Margarita Kostovska v Darryl John Surkitt [1994] ACTSC 134 (16 December 1994)

SUPREME COURT OF THE ACT

MARGARITA KOSTOVSKA v DARRYL JOHN SURKITT
No. SC 495 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 - Damage to upper lumbar spine - Partial loss of income earning capacity - No issue of principle.

HEARING

CANBERRA, 26 October 1994
16:12:1994

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Meyer Boettcher and Clapham

Counsel for the Defendant: Mr Staehli

Instructing Solicitors: Macphillamy Cummins and Gibson

ORDER

Judgment be entered for the Plaintiff for $137,094.00.

DECISION

MASTER A. HOGAN This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 17 November 1989.

2. The plaintiff was born in Macedonia in October 1965. She underwent 12 years of schooling there at secondary school, and then studied law for 3 years at a university.

3. She abandoned her studies when she met her husband, whom she married in 1988. They came to Australia in March 1989.

4. She then spoke no English, but she obtained a job as a cleaner within months of coming to Australia. She had a full time permanent cleaning job with Coles at Queanbeyan, where she started in July 1989.

5. She was then already pregnant, but she intended to stay at work for as long as possible. Her husband was then still looking for work, but she also wanted to be independent.

6. She was attending Dr Hart for prenatal care. At a routine visit on 6 November 1989 he noted that she was well, with the pregnancy progressing in a normal manner at 33 - 34 weeks.

7. She had ceased work a short time before that visit.

8. On 17 November 1989 she was a front seat passenger in a car being driven by a friend, Mrs Dimovski. She was wearing a seat belt. She was resting, if not actually asleep. The car was struck by another car at the side from behind. She was jolted forwards. She stretched out her arms instinctively to protect herself. She felt difficulty in breathing. Her friend helped undo the seat belt and assisted her out of the car. She had some difficulty in moving her right leg. She was put back into the car and an ambulance was called. She was taken to Royal Canberra Hospital.

9. The hospital notes record that she was complaining of pain in the right lower abdomen and paraesthesia of the right outer thigh. There was tenderness at those sites, but no bruising or swelling. She was 36 weeks pregnant, so she was admitted for rest and observation. A foetal ultrasound revealed no abnormalities and no evidence of concealed bleeding. She was examined by Dr Andrews, neurologist, about the numbness in the right leg. She complained of paralysis while lying down, but was able to raise the leg off the bed. The numbness did not correspond to any known nerve distribution. It was felt that hysteria may have been a contributing factor.

10. She was given reassurance about her baby and her leg, and was discharged from hospital on 22 November 1989.

11. In evidence she said that she also had pain in the back, but when she complained about it she was told, "Don't worry, honey. It is nothing, you know. It is just from your pregnancy". She was given a hot pack for her back. I find that evidence quite credible.

12. She had not suffered back pain before the accident, either from her pregnancy or otherwise.

13. When she was discharged she was not able to walk, and she still had a very sore back. At home she was distressed. Her general practitioner referred her to Dr Hart, who saw her on 24 November 1989. She was complaining still of groin pain and numbness in her right leg.

14. She appeared to him to be unable to move her leg, and he arranged for her admission to Woden Valley Hospital. There she was found to have stocking anaesthesia of the right leg, with hypertonia and resistance to all movements of hip and knee, both active and passive. There was no neurological deficit. Professor Doe was unable to find any physiological cause for her symptoms. He recommended psychiatric assessment. I assume that because of her pregnancy no radiological investigations were done at that time.

15. Dr Kingston, psychiatric Registrar, interviewed her on 30 November 1989. She obtained a history of recurrent flashbacks of the accident, disturbed sleep with nightmares, tearfulness, anxiety, dizziness and difficulty in concentrating.

