Margaret Knight v Gordon Callaughan [1994] ACTSC 13 (24 February 1994)

SUPREME COURT OF THE ACT

MARGARET KNIGHT v. GORDON CALLAUGHAN
No. SC883 of 1992
Number of pages - 7
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Pre-existing degenerative changes in cervical spine - Whiplash injury - Exacerbation - Emotional distress - Exaggeration - No issue of principle

HEARING

CANBERRA, 21-22 September 1993
24:2:1994

Counsel for the Plaintiff: P L Sheils QC with P Burton

Instructing Solicitors: Scott Sheils and Glover

Counsel for the Defendant: F G Parker

Instructing Solicitors: Sly and Weigall

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $74,186.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 20 October 1989.

2. The plaintiff was born in 1943. She left school at the age of 15, worked as a pharmacy assistant and trained as a psychiatric nurse. She married at the age of about 22. She had four sons.

3. The marriage was not a happy one. Her husband was an alcoholic and violent. There was a separation about ten years ago, followed by divorce some years later. There were conflicts, especially about custody of the youngest son.

4. In 1987 she consulted Dr Quay, her general practitioner, complaining of neck pain. He had x-rays taken, which showed minor degenerative changes only, without evidence of disc damage. He prescribed anti-inflammatory medication, which she soon stopped taking because the side-effects were worse than the neck pain.

5. In 1988, as her youngest son approached the end of his time at school, she decided to improve her chances of employment and began a course of study for her Year 12 certificate. She then intended to look for work, perhaps in the public service, or any kind of clerical work. It was also important to her self-esteem that she should obtain the educational qualification.

6. In the later years of her marriage she had suffered greatly from stress, but by 1989 she was in good health. She was already working part-time as a cleaner. She was anxious and willing to work, again for her self-esteem as well as for money.

7. On 20 October 1989 she was driving in Hindmarsh Drive when, at the intersection with Mugga Lane, another car turned across her path and collided with her. She was wearing a seatbelt. It was a violent collision. Her head was jolted to the left and to the right. She did not lose consciousness. She stumbled out of the car and sat by the side of the road.

8. A friend, Mrs Edwards, was called, and took her home, then to Dr Quay and then to Woden Valley Hospital. Mrs Edwards gave evidence that she was complaining of pain to her back, neck and right arm. The plaintiff was x-rayed and sent home. She developed bruises over the arms and noticed the sensation of pins and needles in her legs.

9. Dr Quay reported that when he saw her on the day of the accident she was suffering neck pain and bilateral pain. All neck movements were painful and there was tenderness in the C5/6 region. The x-ray showed narrowing of the C5/6 and C6/7 disc spaces. He prescribed analgesics, a cervical collar, rest and physiotherapy.

10. She began the physiotherapy on 3 November 1989. She received physiotherapy treatments six times a month or more until July 1990 and then about once a week until August 1991.

11. Her solicitors sought a report from Dr Keiller, who saw her first on 22 November 1989. She presented to him in pain, anxious and frustrated. He found tenderness in the neck and lower back on palpation over the C5/6 and L5/S1 levels. There was also some tenderness in the paravertebral and parascapular muscles in the neck, and the paravertebral muscles in the lower back. There was slight limitation of movement to the right in the neck, but otherwise movements were full and pain free.

12. He diagnosed soft tissue injury to the neck and lower back, which was then still in the acute stage. He noted that she had previously needed help when depressed and counselled sympathetic support. He believed that her ultimate prognosis was good and that she was fit to continue her studies, though at the price of some continuing discomfort. She did not however go back to her studies at the School Without Walls.

13. Dr Andrea examined her for the defendant on 28 November 1990, a little more than a year after the accident. She was complaining of pain in the left shoulder, left arm and neck, and headaches. She was distressed and emotional. On examination, all movements were normal, except for a very slight limitation at the left shoulder. There was a global loss of sensation to pin prick over the whole of the left arm, which was not related to any nerve distribution. He was not convinced that she had a significant neck injury, but she was obviously upset and depressed. He noted also her pre-accident emotional state. He commented:-

She seems to blame her accident for lots of things but I do
not think this is reasonable. However, the accident has no
doubt added somewhat to her emotional upsets and has shaken
her up, though I doubt it has done any permanent damage. I
think her prognosis is not good because of her numerous
emotional problems.

