from the neck and back symptoms recorded before it. After the history had been put to him in detail in cross-examination he commented as follows:-

MR PURNELL: Now, in your opinion, at the end, now that

you

know the history?
DR GUIRGUIS: Yes.
MR PURNELL: Do you wish to change any of that?
DR GUIRGUIS: I would like to say that every time she
complained of pain in the neck or back she probably have

(sic)

exposed her spine to a stress, and as I said the repeated
application of stresses leaves its stigmata every now and
then. If she had a major accident that caused some problems
in her neck in 1987 and a second accident in 1991 most
certainly the second accident would leave more injuries than
the first one. As far as I could gather from the history I
read she did have some problems in her back, in her lower
back, felt:intermittently over the years probably due to
stressing her back through everyday activities but those
problems were not as bad as what happened after the car
accident. They are the other features of the

...inaudible...

change but I would say that the main problem in the lower

back

which took the form of a disc problem at the L4/5 as shown

by

the CT scan would have emanated from that car accident in
1991.

63. Dr McGrath was present in court and heard the detail of the pre-accident history given by Dr Ette. He was also shown the videotape.

64. He was asked whether he then thought she could work as a waitress two days a week for three hours a day. He replied "I think that she could be made fit to do so, I'm not sure that she's fit at the moment". Physically, it would take at least a month of rehabilitation to strengthen her sufficiently.

65. Dr Corry was also called to give evidence. He was shown the videotape. He agreed that her neck movements were more extensive and free than he had seen on examination. If one assumed that she could continue that degree of activity she should be able to work six hours a week.

66. The plaintiff's supervisor at her employment, Mrs Mauk, gave evidence that the plaintiff was a very good worker up until the time of the accident and described her weakness and unhappiness at work after it.

67. The plaintiff's son also corroborated the change in her after the accident.

68. I give full weight to the many valid criticisms made of the reliability of the plaintiff's evidence.

69. I find that before the subject accident she had spondylosis of the cervical spine, which had been symptomatic and for which she had needed treatment on a number of occasions. It was exacerbated for a time by a minor whiplash injury in a rear end collision in June 1987. But she had not suffered any symptoms resulting from it for more than a year and she had not needed to take time off work as a result of the condition of her neck.

70. She had also suffered occasional muscular discomfort in the lower back, which was not shown to be related to any pre-accident spinal pathology.

71. Her general health was far from perfect. She visited her doctor frequently. She had suffered a degree of mild depression after her husband became injured.

72. Nevertheless, she was a constant, willing and competent worker, who enjoyed her job and was good at it. I think that work probably gave her an outlet and a respite from the emotional pressures to which she might have been subjected at home.

73. It is more probable than not that the underlying spondylosis was exacerbated in the accident, which was the cause of the disc damage. Despite her attempts and her genuine desire to get back to work, she found that the pain was too great to enable her to do so properly.

74. She did not resign. She was put off. That in itself also constituted a blow to her self-esteem.

75. Whether the label "post-traumatic stress disorder" is justified according to the criteria in the psychiatric literature or not, the constant pain and tension had an effect upon her emotional health. She was being advised by at least three specialists to have an operation, but all that they could promise was that it might lessen her pain, not cure her. Of course she became anxious and depressed.

76. On the evidence I think that the better view, as expressed by Dr M F Guirguis, is that she should not have the operation.

77. There is definite evidence of disc damage. I am not persuaded that the opinion, for example, of Dr Edwards that the accident, with its consequences, was not a major episode of trauma, is justified.

78. It is true that some other trauma might have reduced her to her present state, but when considering an award for pain and suffering it must be borne in mind that it was this defendant's negligence that in fact caused the damage.

79. I am also not persuaded by the evidence of the videotape, even taking her credibility into account, that she does not now suffer pain and restriction of movement. She obviously exaggerated her restrictions to some of the doctors. But it does not follow that she has none and I accept the evidence of the doctor who knows her best in that regard, Dr G Guirguis. The symptoms that she displays to him are not as dramatic as those she pretended, for example, to Dr Millons, and in that sense he does not perceive her as having any great degree of functional overlay.

80. What in fact will happen in the future is very difficult to foretell. A course of rehabilitation might restore her muscular strength so that she could be capable of part-time work. But psychologically the evidence is nowhere near as clear. I think that the only finding that I can make is that it is possible that she will at some indeterminate time in the future be fit for some part-time work of the type in which she is experienced.

81. She is 42 years of age.

82. For her general damages I award $45,000, of which $10,000 relates to the future. For interest on the past component I award $2000.

83. The out-of-pocket expenses are agreed at $12,486.63 and no claim is made for interest on them.

84. Exhibit K shows the past wage loss as being $18,523 at 13 July 1993, accruing at $170.60 a week thereafter. Bringing that up to date gives a total of $23,933. She has been receiving weekly payments of compensation, totalling about $4,000 less than that sum. Interest on the past wage loss amounts to about $900. The Fox v Wood component would now total about $1,100.

85. There is a past loss of employer contributions to superannuation amounting to $354.

86. The calculation of future economic loss at $147,087 in Exhibit K was based on assumptions that the plaintiff would have continued to work until age 65, earning at the same rate as she did prior to the accident, and that she will never work again.

87. Neither assumption is justified on the evidence.

88. I think it is unlikely, even if she had enjoyed good health, that the plaintiff would have worked to that age in that job, although if she had wanted to, it might have been available to her.

89. I also think that there must be a much greater discount than usual, based on the pre-existing spondylosis and her general health. It was quite on the cards that she could have become disabled, either as a result of the natural progression of the degenerative process, or from trauma, or from a combination of both.

90. There is also the possibility, though it is no higher than that, that she may be rehabilitated and get back into the workforce, at any rate on a part-time basis. She has a good reputation with her former employer and the work as described by Mrs Mauk was not heavy.

91. The present value of $171 a week for 17 years at 3 per cent is $119,187. For five years it is $41,533. For ten years it is $77,292. As a matter of discretionary judgment I award $50,000 for future economic loss.

92. Taking those same considerations into account, I would reduce the amount claimed for loss of future superannuation contributions to $3,200.

93. The cost of massage treatment is between about $120 and $165 a week and medication costs amount to $25.75 a week. Their value must be assessed by reference to her expectation of life. Table 4A in Luntz (3rd edition) gives the present value of a loss of $1 a week to a female aged 42 and ceasing at death as $1,156.

94. But there is not really any evidence that she will continue to receive massage at the rate claimed for the rest of her life, or for any particular time.

95. There must also be a discount for the chance that degeneration or trauma might independently have required medication in the future, as it had in the past. I would allow $10,000 for the cost of future treatment attributable to the subject accident.

96. The total award is therefore made up as follows:-

Pain and Suffering $ 45,000
Interest $ 2,000
Out-of-pocket Expenses $ 12,486
Past Wage Loss $ 23,933
Interest $ 900
Fox v Wood $ 1,100
Past Superannuation Loss $ 354
Future Wage Loss $ 50,000
Future Superannuation Loss $ 3,200
Future Medication $ 10,000
TOTAL $148,973

97. I am conscious that in assessing some elements of the award I may have been too generous and in others niggardly. But as a global figure that sum seems to me appropriate.

98. I direct the entry of judgment for the plaintiff for $148,973.