16. Dr Kingston took into account the plaintiff's recent migration, her pregnancy, financial situation and lack of social support. She diagnosed a post traumatic stress disorder. Between the initial interview and the birth of the plaintiff's son on 15 December 1989 Dr Kingston visited her on three occasions, counselling her and arranging support for her. She made a gradual improvement, and at the time of Dr Kingston's last visit, after the birth of her baby, she was sleeping well, and denied any anxiety. Despite continued pain in the right thigh she was progressing well with the graded ambulation and physiotherapy. She was discharged from hospital on 22 December 1989, walking with the aid of a stick. Her back was still sore.

17. She and her husband moved house at about that time. She consulted Dr Rodgers at the City Health Centre, about a week after her son was born. He noted limitation of spinal flexion and extension but normal rotation. There was diffuse tenderness at L4/5, and a global weakness of muscles of the right leg with sensory loss below the right knee. Dr Rodgers arranged for an Xray. The report dated 21 February 1990 states that there were compression fractures of the upper borders of T11 and T12. Dr Rodgers thought that the fractures in the thoracic spine, which he said were not causing any symptoms, were old. I note however that there was no suggestion in the evidence of any incident before the accident that could have accounted for those compression fractures. Dr Rodgers also thought that the presentation and clinical findings suggested a functional cause for the symptoms in her right leg. He referred her to Dr Andrews, neurologist, who saw her in April 1990. He conducted nerve conduction studies, and arranged a CT scan. They did not demonstrate any significant lumbar disc pathology. He also attributed her unusual physical symptoms in the leg to functional overlay. The physical injuries he thought were largely soft tissue, and could be expected to resolve over about six months.

18. She was referred to Royal Canberra Hospital for physiotherapy, which gave some improvement in posture, and enabled her to walk without a stick. She still, however, dragged her right foot when walking, and walked with her right knee in extension.

19. Dr Rodgers referred the plaintiff to Dr Mickleburgh, a psychiatrist with a rehabilitation service. He began seeing her in June 1990, and continued to see her at three to four weekly intervals until January 1991. She complained of having experienced a severely depressed mood, daily headaches and insomnia, in addition to pain in the groin and thoracic back and anaesthesia below her knee. Dr Mickleburgh reported in December 1990 that the plaintiff's physical symptoms improved slowly. She no longer walked with a stick, and could manage housework. She was found to have an underactive thyroid gland, which was treated with hormone replacement.

20. Dr Mickleburgh thought that her psychological symptoms were consistent with a diagnosis of post traumatic syndrome.

21. During 1991 the plaintiff began looking for light work. She did not feel capable of returning to cleaning work. In that and the previous year she had attended English classes at TAFE. She was able to give her evidence in English, with an interpreter standing by in case of difficulty. She hardly found it necessary to avail herself of his services. I would assess her as an intelligent woman, who genuinely wanted to get better and become independent again. Her brother in law and her mother in law also arrived to live with them, and she anticipated that if she could find suitable work, there would be help available to look after her child.

22. She did not find any suitable work, and in late 1991 became pregnant. She gave birth to twin girls on 4 June 1992. They were born normally, but she suffered backache whilst carrying them. In September 1992 she began looking for work again.

23. On 24 December 1992 Dr Macleish, surgeon, examined her on behalf of the defendant. She complained of continuing headaches and back pain. She was walking normally, but her right leg became numb if she walked or stood for a long time. He detected no restriction of movement on examination. His assessment was as follows;
"In my opinion, this lady has been damaged as a result of

the motor accident, but not badly so. Taking everything into
account, my view is that she has received musculo tendinous strain
to the back and neck and probably deep seated bruising to the region
of the right hip and thigh. There seems to have been more than the
usual emotional reaction to such an accident.
I believe that the pregnancy was not adversely affected,
and she has recovered fully from the physical injuries. There is a
continuing emotional reaction which accounts for some symptoms which
are out of proportion to the physical findings; it is this, too,
which I hold responsible for her lack of full cooperation in the
physical examination.
I found nothing which calls for any medical treatment at
this stage, and I find no barrier to full recovery in the fullness
of time."

