Robin Rawson v Peter Harris [1994] ACTSC 5 (21 January 1994)

SUPREME COURT OF THE ACT

ROBIN RAWSON v. PETER HARRIS
No. SC212 of 1991
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - assessment - personal injuries - motor car accident - soft tissue injury - difficulties at work - decision to retire - no issue of principle.

HEARING

CANBERRA, 31 May and 26 August 1993
21:1:1994

Counsel for the Plaintiff: Mr G A Stretton

Instructing Solicitors: Macphillamy Cummins and Gibson

Counsel for the Defendant: Mr J D Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $185,605.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 30 March 1988. Liability is not in issue.

2. The plaintiff was born on 19 October 1932. After matriculating in 1949 she completed an Arts degree at Sydney University in 1953.

3. She then worked in a number of clerical, administrative and research positions in Australia, England and Papua New Guinea until, in 1963, she joined the Australian Public Service. In 1984 she was appointed to the Department of the Prime Minister and Cabinet, within the Governor General's secretariat. At the time of the accident she was the Director of the Australian Honours Secretariat, a position at ASO8 level. She was responsible for the direction of 15 other members of staff.

4. She had been injured in an accident involving a horse in England in 1955 and a motor car accident in Reid in 1971, and in the early 1980's had suffered from an irritable bowel syndrome, but in 1988 she was in good health and enjoying the very responsible position that she held. Sir David Smith, who was the Governor-General's Official Secretary, and who worked with her for six years, gave evidence that he had recruited her to Government House and that he regarded her as one of the best qualified people in the public service in relation to both Imperial and Australian honours. He confirmed that before the accident she appeared to have no physical difficulty in carrying out the functions of her office. Those functions often involved the handling of large numbers of files, which it was necessary to move from one building to another within the grounds at Yarralumla.

5. She had at one time thought that she would be required to retire at the age of 60. Sir David confirmed that he informed her that she would be able to continue at Government House until she was 65. I accept her evidence that she then formed the intention of working to that age. The only special restriction on her ability to do so was that she was caring for her 90 year old mother, and it is possible that if her mother's health were to deteriorate, her need to care for her might have affected her desire to continue at work. On the other hand, she would have been able to afford help in the home, and in fact her mother's health has not deteriorated to the present.

6. On the Wednesday before Easter she left her home in Cook with her mother as a passenger to travel to the South Coast. While travelling east on Parkes Way her car was struck from behind by a vehicle driven by the defendant. She had some little warning of the impending impact from her view in the rear vision mirror. Her car was struck at the back right hand corner and tipped towards its side. It did not overturn, however, and she managed to steer onto the median strip and pull up. She was wearing a seat belt and was thrown about violently in the impact. She was concerned for her mother, but was also shocked herself. Her mother refused to go to hospital in the ambulance that was called and after the police had taken details she drove home.

7. On the next day, she consulted Dr Foo, her general practitioner. She complained of having had chest pains overnight, which had settled, and pain over the left scapular region. He found that she had a full range of neck movements but with pain at the extremes of lateral flexion and rotation. There was severe tenderness over the left interscapular and infrascapular regions. Rotation of the dorsal spine was uncomfortable. He advised her to rest, which she did, but the pain increased in her face, neck, shoulder and lower back. Her sleep was disturbed.

8. Dr Foo noted pain over the left shoulder, neck and face on 13 April 1988. This steadily got worse over the next few weeks, and she became quite tender over the muscles of the neck and shoulders as well. Her neck became very still, to his observation. He prescribed analgesics, Orudis, a cervical collar and physiotherapy.

9. She had returned to work immediately after the Easter break and experienced great difficulty in carrying out her duties, but because of the importance to her of the committee that was to meet she carried on as best she could.

10. She had 10 physiotherapy sessions. With the stress, her irritable bowel symptoms flared up and she discontinued the Orudis because she felt it was making her bowel symptoms worse.

11. X-rays taken on 5 May 1988 showed no abnormality, but further x-rays in September 1988 showed minor degenerative change at C5/6 with slight instability at this level in functional views.

