Maria Victoria Garcia v Alexander James Blunden [1994] ACTSC 4 (21 January 1994)

SUPREME COURT OF THE ACT

MARIA VICTORIA GARCIA v. ALEXANDER JAMES BLUNDEN
No. SC641 of 1991
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - personal injuries - motor car accident - displacement of previously ununited fracture of clavicle - multiple operations - scars at neck and hip - difficulties at work - no issue of principle.

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

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA, 31 August 1993
21:1:1994

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Vandenberg Reid

Counsel for the Defendant: Mr C S Leahy

Instructing Solicitors: Abbott Tout Russell Kenedy

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $166,599.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 12 November 1987.

2. The plaintiff was born in Chile on 13 May 1963 and came to Australia at the age of 11 in 1974.

3. She finished schooling at the end of year 10 and then worked for three years as a waitress in Wollongong.

4. In November 1982 she fell while exercising on monkey bars and fractured her clavicle. She went to hospital where she was seen by a Wollongong orthopaedic surgeon. There appeared to be no displacement and she was given a sling, which she wore for about three weeks. At the end of that time there was little tenderness or pain and further x-rays were not taken to confirm whether the fracture had united. A few months later there were no symptoms at all in the area of the left clavicle.

5. At about that time she came to Canberra and again worked as a waitress and cook.

6. She married in 1985 and on 6 January 1986 she began employment with BBC Hardware at Belconnen, initially on a casual basis. Her position was made permanent on 4 February 1986.

7. On 17 March 1986 she was a passenger in a car being driven by her husband which collided with another car while being backed out of a car park. She hurt her neck. She had some days off work and consulted her general practitioner on a number of occasions over the next year. He prescribed physiotherapy.

8. On 19 August 1986 she was seen by Dr Morris, orthopaedic surgeon. Her neck was no longer sore but she had discomfort on rotation and occasional headaches. He diagnosed a mild muscular strain of the cervical spine. He expected the symptoms to subside over three to six months. She was fit to work and he did not think the injury would predispose her to further cervical degeneration.

9. After early 1987 she had no further problems with her neck resulting from that accident.

10. The accident the subject of this action took place on 12 November 1987. She was driving a car in a one way street in a line of traffic. The car ahead of her stopped for no discernible reason. She braked to avoid a collision and the car behind her, driven by the defendant, collided heavily with the rear of her car, forcing it onto the side of the road, facing sideways.

11. She was wearing a seat belt but she was severely shaken up. She was helped from her car and sat by the side of the road. She felt dizzy and had a very sore head and neck and pain across her chest and left shoulder.

12. Her husband drove her to Woden Valley Hospital where she was given pain killers, observed for a while and then sent home with a soft collar.

13. She spent a very uncomfortable night and next day returned to the hospital where she was referred to the physiotherapy department where it was noticed that her left clavicle was fractured. X-rays were taken which confirmed the fracture of the clavicle and that there were no demonstrated abnormalities of the cervical spine.

14. She was referred to Dr Morris, who saw her on 15 November 1987. He had further x-rays taken on 2 December 1987 which demonstrated an ununited fracture of the mid-shaft. The appearance also demonstrated to him that the old injury of 1982 had not united. He referred her initially to the physiotherapy department at the hospital for treatment of her cervical spine. The department reported,

"Ms Garcia was referred on 8 December 1987 by Dr P Morris an
orthopaedic surgeon for treatment of her cervical spine. She reported
bilateral upper trapezius pain with some radiation into the left upper
arm, and daily "pounding" headaches. Her pain was aggravated by any
movement; relieved by rest heat and medication. The pain did not
disturb her sleep, but Ms Garcia reported being very stiff in the
morning.
Objectively all movements were limited by pain. Ms Garcia received
treatment on the following dates:-
8 December 1987 21 December 1987
10 December 1987 23 December 1987
14 December 1987 8 January 1988
16 December 1987 14 January 1988
18 December 1987
On discharge she reported that the left clavicle pain was causing her
more of a problem than the neck pain and headaches."

