Lorna Baron v Narelle Patrick [1994] ACTSC 7 (31 January 1994)

SUPREME COURT OF THE ACT

LORNA BARON v. NARELLE PATRICK
No. SC276 of 1992
Number of pages - 12
Damages - Negligence

COURT

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

CATCHWORDS

Damages - Assessment - Personal injuries - Motor car accident - Musculo skeletal injury to cervical spine - No issue of principle.

Negligence - Contributory negligence - Give way sign - Plaintiff halted at sign - Defendant approaching from right - Defendant indicating intention to turn left - Changing intention - Plaintiff assuming left turn would take place - Collision - No issue of principle.

HEARING

CANBERRA, 7-9 September 1993
31:1:1994

Counsel for the Plaintiff: G. A. Stretton

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: B. Hull

Instructing Solicitors: Wood Fussell

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $144,202.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 21 April 1991.

2. The plaintiff was born in Blayney, New South Wales, on 7 June 1962. She left school at the age of 15 before completing Year 10. In the following year she completed a secretarial course at the Reid TAFE.

3. After working for a year as a waitress, she began to care for her father and younger brother. She gave birth to a daughter in July 1981 and in 1982 began to work as a cleaner employed by Baron Contract Cleaning.

4. In February 1983 she married Mr Baron and had two more daughters, in 1983 and 1987. She then worked for about three years as a day-care mother, until in April 1990 she began employment as a casual diet maid at Calvary Hospital. In March 1991 she obtained permanent employment in that position.

5. She and her husband intended that she would continue to work in that position for at least five to ten years, and then make further plans.

6. Her general health was good, but not perfect. In February 1990 she consulted her general practitioner, Dr Barraclough, about an ache in the front of her left shoulder. X-rays revealed a congenital condition of a cervical rib. She claimed that she was not given any treatment for it. When she had an occasional ache she took Codral. Her work was not affected.

7. Work as a diet maid was relatively strenuous, involving lifting of trays, stacking of crockery and pulling and pushing of trolleys.

8. The plaintiff's version of the accident was that on 21 April 1991, at the end of her shift, she drove her Gemini sedan from the staff car park at Calvary Hospital. She was wearing a seat belt. At the intersection of the road into the Hospital with Hayden Drive she stopped at a give-way sign. She intended to turn right into Hayden Drive. There was no traffic approaching from her left. From her right there were two vehicles approaching, a Holden Commodore in the lane nearer the kerb, and another vehicle in the lane nearer the median strip.

9. Some distance from the intersection the left turn signal was activated on the Commodore and it began to slow down. It then began to turn left into the intersection, and as it did so, the vehicle in the other lane passed by. She says that the Commodore's front wheels passed over the line of the give-way sign and she then began to drive off. As she did so, the Commodore changed direction and collided with the front of the right hand side of the plaintiff's car.

10. The defendant's version is that she was driving her car to Calvary Hospital for an appointment about the imminent birth of her child. Her mother-in-law was a passenger, who has since died. On previous occasions, the defendant had approached the Hospital from the direction of Belconnen Way. On this occasion she was approaching it from the direction of Yass, and she knew that to enter the Hospital she would need to make a left hand turn.

11. There are two entrances to the Hospital from Hayden Drive. One, the nearer to Belconnen Way, is for general traffic, and the other, further from Belconnen Way, is the entrance to the accident and emergency section, and the staff entrance. It was from that second access road that the plaintiff was waiting to make her turn on to Hayden Drive.

12. As the defendant approached that intersection there were signs indicating that she was approaching the Hospital and she turned on her left hand indicator. As she approached the access road, she observed the plaintiff's vehicle stopped at the dotted line. She reduced her speed, and as she got closer to the intersection she estimated that she was driving at 30 kilometres per hour. The photographs which are Exhibit "A" show, particularly in "A3", that there is a sign which is partly obscured until one is quite close to the actual intersection. That sign indicates that the entrance is for accident and emergency. When she saw that sign, the defendant decided that it was not the correct entry for her, and decided not to turn left, but to continue straight on. As she did so, the plaintiff's vehicle moved out from her left in front of her and the front of her vehicle collided with the right hand side of the plaintiff's vehicle. In her evidence in chief she said that when she made the decision to go straight ahead she had not moved to her left at all, and her vehicle had not crossed the dotted line which marks the prolongation of the kerb of Hayden Drive across the intersection.