12. She was given Prothiaden to help her sleep and, later in May, was able to take some time off work.

13. Dr Foo certified that she was unfit for work from 24 May to 8 June 1988, inclusive. He referred her to Dr Yeo, consultant in spinal injuries and rehabilitation, who saw her first on 3 January 1989. At that consultation she appeared to him to be suffering from recurrent neck and shoulder pain. He suggested a modified exercise program using hydrotherapy and care in her posture.

14. Later in January 1989 she consulted Dr Foo complaining of tingling in the lower legs, throbbing in the wrists and heaviness and throbbing in the lower legs. He referred her to Dr Long, consultant physician, who could find no definite abnormality. Dr Foo attributed the symptoms to stress.

15. Dr Yeo reviewed her in March 1989 when there was some improvement which Dr Yeo expected to continue.

16. In June 1990 Dr Foo noted her complaints of left upper abdominal pain, flatulence, nausea and epigastric tenderness. This was consistent with a flaring up of her pre-existing irritable bowel syndrome, caused by her stress. Medication appeared to control the symptoms. She had consulted Dr Foo about anxiety symptoms caused by stress before the accident. He was cross-examined in some detail about the course of her treatment both before and after the accident. I think that the result of his evidence is as I have stated it, that her anxiety and stress, and related gastric problems, which predated the accident, were exacerbated by it and by the physical difficulties that it added to any stress she would normally have suffered at work.

17. On 17 October 1989, she was involved in another accident in which a car collided with the back of her stationary car. There was a marked flare up of her neck symptoms for about two weeks, when they subsided sufficiently for her to be able to travel to London.

18. The gastric problems continued, however.

19. On review on 2 January 1990, Dr Yeo found some improvement in the neck and shoulder muscles.

20. On 26 April 1990 he found a normal range of movement of the head and neck with no clinical abnormality on examination of the spine or paraspinal muscles. X-rays however identified severe degenerative change at the C2/3 level. He reviewed previous x-rays and reported that the noticeable progression of the degenerative process appeared to be the result of the trauma of the accident in March 1988. He was unable to say to what degree the accident of October 1989 aggravated the progressive degenerative changes. She remained susceptible to stiffness and neck pain which was related to the associated soft tissue damage in muscle and ligaments in the vicinity of the cervical spine.

21. There had been improvement since he had last seen her and he then expected a continued improvement with appropriate care such as local heat and massage and proper seating.

22. Despite the improvement in her muscular symptoms she found the restrictions that they caused at work irksome. She had difficulty in relating to staff as before. There were changes to work practices which she thought inappropriate, such as Sir David's having to come to the Secretariat to avoid the need to transfer files.

23. In April 1991 she decided to retire on her 59th birthday, which would be in October. She also decided to move then to Tweed Heads, where the weather would be warmer than in Canberra.

24. In September 1991, at a review by Dr Yeo, she complained of a recurrence of the neck and shoulder pain, relieved by rest and aggravated by rotary movement. Dr Yeo thought she was still gradually improving and suggested heat and gentle massage. He advised against traction and manipulation. He agreed that a warmer climate would be beneficial.

25. I do not think that it can be said that in 1991 her physical condition was such that it was necessary for her to retire when she did. But I do not think that the question must be posed in those terms.

26. It is clear that had she not been injured in this accident she would probably not have retired when she did.

27. It is also clear that it was reasonably foreseeable that such an injury might well result in such a consequence. There was no novus actus interveniens operating to break the chain of causation. Being the sort of person that she was, with her attitude to the high standards required by the work that she was doing, suffering the restrictions that she was, with the results that they entailed for her work and the way it was being done, did she act reasonably in retiring when she did? In my opinion she did.

28. She retired on 30 October 1991 and moved to Tweed Heads in December.

29. Meanwhile, on 27 February 1992, Dr Andrews, consultant neurologist, examined her on behalf of the defendant. He summarised her injuries as being of a soft tissue nature. He expected what he called the recent minor aggravation to settle again with rest. He contemplated a need for some physiotherapy from time to time, but no other active treatment.

30. During 1992 her neck and shoulder pain flared up. She consulted a general practitioner who referred her for physiotherapy. The physiotherapist suggested that she see Dr Yeo again.

31. Dr Yeo saw her on 25 June 1992. She was complaining of a recurrence of her neck and shoulder pain with some numbness in the hands, wrists, feet and ankles. On clinical examination some movements of the head and neck were restricted, particularly in rotation.