14. On 13 December 1990 Dr Cairns, orthopaedic surgeon, also examined her for the defendant. He found her vague and theatrical. There was a claimed restriction of all cervical movements and a glove decrease in sensation on the upper left arm and into the shoulder, neck and scapular area. There was also a stocking decrease in sensation on the left leg.

15. His conclusions were as follows:-

(f) There is a strong suggestion in the claimant's
presentation that there is some emotional component in her
presentation, and there are positively signs of psychogenic
magnification on clinical examination. Nevertheless, it
appears that the mechanism of injury involved a high

velocity

collision, and in view of the preceding history of cervical
symptoms associated with pre-existent degenerative changes
within the cervical spine, it would be reasonable to expect
her to have suffered some aggravation of symptoms arising

from

the cervical spine such as to preclude her return to gainful
employment "at the beginning of 1990". It is difficult to
gauge the extent of her ongoing disability due to the

obvious

psychogenic magnification, possibly contrived, and

histrionic

element in her presentation. In my opinion, there is every
likelihood that she would be fit to resume light manual
occupations including sedentary, mixed sedentary and
standing, sales, supervisory or administrative work, and I
would assume that that would qualify her for employment as

an

"assistant youth worker".
(g) Initially her incapacity would have reasonably been
attributed to injuries sustained in the incident alleged.
There is strong evidence of psychogenic magnification in her
presentation, and although such injuries can produce

symptoms

which may last for some time, she should be showing signs of
recovery within 18 months to 2 years of the incident.
(h) In general terms it would be reasonable to concede that
she would be disabled from day-to-day household and leisure
activities as described, although this incapacity is likely

to

steadily resolve over the next 6-9 months. Thereafter, any
ongoing symptoms could reasonably be attributed to the
pre-existent degenerative changes manifest in her cervical
spine.
(i) In my opinion, it would be reasonable to expect this

woman

to fully recover from apparent soft tissue,
musculo-ligamentous injury sustained in the accident in
question. However, there is a strong element of psychogenic
magnification in her presentation which throws some doubt

over

her future prognosis.

16. Dr Quay ordered a CT scan of her cervical spine in May 1991. There was no evidence of disc protrusion or narrowing of nerve root canals at C4/5 or C6/7. At C5/6 there was minor posterior disc bulging and some narrowing of the right neural canal.

17. Dr Keiller reexamined her on 5 July 1991. She was depressed. There was no restriction of neck movement. He did not doubt that she still had some neck and back pain, but believed it was grossly exaggerated for emotional reasons. Her condition was stable.

18. Dr Andrea reexamined her on 5 September 1991. She had not been working. She had been receiving manipulation of her neck and lumbar spine from Dr Ferguson, with some improvement. He thought her emotional state had improved to some extent.

19. On 10 September 1991, Dr Scott-Findlay also examined her for the defendant. She told him as well that Dr Ferguson's manipulations had made a marked improvement. This was also her evidence on the hearing. On examination he found her neck and spine to be normal. He thought the prognosis was excellent.

20. On 10 October 1991 Dr Roebuck examined her at the request of her solicitors. She told him she still had pain in the neck, both shoulders and some radiation down to her back. This had not improved recently despite considerable conservative treatment. He thought she had sustained a C5/6 disc protrusion in the accident, which was causing persistent pain and disruption to her life of a severe nature.

21. In the light of the impression that she had given to Drs Keiller, Andrea and Scott-Findlay during the previous three months I am not persuaded that her disabilities were as severe as Dr Roebuck seemed to think.