13. In cross examination the defendant continued to insist that although she indicated her intention to turn left and slowed down, her vehicle did not move to the left.

14. In her evidence, the plaintiff insisted that the defendant's vehicle did veer to the left to the extent that the front wheels of the defendant's vehicle crossed over the line which marks the prolongation of the kerb. It was the combination of the left hand indicator, the slowing down and the turning into the intersection that led her to believe that it was safe to drive out.

15. I think that counsel for the defendant was correct in conceding that the defendant, by changing her mind so close to the plaintiff's car after she had both indicated an intention to turn left and slowed down, did fail to take reasonable care for the safety of the plaintiff. It is quite foreseeable that a stationary driver seeing those indications might well conclude that it was safe to drive off, leading to precisely the sort of accident that happened. There will therefore be judgment for the plaintiff in the action.

16. On the issue of contributory negligence, it is true that the plaintiff did not keep the defendant's vehicle under observation until it had completed the turn. She turned her attention to the other vehicle passing across the front of her. If she had continued to watch the defendant, or looked back again before moving off, she would have seen that she was continuing on and could have avoided the accident. On the question of whether the defendant's vehicle veered to the left, I am inclined to prefer the evidence of the defendant. Had there been that extra indication of the defendant's intention to carry out the manoeuvre of turning left, there would be less criticism that could be made of the plaintiff's taking her eye off that vehicle and moving out. But even without that extra indicator it is still understandable that she formed the judgment that she would not be in danger if she drove into the intersection.

17. However, she was halted at a give-way sign, and it is a common experience that drivers who indicate an intention to turn left sometimes change their mind. I think that the plaintiff was to some extent at fault in not keeping her eye on the defendant's vehicle until it was more obvious that it really did intend to turn left.

18. In the circumstances I would apportion the fault for the collision, and the resulting damage to the plaintiff, 75 percent to the defendant and 25 percent to the plaintiff, and the plaintiff's damages will be reduced accordingly.

19. The front of the defendant's vehicle struck the front right hand wheel of the plaintiff's car, and pushed it sideways.

20. The plaintiff was wearing a seat belt, and was shaken about, but did not strike any part of her body on the inside of the car. She felt numb at first, but then got out of her car.

21. When she saw that the defendant was pregnant, after a short conversation she flagged down a nurse who was passing and asked her to assist the defendant to the Obstetrics Department.

22. She moved her car and then went to the Accident and Emergency Department. She complained of central back soreness.

23. On examination she had obvious spinal tenderness, and some muscular spasm was noted. Soft tissue injury was diagnosed.

24. She was given a certificate to be off work for some days and went home. A bruise developed on her left hip, and her head, neck and shoulder began to ache. Panadol did not relieve the headache.

25. She returned to the Accident and Emergency Section on 24 April when a severely limited range of neck movement was noted. She was given a cervical collar and analgesics, anti inflammatories and muscle relaxants, and a work certificate to 29 April.

26. At review on that day she still complained of severe occipital headaches with neck stiffness, and paraesthesia from the left middle and ring fingers radiating up to the left elbow. X-rays showed no bony damage in the skull or cervical spine. She was referred to Dr Newcombe, neurosurgeon.

27. Dr Newcombe first saw her on 3 May 1991. He noted that she had complained of back pain about a year before. He described it as mid thoracic, at about the T8 and T9 levels, and noted that she had been found to have a left cervical rib which caused occasional pain in the left forearm and colour change in the hand. There had been no complaint of neck pain.

28. After the accident she had neck pain with occipital headache and left shoulder pain. Her left arm aches also increased.

29. He found restriction of lateral flexion of the neck to about 30 degrees to each side. Forward flexion was possible to 20 degrees and extension to 10 degrees. Rotation was also limited. There was tenderness above the clavicle, and clinical evidence of thoracic outlet entrapment of the brachial plexus. He observed the x-rays, and ordered a CT scan, which showed no intervertebral disc herniation or other abnormality.

30. He diagnosed a musculo ligamentous strain of the cervical spine and aggravation of the left thoracic outlet entrapment associated with the cervical rib.