15. On 10 March 1988, at John James Hospital, Dr Morris operated under general anaesthetic. He performed an open reduction, plating and bone grafting at the ununited fracture. The donor site for the bone graft was her left hip.

16. She spent five or six days in hospital. The process of recovery was very painful, not only at the fracture site, but also in the hip.

17. The pain in the hip continued for months and even now there is a feeling of numbness down her leg and of acute pain if the site is bumped. There is a long scar of about seven centimetres extending posteriorly from the iliac crest and a large puncture mark on the hip together with other scars from the surgical drain which appear to be permanent and quite noticeable. She is embarrassed by the scars when swimming.

18. After returning home from the operation she stayed in bed for four or five weeks and was cared for by her husband and a friend, Mr Notaras.

19. X-rays taken on 20 April 1988 showed that the fracture had not yet united.

20. In early August 1988 x-rays revealed some loosening of the plate and screws so that on 19 August 1988 Dr Morris again operated under general anaesthetic at Royal Canberra Hospital. He explored and tightened the plate and screws. She was in hospital overnight but again was in pain and needed assistance during her recovery.

21. By 24 January 1989 the x-rays revealed that the plate and screws remained in good position and the fracture was consolidating. She was still suffering discomfort in the cervical spine and Dr Morris found it difficult to separate the neck symptoms from the clavicular symptoms. He expected both to settle over about a year.

22. She had become separated from her husband in mid-1988. Later, her compensation payments ceased and she went on to sickness benefits. She resigned from her employment with BBC Hardware. Over the latter part of 1988 she felt herself unable to return to work at the hardware shop as it involved constant use of her arm.

23. During 1989 she began looking for other work and in July 1989 she obtained employment in a shoe shop called Williams the Shoeman. Her neck caused her no difficulty but she was restricted by not being able to use her left arm constantly when moving stock on and off the shelves.

24. On 8 September 1989 she again went into John James Hospital where Dr Morris operated under general anaesthetic to remove the plate. She was in hospital overnight. Dr Morris reports that she would have been unsuitable for work for three weeks after the surgery. However, her employer was not prepared to allow her more than one week off, and that without pay, so she resigned.

25. At his review on 20 September 1989, when he removed the sutures, Dr Morris found that the clavicle had fully united and he felt she was fit for return to normal duties.

26. On 1 November 1989 he reported to the workers compensation insurer that he thought it likely that she might have minor discomfort in the region of the fracture and she had a small cosmetic scar where the plate had been inserted and removed. He did not think she would be left with any significant residual disability from a functional point of view.

27. The plaintiff's evidence was that she felt that she could not have returned to work at the shoe shop in any event because when she lifts her arms, her left hand goes into a spasm, closing up so that she has to use her other hand to straighten the fingers out.

28. She did not look for work over the rest of 1989 or during 1990.

29. In November 1990 she moved to Wollongong. On 8 November 1990 she consulted Dr Avila, a general practitioner in Wollongong, complaining of neck pain and tenderness at the mid clavicular area. After he had seen her a number of times he arranged for x-rays which showed a good solid union of the fracture. He later referred her to Dr Manohar for further treatment. There is no report from Dr Manohar, and she said in evidence that he did not give her any treatment, or any particular advice.

30. In June 1991 she gave birth to a child and soon afterwards returned to Canberra where she consulted Dr Howe as her general practitioner. She told him she was experiencing difficulty in picking up objects with her left hand. She was referred to Dr Newcombe, neurosurgeon, who saw her on 19 November 1991. She complained of pain on holding her left arm up, the pain extending to the elbow. His examination and test suggested thoracic outlet syndrome. He referred her to Dr Andrews, whose studies did not demonstrate any definite deficit. Dr Newcombe nevertheless felt that her pain was due to costo-clavicular compression following the fractured clavicle. He advised an operation, which he performed on 30 January 1992, to provide space for all the elements of the brachial plexus. She spent three or four days in hospital, again suffering a lot of pain.