32. He suggested to her that she might benefit from two weeks of hospitalisation in the Spinal Rehabilitation program at Dalcross Private Hospital, giving his reasons for doing so in a report to Dr Kelly, her general practitioner.

33. Eventually she underwent treatment at Dalcross.

34. She did not derive immediate physical benefit from the course but did gain in confidence in her ability to live with her pain and handle the discomfort. She learned techniques to expand her range of activities without risk of exacerbating her symptoms.

35. Dr Andrews commented to the defendant's solicitors that the program "certainly sounds very pleasant but I do not think is really necessary in this case". The defendant submits that it ought not be made to pay the cost of the treatment at Dalcross.

36. Again, I think that the wrong question was posed to Dr Andrews. It may well be that the program at Dalcross was not "necessary".

37. But the proper question, it seems to me, is whether the plaintiff, in the light of her symptoms and of the advice that she received from Dr Yeo, acted reasonably in undergoing the program and incurring the expense.

38. She did not make the decision lightly. She had to consider not only the expense but also her mother's welfare while she was away.

39. I am persuaded that she did act reasonably and is entitled to recover the cost.

40. She was discharged from the program on 5 November 1992. Dr Yeo was hopeful that she would continue to experience less susceptibility to the recurrent pain. Dr Yeo was cross-examined by telephone, but I saw no reason to doubt his opinion in any way and it supported the reasonable nature of the plaintiff's decisions, both to cease work when she did and to undergo the treatment at Dalcross.

41. Dr Andrews examined her again on 29 April 1993. She was still suffering occasional flare ups of her symptoms. There was little abnormality detected on examination. He thought her ongoing symptoms were largely psychosomatic and not related to the original trauma.

42. Dr Andrews gave evidence when the hearing resumed in August 1993. He was present in Court while Dr Yeo was giving his evidence. He then propounded an hypothesis to explain the plaintiff's condition which he described as a psychosomatic illness which fitted fairly well the "fibromyalgia syndrome". He had that morning conducted some research and had an extract from some learned publication about the syndrome with him. He gave a plausible explanation in which the symptoms of which the plaintiff had complained, and treatments that she had received over her lifetime, presented a fairly typical picture of conditions frequently associated with the syndrome.

43. Of course, this hypothesis may have been a suggestion which was almost as unexpected by counsel for the defendant as it was by counsel for the plaintiff.

44. It can hardly have been an obvious hypothesis, if it did not suggest itself to any other doctor and even came to Dr Andrews only on the night before he was to give evidence.

45. During his cross-examination, Dr Yeo came to mention the stress under which the plaintiff was suffering.

46. The passage from the transcript is as follows:-

"MR HARRIS: Had you been informed of these additional matters such as an
irritable bowel syndrome from time to time but over a long period of the
time, during which you saw her, an irritable bladder, some swelling from
time to time ...
MASTER: Swelling of what?
MR HARRIS: Feet, hands, some discomfort and pain in the area of the
trapezius muscle and what I might call the shoulder girdle area, fatigue,
tension. Would those matters have caused you to consider other
possibilities other than the finding that you have now concluded on, and

I

think always, to be fair, always felt was the position, that is of a
fibrosis or some scarring of the muscle tissue in the trapezius muscle,
would you have considered other possibilities had you been informed of
those additional matters? - - - Yes, and in fact there was one other
additional matter which has not yet been discussed, and that was the fact
that this lady was under considerable stress as an only child living with
and looking after an elderly mother and this was causing her concern
because - for obvious reasons, not only because of the demands that were
being placed on her to adequately care of (sic) that mother, but because

of

the potential limitations on her contribution to care because of the
problem with the susceptibility of pain in her neck and shoulder.
Well, when you add to the matters that I have just mentioned and the

matter
that you have just mentioned, the stress and tension relating to the family

position and perhaps also to her work position, would you consider that a
distinct possibility is that during all this time she has been suffering
from a fibrositis syndrome, or fibromyalgia, rather than an injury caused
by this accident at all? - - - If you mean by fibrositis an inflammatory
process within the muscle, I believe that I was entitled to exclude that
because of the blood test we did and, in particular, the ESR which is a
helpful measure of underlying inflammatory processes in joints or a