31. On 14 May 1991 she saw Dr Barraclough, a general practitioner. He noted the severe restriction of neck movement, and was concerned about damage to the disc at C7/C8. He referred her back to Dr Newcombe.

32. She went back to work on 12 June 1991. She had difficulty pushing and pulling trolleys, and lifting trays with water jugs on them. Friends helped her.

33. On 8 August 1991 she consulted Dr Barraclough about pain in her arm. He referred her to Dr Newcombe, who advised an operation.

34. On 11 September 1991 he operated to remove the cervical rib. She spent 4 days in hospital. On 25 October 1991 she was improving, but not yet recovered sufficiently to return to work, in his opinion. Her husband was caring for her at home, but because he was a shift worker they had to employ help to look after the 3 children on 3 days each fortnight.

35. After she recovered from the actual operation she noticed that her hand no longer went blue, but her forearm, neck and shoulders still ached, and she continued to get severe headaches.

36. She was interviewed by Miss Pratt, a rehabilitation consultant, whom she told that she found all activities that required lifting, carrying, pushing and pulling, and working at or above shoulder height painful and dangerous, due to involuntary grip release. Examples that she gave included carrying a laundry basket, pegging out heavy items, making beds, lifting her child and driving. Miss Pratt investigated her job, and discussed with her employer some way of getting her back to work.

37. Her report on the options available was as follows:

"Return to work options available:
* Due to the nature of the job it is not possible to provide reduced
hours or partial duties in the pre-injury position (the worker would need

\

to be fully fit for pre-injury duties and hours to return).
* There exists a remote possibility that an evening shift of
4.00 pm - 7.00pm
could be available. This shift would have similar physical
demands, but would have the advantage of reduced hours.
* The possibility of a "work conditioning" program being devised to
assist Lorna reintegrate into the work place and build up work tolerance
is a viable option.
In this situation, Lorna would not be on the Spotless pay-roll, instead

she

would be on a rehabilitation program. There are a variety of tasks,
including food preparation (eg making sandwiches, placing empty trays

onto
the conveyor for filling, delivering water jugs to patients) that could be

structured to meet Lorna's physical rehabilitation and psychological work
re-entry needs.
PLAN:
Lorna to be reviewed by Dr Newcombe on 6 December 1991. Occupational
Rehabilitation Plan to be devised following this review and based on Dr
Newcombe's recommendations.
cc: Dr R Newcombe, Mr Glen Lester (Spotless), Mr Phil Wells (Spotless),
MMI, Dr Barraclough, Lorna Baron."

38. Dr Newcombe reviewed her on 6 December 1991. She told him that lifting and carrying and putting her arm up all caused pain. He ordered further x-rays, and gave her certificates for work until 31 March 1993. In January 1992 he suggested that she could begin a work conditioning program in March. On 27 March 1992 Dr Barraclough noted her complaints of pain and restriction of neck movement. She was also pregnant, with the expected time of delivery being in early October. He gave her another medical certificate for a month.

39. On that same date Miss Pratt wrote to him setting out the terms of a work conditioning program, designed to begin working up her tolerance to activity. Her proposal was as follows:

"Following on Dr Newcombe's suggestion (15.1.92) that a work conditioning
program be developed, negotiations with Spotless Catering have resulted

in

such a position being available at the DSS Offices in Tuggeranong (10
minutes from Lorna's home).
If, following your medical review today, you feel that Lorna is ready to
commence some form of gentle work conditioning to begin building up
tolerances, the following duties will be available and can be structured

in

any way you see fit.
. Sandwich preparation
- spread margarine
- slice meat on low resistant slicer
- feed vegetables into food processor
. Salad preparation
- peel vegetables
- slice manually or in food processor
- construct
. Dishwashing
- stack and unstack soiled/clean crockery and
cutlery from bench level trolley onto bench level
dishwasher tray
. Clear restaurant tables
- using small table height easy run trolley
Please note that:
. Lorna can perform any part of any job (ie she doesn't have to do
entire task if aspects are inappropriate at this point).
. Lorna will be an extra-numery staff (sic) member for a 2 month
period, therefore there will be no pressure on the pace of her work.
I envisage commencing the program on 2 hours daily on a Monday, Wednesday
and Friday, and gradually building up to 5 1/2 days per week. This

should

be reviewed by yourself on a fortnightly basis for upgrading of hours and
duties.
Could you please indicate if this program is suitable and what

restriction

you would like Lorna to adhere to (eg - weights, heights, movements)."