24. He also found no barrier to her participation in light industrial, domestic and recreational activities.

25. On 15 January 1993 Dr Lucire, consultant psychiatrist, also examined her for the defendant. She found evidence of reactive anxiety after the accident, following a frightening accident and personal injury. She thought that the plaintiff had largely returned to normal by the date of the examination.

26. On 23 March 1993 Dr McGrath, rehabilitation consultant, saw her at the request of her solicitors. She was complaining of continuous but fluctuating pain in the upper lumbar region, pain in the right groin and paraesthesia in the right leg. Headaches also were continuing to occur.

27. He disagreed with the diagnosis of post traumatic stress syndrome. He was convinced by the Xrays and the history that the accident had caused injury to the upper lumbar spine. The abnormal psychological behaviour was secondary to this organic injury. As he pointed out, Dr Mickleburgh also thought that her main symptoms had been organic in nature. He thought she would continue to have low grade disability. He recommended active remedial exercises and ergonomic advice.

28. She was not then fit to return to cleaning work. Effective rehabilitation, he thought, might make her fit.

29. Dr McGrath reviewed her in December 1993. She had undergone intensive training on the machinery at the Rehabilitation Centre, together with home exercises. She had become much better, and by September was virtually pain free. She was actively looking for work. On her capacity for work he commented;

"I believe that Margarita is likely to be in a position to return
to the work force, but I cannot say with any degree of surety that
she would be fit for full-time employment in the cleaning industry.
This occupation requires frequent forward flexion and extension of
her spine, and this is still an aggravating movement.
Unfortunately, the disability takes the form of lack of endurance,
and this is difficult to determine by simple examination, and in
fact, requires more extensive functional testing or workplace trial.
On the balance of probability, I believe that a return to full-time
cleaning duties is not likely to be possible."

30. His recommendations were;

"I have recommended to Margarita that she consider retraining into a
more sedentary occupation, and I believe that she is interested in
children and perhaps pre-school teaching, and this would be entirely
suitable. This is clearly a difficult situation for her with severe
financial restraints with her husband unable to obtain employment as
yet. The only physical restriction I would place upon her is the
avoidance of long hours of physical work.
The only further treatment required is the continuation of active
remedial exercise.
The prognosis is for the near resolution of spinal pain, but the
continuation of a certain vulnerability to back ache under
conditions of trauma or excessively harsh or demanding physical
stresses."

31. In April 1994 she obtained casual employment as a housemaid at the Queensgate Hotel in Queanbeyan. There was a restriction on the number of hours available to her, as work was usually offered to staff who had been longer at the Hotel.

32. In September 1994 she obtained similar work at the Kingston Towers, where she works about 30 hours a week, on average. She is able to cope with the work, with some continuing pain on exertion. The work is lighter than the cleaning work that she was doing before the accident.

33. The plaintiff's evidence about her pain and suffering and disabilities was not really challenged in cross examination. The real matter in contention was the question of economic loss.

34. The only doctor to be called to give oral evidence by telephone was Dr McGrath. He adhered to his opinion, which was based not solely on the Xrays, but principally on the history and clinical examination.

35. I have no doubt that the plaintiff was as accurate as possible in her recounting of the history and her symptoms. She had done her best to get back to work. Dr McGrath's diagnosis is consistent with the treatment that he gave and the improvement she made as a result. I accept Dr McGrath's diagnosis and opinion. When he disagrees with the diagnosis of post traumatic stress syndrome I do not understand him to be saying that the plaintiff did not suffer psychological consequences from the accident. I take him to mean that the psychological consequences were not a sufficient explanation for the pain and disabilities that she was suffering. He was convinced that they had a genuine physiological explanation, and that they were not merely functional in nature. In that I agree with him.