muscle

and, therefore, it appeared to me from my examination and the history
taking and by exclusion of these other possibilities that her pain was
triggered by fibrosis, rather than fibrositis following the trauma and
although that fibrosis was healed scarred tissue that the triggering
process had continued because of her increased susceptibility in these
muscles affected to pain, I have no doubt that the susceptibility to pain
is altered in every person with alteration of stress levels. So you

would

have to consider that this lady who had a stressful environment, I don't
think we are questioning that, would from day to day be more susceptible

to

pain from whatever source than on a day when the stress was less. It
simply appeared to me as a clinician that until the accident and the

events

that followed that accident that she was, in fact, able to cope with her
employment despite those stress levels and that after accident she was

not

able to do that for any length of time.
Well doctor, in fact, she did during all of the time that you treated

her?

- - - Yes. I should have, perhaps, said that it would have been more
correct to say that until the expected date of retirement, had the

accident

not occurred.
Of course. You expected her to continue in her work? - - - Yes, I did."

47. Although the word "fibromyalgia" was included in counsel's question, I think it is understandable that Dr Yeo thought he was asking about "fibrositis", and that is the hypothesis to which he responded. I think it is fair to comment that the hypothesis of fibromyalgia of which Dr Andrews was speaking was not really put to Dr Yeo in a way that enabled me, at any rate, to understand what he would say about it.

48. But even if the hypothesis of fibromyalgia were accepted, Dr Andrews agreed that it looked like a classic picture which was triggered by the motor car accident. Subsequent chronic stress kept the whole thing going. But, in my opinion, that chronic stress was for quite some time itself the result of her injuries and the consequences for her in her particular job.

49. Also, if it be the true explanation for her condition, she would need, according to Dr Andrews, treatment by a psychiatrist, a rehabilitationist, a general practitioner and a course of tricyclic antidepressants.

50. In summary, Dr Andrews regarded her pre-existing condition as being a collection of predisposing factors for the psychosomatic disorder. He continued,

"So you've got predisposing factors and you've got triggering factors.
The accident was, if you like, a triggering factor."

51. I asked, "And there might have been at some later time some other trigger which could have started it?" To which he replied, "Exactly."

52. And to the question, "But in her situation, this was the one that did?" he also answered, "Exactly".

53. It follows, in my view, that however her present condition is described, it resulted from the accident, in the legal sense.

54. In summary therefore, the plaintiff suffered moderately severe soft tissue injury to the neck and spinal areas. A pre-existing degenerative condition was exacerbated by the injury. The resulting pain and discomfort resulted in her making a reasonable decision to retire from her unique job some six years earlier than she had intended.

55. For her pain and suffering and loss of amenity I award $35,000.00, of which no more than $10,000.00 would relate to the future. I have taken the future cost of medication into account in assessing that item, as I was invited to do by counsel. The pain was greater in the earlier part of the time since the accident. I award $3,000.00 for interest on the past component of general damages.

56. The out-of-pocket expenses, including the cost of treatment at Dalcross, total $9,311.25.

57. Counsel for the defendant did not oppose the basis on which the claim for past loss of income was put. That takes no account of rises in the rate of pay since 1991 and amounted to $63,650.00 to the date of the hearing, 27 August 1993. Bringing that sum up-to-date at $670.00 a week net gives $78,294.00. Whether interest should be paid on that item was not discussed by either counsel. I assume that she has been receiving superannuation, which would need to be offset in some way. In the absence of any material enabling me to make a proper assessment I do not award interest on the past loss of income.

58. Normally the figure itself would need to be discounted on account of her age and pre-existing condition. There has not been any need for her to take any special steps in caring for her mother, so that when dealing with the past that is not a discounting factor. I think that any need for a discount is balanced by the fact that rate increases have not been included. I allow the claim for past wage loss at $78,294.00.

59. For the future, I note that the present value of $670.00 a week for three years at 3% is $100,500.00, and for two years it is $67,670.00. The future should be discounted to some extent more than the past. I allow $60,000.00 for future loss of income.

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

General Damages $35,000.00
Interest 3,000.00
Out-of-pocket expenses 9,311.00
Past financial loss 78,294.00
Future financial loss 60,000.00
Total $185,605.00

61. I direct the entry of judgment for the plaintiff for $185,605.00.