40. The plaintiff said in evidence that she considered the proposal impossible. In cross examination she said she was not told about the proposal in any detail.

41. Dr Barraclough gave evidence and was cross examined, but he was not asked any questions about the proposal.

42. On 25 February 1992 an investigator had recorded a videotape of her taking washing off the line in her backyard. It was not possible to see anything of her neck movements. She was using her arms above her head. The task was a relatively light one, and lasted for 7 to 8 minutes. She was then recorded sitting on a step smoking a cigarette for little over a minute.

43. Dr Barraclough saw the video and detected nothing in it that was inconsistent with her complaints. Neither did I.

44. In April 1992 Dr Newcombe reported:
"I last saw her on 14.4.92. There was continuing neck pain with stiffness,
worse in the mornings, and interscapular pain. There was some pain in the

pectoral area. She had restriction of neck movement especially lateral
flexion, which was reduced to 30 degrees to each side. All neck

movements

seemed restricted by pain. There was tenderness in the left
supra-clavicular fossa.
There has been some benefit from physiotherapy. A graduated return to

work
has been envisaged by her rehabilitation counsellor. This would seem most

encouraging but whether she will succeed or not remains to be seen. At
home she has to cope with three children, aged 11, 8 and 4 years.
Her general condition seems stable and further neurosurgical

investigation

is not planned."

45. She was cross examined about her examination on 8 April 1992 by a Dr Mastroianni for the workers compensation insurer, but there was no report tendered by the defendant from Dr Mastroianni.

46. Dr Barraclough certified that she was still unfit for work on 22 June 1992. On 23 October 1992 he reported:

"At her last review on 19 August she complained of constant aching in her
neck and shoulders and she also said that she was getting lower back pain
and hip pain.
On examination the range of neck movement was restricted by about 20% and
there were no neurological signs.
In my opinion she is suffering from the combined effects of chronic
musculo-skeletal damage to the cervical spine from the car accident and
some persistent nerve root irritation from her left brachial plexus due

to

a cervical rib and I believe that this was exacerbated by the accident.
She has been treated with anti-inflammatories and physiotherapy and as

you

can see has not progressed remarkable (sic) well and she is still
complaining of pain and is currently unable to work."

47. Further segments were recorded of her movements. On 23 July 1992, she was recorded again removing washing from the line, over a period of about 10 minutes. On 7 August 1992 she was accompanied by her children on a shopping trip, over periods totalling about 15 minutes. Again, although there is no indication of any pain or restriction of movement, neither is there any evidence of anything inconsistent with her complaints.

48. Lastly, on 23 August 1993 she was recorded at the home of her next door neighbour. Her children had, as she expressed it, "trashed the front yard". She was helping clean up afterwards. She was clearly capable of bending and using a dustpan in a way that she had asserted in cross examination she was incapable of doing. In general she was evasive and unco-operative in answering questions in cross examination. But again there was nothing that I observed in any of the videos that leads me to conclude that she was not truly describing her symptoms to her treating doctors.

49. Her daughter Sarah was born on 11 September 1992.

50. On 25 September 1992 Dr Keiller, surgeon, examined her on behalf of the defendant. He found her movements of both shoulders somewhat restricted above shoulder level, with some discomfort, and neck tenderness from C5 to C7 and in the paravertebral and parascapular muscles. There was slight involuntary muscle spasm.

51. She told Dr Keiller that she was to attend a rehabilitation specialist with a view to getting back to work. He thought that her doing so would be at the expense of some continuing discomfort, but that she should be encouraged to return to work as soon as possible to become more active. He was concerned that her neck might not settle down to a satisfactory level, and that in time she might need further investigation or more active treatment, but did not advise anything further at that time. His prognosis was guarded.

52. Dr Barraclough referred her to Dr McGrath, a rehabilitation specialist. After his examination he invited her to attend a general spinal education program, and a program of remedial exercises for strengthening and balancing the upper limbs. In his report he commented that her attendance was poor and no reasons were given.