36. In addition, however, I find it quite understandable that, having recently arrived in Australia, a very different type of place from Macedonia, without the support she would have had there from family and friends, her husband not yet in constant employment, having only recently stopped work because of her pregnancy, she would have been particularly vulnerable to emotional and psychological trauma resulting from a motor car accident. The psychiatric evidence is consistent with that hypothesis, and I think that she did suffer emotional and psychological consequences, even though they are not the explanation of all her pain and disability.

37. With determination and intelligence she has largely overcome those consequences, and has built up her physical abilities. I also agree with Dr McGrath's assessment of her capacity for physical work.

38. She will always have some intermittent pain to remind her of the accident. She is only 29 years of age.

39. For her pain and suffering I award $35,000, of which only $5,000 would relate to the future. The greater part of her pain was suffered in the early part of the period since the accident. I allow $4,500 for interest on the past component of general damages.

40. Counsel for the defendant submitted that the defendant should not be made responsible for the expenses of the plaintiff's stay in hospital from the date of the birth of her son on 15 December 1989, as she would have been in hospital for about those six days in any event. There is no evidence either way about that issue. The hospital has charged her the total amount. Had she not been admitted following the accident, she might have been admitted for her confinement as a patient not privately insured, and not responsible for the fees. She was still suffering the after effects of the accident, and Dr Hart was of the view that she should not have been discharged from Royal Canberra Hospital when she was. He fairly promptly arranged for her to be admitted to Woden Valley Hospital. In my opinion the whole of the period that she spent in hospital is attributable to the accident. The arithmetic is agreed. I allow $25,094 for out of pocket expenses. They are unpaid, and interest is not claimed in respect of them. Since they were unpaid, the Community and Health Department has included interest to 25 October 1994 in the account. There is no evidence of the basis on which it is calculated, but I think that it is recoverable in the circumstances, but I do not include any amount for interest from October to the date of judgment, in the light of the discretionary nature of other elements of the total award.

41. The plaintiff claimed in her particulars an award based on the value of the services that her husband provided to and for her, from the date of the accident to the hearing. That claim obviously can not be sustained.

42. When she was discharged from Woden Valley Hospital at the end of December 1989 she obviously needed constant care, which her husband provided. He obviously had to do many things for the baby that she would otherwise have done. That situation lasted for about six months. By the end of 1990 Mr Kostovski was doing the heavy work around the house, but not all the housework. His mother and brother were also living with them by then.

43. I think it is clear from her evidence that her attitude was that she wanted to get back to doing her share of the housework as soon as she was able.

44. As a matter of discretionary judgment I allow $7,500 for the value of the domestic services provided by other members of the household.

45. On the question of past loss of wages I accept her evidence that she would probably have returned to work at about the time her brother in law arrived, at the end of January 1991. She would also have taken off at least six months for the birth of the twins, perhaps more. I am also satisfied that she did in fact take reasonable steps to get back to work as soon as was practicable. Not many people with an injured back and lack of facility in English would have been able to do better than she did.

46. There was no contest about the accuracy of the basic figures used in the Particulars.

47. After allowing for contingencies and the moneys she did earn, I allow $45,000 for past loss of earnings. Interest on that whole sum in accordance with the Practice Direction from 1 January 1991 to date would be $23,418. A strict calculation would not be accurate, as allowance must be made for the period for which she would have been off work for the birth of the twins. I allow $10,000 for interest on past wage loss.

48. For the future she is now earning more than she was at the date of the accident. I expect that in general she will usually be able to continue to do so.

49. However, it is still on the cards that she might have more trouble with her back, in the type of work she is doing, and that if she lost her job for any reason, she would be restricted in the choices and types of jobs open to her.

50. I allow $10,000 for diminution of future income earning capacity.

51. A total award should therefore be made up as follows,

Pain and suffering $35,000
Interest 4,500
Out of pocket expenses 25,094
Griffiths v Kerkemeyer 7,500
Past loss of earnings 45,000
Interest 10,000
Diminution of future income
earning capacity 10,000
_______
Total $137,094

52. I direct the entry of judgment for the plaintiff for $137,094.00.