31. In June 1992, Dr Newcombe reported as follows,

"Following this procedure she has had some residual pain, mainly arm
ache intermittently. Overall there is less pain than pre-operatively.
Hanging out washing and prolonged driving tended to provoke the pain.
She is not working but doing housework at home and caring for one
child.
There is some persistent tenderness in the supra-clavicular fossa.
An MRI of the cervical spine was done on 27.5.92. This showed no
intervertebral disc herniation and in particular the C6-7 disc showed
no lesion.
I expect that her residual pain will gradually settle. Further
investigation and treatment are not required.
In summary, following the fractured clavicle for which grafting was
required she also needed decompression of the brachial plexus for
thoracic outlet syndrome."

32. That operation has also left a scar, which distresses her.

33. Dr Andrews examined her at the request of her solicitors on 30 April 1992. She mentioned to him the tenderness over the clavicular area and some neck pain, and also unusual symptoms of the muscles in the left hand and forearm going into spasm with clawing of the hands.

34. Dr Andrews noted that his earlier electrical studies had not demonstrated any thoracic outlet or brachial outlet problem, and he was not sure why Dr Newcombe had operated. The plaintiff of course had no such reason, or any reason, to query the advice she had received to undergo the operation.

35. Dr Andrews concluded his summary as follows,

"The residual problem I believe is her cervical spine. It could either
be a facet joint or disc problem at C6-7 which I believe requires
further investigation. An MRI scan of the region should clarify one
way or the other what the underlying pathology would be.
If the MRI scanning shows no evidence of a disc prolapse I would think
she would be a good candidate for a facet joint block at C6-7 and there
is a good chance that the problem there would settle down. Once that
is undertaken and sorted out, I think she should be able to return back
to gainful employment."

36. On the same day, Dr Andrea examined her for the defendant. She described to him also how her left hand would go into spasm when she tried to lift anything heavy with the left hand. She had pains extending from behind the left ear down the left side of the neck to the collar bone. She also described the numbness in front of the left thigh. She did not think she had suffered a significant whiplash injury to her neck.

37. He noted, in addition to the scar on the hip, a seven centimetre oblique surgical scar on the left side of the front of her neck and a ten centimetre irregular scar above the middle of the left collar bone with marked tenderness of the tissues. The bone of the clavicle was irregular and very tender. There was a slight depression below it. There was a slight limitation of rotation of the neck due to pulling on the left base of the neck in the clavicular area. The actual neck movements were full, free and painless and there was no tenderness of the muscles at the back of the neck. The whole of the front of the upper half of the left thigh was numb to pin prick.

38. His opinion was as follows,

"However, the accident appears to have created further damage resulting
in the various operations and her present condition. The brachial
plexus (nerves to the arm) passes just underneath the clavicle in the
region of the fracture. There must be a lot of scar tissue in the area
producing the pain and the muscular spasms of which she now complains.
The last operation does not appear to have helped her very much and,
although it is not long since this was done, it should have produced
some improvement by now.
It may be another six to twelve months before a final prognosis will be
possible but I think Mrs Garcia will continue to have pains for some
considerable time to come.
The numbness in the front of her left thigh is due to the severance of
a cutaneous nerve during the harvesting of the bone for the bone graft.
This is permanent and is a nuisance rather than a major disability.
I doubt that any treatment is indicated at present, apart from pain
relief and a review in six to twelve months may provide a better idea
of her future prognosis."

39. Dr Andrea's prognosis was correct. On 23 July 1992 she attended Woden Valley Hospital again, complaining of left shoulder pain radiating to the elbow. The pain was aggravated by elevation of the arm and relieved by rest. On examination there was some limitation of movement as well as signs of neural tension. The physiotherapy department gave her mobilising exercises and heat treatment on six occasions over July and August and discharged her on 19 August 1992 with an ongoing home program.

40. Dr Howe saw her on 18 February 1993 for pain across her shoulders and left side of the neck. He advised laser treatment. She has not received any further treatment.

41. Dr Andrea saw her again on 31 March 1993. He did not think she had altered since April 1992, nor had he thought that she would.