22. In February 1992 Mr Van Ierschot, her physiotherapist, reviewed the course of her treatment, which seems to have ceased in August 1991. Symptoms had fluctuated continually over the period of treatment as a result, he thought, "of family stress, her cleaning job, worries about her own future, financial stress and daily activities including horseriding, which seemed to be one of her few outlets".

23. She had been managing quite well when last seen in August 1991. He expected that she would always need to seek treatment for occasional flare-ups.

24. In late January and early February 1993 an enquiry agent observed the plaintiff and recorded her movements on videotape. She was able to reverse a car, looking over her left shoulder. Otherwise she was seen walking, attending to her horse, riding it slowly, bending over and carrying light objects. She mounted the horse from a block. She rode it at a walk. She simply moved about in a non-energetic way, without any visible signs of restriction or discomfort. Her movements as recorded are quite consistent with the complaints she made to Drs Keiller, Andrea and Scott-Findlay, and with their observations on examination.

25. Dr Scott-Findlay reexamined her on 12 January 1993. She said her lower back had not improved, but that her cervical spine had improved, due to Dr Ferguson's manipulations. She needed a manipulation only once every couple of weeks.

26. Again there was no restriction of movement on examination. In his opinion she was capable of small cleaning jobs, housework and study, and the prognosis was excellent.

27. Dr Andrea reexamined her on 14 January 1993. He found it difficult to find any disability that could be related to the accident.

28. Further segments of videotape were recorded on 30 and 31 August and 1 and 9 September 1993, but to my observation the recorded segments contained nothing new or different from the previous pictures.

29. There was no report tendered from Dr Ferguson. None of the doctors were required to attend for cross-examination.

30. The findings that I make on that evidence are that the plaintiff, before the accident, already suffered from the results of degenerative change in the cervical spine. As the result of family and other stresses she had also needed treatment for her emotional state.

31. For a relatively short period before the accident, however, she was in good health and spirits and was undertaking a course of education and some part-time work to improve her situation as her supporting parents benefit was ending.

32. In the accident she suffered a moderately severe whiplash injury to the neck and lower back, which exacerbated the underlying degenerative condition. She was treated conservatively with extensive physiotherapy. The accident, and the pain and limitations that resulted from it, adversely affected her emotional state.

33. Over about four years her condition fluctuated, but gradually improved to its present state. Her condition is now not a great deal worse than would have been the case even had the accident not occurred.

34. Before the accident she had been working part-time at a cash and carry shop and doing some part-time cleaning, as well as studying.

35. After the accident she worked part-time as a shop assistant until early 1992. From March 1990 to the present she has been doing light cleaning work for Mrs Hall and from November 1992 for Mrs Monahan also.

36. It is probable that had the accident not occurred she would have finished her studies at some time, though it is hard to tell whether she would have done so in one year or more. It cannot be anything more than a possibility that she would then have obtained employment significantly more lucrative than what she had. But it is probable that the accident deprived her of the opportunity, at least until now. With care she is as fit now as she would otherwise have been to engage in study or in the type of part-time work that suited her in the past.

37. If she does decide to proceed with her studies it may be a year or two before she is in the same position that she would have been in but for the accident. Beyond that I do not think that there has been demonstrated any significant diminution in her future income-earning capacity.

38. She will require medication and treatment from time to time when her symptoms flare up.

39. For her pain and suffering I award $30,000, of which $5,000 would relate to the future. Interest on the past component amounts to $2,175.

40. The past out-of-pocket expenses are not contested at $7,011. There is no evidence on which I could award interest on that item.

41. For the loss of the opportunity of increased earnings, both past and future, I award a discretionary sum of $30,000. Because of the discretionary nature of that item I do not think that an award of interest is appropriate.

42. There is no evidence on which to make a calculation of the cost of future treatment, but some amount is called for, which, again as a matter of judgment, I award at $5,000.

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

Pain and suffering $30,000
Interest $ 2,175
Out-of-pocket expenses $ 7,011
Loss of income-earning capacity $30,000
Future medical expenses $ 5,000
TOTAL $74,186

44. I direct entry of judgment for the plaintiff for $74,186.