42. In August 1993, Dr Newcombe could see little change from the situation as he saw it in June 1992.

43. Dr Morris examined her for her solicitors in July 1993. He thought that the exploration of the supra-clavicular region had aggravated the nerve irritation. This seems to me consistent with Dr Andrea's comment that most of her problems are associated with scar tissue caused by her fracture and various operations. Dr Morris and Dr Andrea also both agree that her condition is unlikely to improve to any great extent and that further surgery is not indicated.

44. They agree that she would have difficulty with work involving excessive lifting or using her hands above her head but that if she can avoid that activity she is not significantly hampered in her ability to work.

45. None of the doctors were required to give evidence or be cross-examined.

46. I do not think that the suggestion of Dr Andrews that she has facet joint problems is supported by any other indications. The CT scan of 27 May 1992 seems to exclude it and Dr Andrea's explanation of the cause of her symptoms is the most likely, to my mind.

47. The plaintiff's credit was attacked on the basis of a false declaration to Williams the Shoeman when she applied for the job there. She declared that she had no disabilities or health problems. She also gave what in the document was a misleading description of her previous experience. I accept that she did so in order to get the job. It does not follow that she has given false evidence. If anything, the incident is more consistent with her being anxious to get work than with her avoiding work in order to inflate her damages.

48. Some reliance was also placed on the absence of documentation by the doctors of some of her complaints but I think that there is a consistent pattern of their recording those that were significant and there was nothing in the cross-examination or in the reports that causes me to conclude that she was not telling the truth in her evidence. In particular there is evidence of complaints to doctors about the numbness at the top of the thigh and the effect on her hand of reaching above her head. Not only is her evidence on those matters credible, it is explained by the opinion especially of Dr Andrea.

49. The plaintiff says that she has been looking for work. I think she may well be keeping a look out in case some suitable job becomes available, but that the principal factor that restricts her choice at present is the age of her child, not the restrictions resulting from the accident.

50. It is probable that when her child goes to school she may well seek work more actively. There will be many jobs that will be within her physical capacity. But it must be acknowledged that she would be unlikely to get a job which required constant lifting or the use of her left arm above her head. She has no real clerical or other skills. The result is that she has suffered to some extent a diminution in her income earning capacity.

51. In summary, she suffered in the accident a severe shaking up which displaced a previously ununited fracture of the clavicle. She underwent operations by Dr Morris to reduce the fracture, to plate it with a graft, to fix the screws and to remove the plate, and by Dr Newcombe to free the nerves. The last operation probably did more harm than good but that is a risk of neurosurgery. She is left with continuing pain and restriction, and with significant scarring both at the collar bone level and on her hip. The scars distress her. She is 30 years of age.

52. For her pain and suffering I award $80,000.00 of which $20,000.00 would relate to the future. The pain and suffering has not been spread evenly over the period since the accident, most of the operations being before 1990. I award $10,000.00 for interest on the past component of general damages.

53. The out-of-pocket expenses are agreed at $12,922.56.

54. The value of the services voluntarily provided to her while she recovered from the operations is not contested and is quite moderately claimed at $1,326.24.

55. She received workers compensation amounting to $8,599.00, and in the absence of the employers' records, through no fault of the plaintiff's advisers, the Fox v Wood component is conservatively estimated at $2,000.00.

56. The past loss of income claimed in the particulars is based on a net weekly wage that she was receiving in November 1987 of $231.60. By August 1991 it would have been about $320.00 a week. It is therefore obvious that it is not necessary to discount the claim on account of contingencies. The claim is also taken only to the time when she was about two months pregnant. The amounts set out in the particulars total $33,350.00, which I allow in full.

57. She received $8,599.00 in workers compensation. On the balance of the past wage loss I award interest amounting to $12,000.00.

58. For the diminution in her future income earning capacity, taking into account also the largely discretionary sum for cost of future medication, I award $15,000.00.

59. The total award is therefore made up as follows,

Pain and suffering $80,000.00
Interest 10,000.00
Out-of-pocket expenses 12,923.00
Griffiths v Kerkemeyer 1,326.00
Fox v Wood 2,000.00
Past loss of income 33,350.00
Interest 12,000.00
Future loss of income 15,000.00
TOTAL $166,599.00

60. I direct the entry of judgment for the plaintiff for $166,599.00.