53. His examination had tended to implicate a segmental disturbance in the middle of the neck, at about C4/5, which would be consistent with her pain referral pattern. He did not conduct the further investigations that would have been needed to establish the exact source of her pain and symptoms.

54. He thought that the level of her pain disability was moderate to low, and that considerable progress could be made with the passage of time and active remedial exercises.

55. Her explanation in cross examination for her failures to attend regularly on the program was that she had sick children and that she rang the secretary to explain.

56. Dr McGrath in evidence said that she attended two out of the four education sessions and missed one of her appointments. It was possible that she had given reasons.

57. He agreed that she needed rehabilitation to enable her to return to the work force, but that some pain disability would be likely to remain for a considerable time.

58. He also thought that the activities that she demonstrated on the videotapes were consistent with her complaints, but that she might well experience some pain during or after them.

59. Dr Keiller re-examined her for the defendant on 23 April 1993. She demonstrated to him marked restriction of neck movement, in all directions, but no gross involuntary muscle spasm. The degree of tenderness seemed to be out of all proportion to the amount of pressure applied. Movements of both shoulders were full, but resisted. When asked to grip with the left hand she did not create any pressure in the instrument used.

60. While he did not doubt that she had some residual neck symptoms and some limitation of movement, she appeared to him to be exaggerating her symptoms. From his description I think on this second occasion she probably was. But even allowing for the exaggeration that he suspected he thought that she was then unfit for heavy work, that rehabilitation would be needed to get her back to being fit, and that the prognosis was still guarded. There was a possibility that she had become locked into a chronic pain syndrome.

61. Dr Newcombe re-examined her on 29 May 1993. He gained the impression that she was then undergoing rehabilitation, which was not correct, but thought that physically she would be capable of getting back to the work force with suitable rehabilitation treatment.

62. Lastly, on 26 July 1993, she was examined for the defendant by Dr Lowy, a consultant in rehabilitation. He found her unimpressive. He described her as:
"...vague, verbose, and simplistic in her descriptions and understanding of

her entire situation; furthermore, I found her angry and she exaggerated
her clinical status quite considerably, both verbally and physically."

63. I am inclined to believe that she did exaggerate to Dr Lowy, just as she had to Dr Keiller. Dr Lowy, however, was not as charitable in his conclusions as Dr Keiller had been.

64. He reported that whilst he accepted that she was experiencing chronic musculo skeletal pain emanating from her left neck region, he considered that there was gross exaggeration. He thought that the physical effects of any injury she suffered in the accident had long gone.

65. His report concluded:

"Some physical basis to her chronic pain may exist, but I consider her
current situation is largely, if not entirely, behavioural; this can be
described as "Learned Pain Behaviour", (reference: British Medical
Journal, London, 4/1/86, Vol 292, No 6512, P1).
One could also describe Mrs Baron as experiencing a chronic pain syndrome
which will be long-term, if not permanent. This syndrome can also be
described as a "Regional Pain Syndrome", (reference: A Statement by The
Royal Australasian College of Physicians, Fellowship Affairs, Dec 1988,
P6), from which return to a pain-free situation is uncertain.
Resolution of this type of chronic musculoskeletal pain is only possible
with very positive motivation and psychotherapy, together with normal use
of the effected body part; (attending a formal Pain Management Programme
may be of benefit). Physical treatments are reinforcing and ensure
chronicity, resulting in a poor prognosis which is the case here thus

far.

OCCUPATIONAL REHABILITATION and WORK CAPACITY
Mrs Baron would have been totally unfit for any work for say, three

months,

after Dr Newcombe's surgery in September 1991.
I note MMI Occupational Rehabilitation Assessment document of 20/2/92.
However, thereafter I can see no reason why Mrs Baron has been certified
unfit to undertake a graded occupational rehabilitation programme at the
Calvary Hospital during 1992 and 1993; certainly I consider she is fit

to

undertake the precise duties she undertook at the early stages of this
scenario ie between May 1991 and September 1991. I do not accept that

her

musculoskeletal condition is worse in July 1993 than it was in the period
May 1991 to September 1991."

66. In his evidence in chief he stated that he was certain that she was not suffering from chronic pain syndrome. He finished by saying:

"On consideration of all the information available to me and having spent
well over one hour with her, and between two and three hours on

reflection

and writing this document, I'm certain there is no physical basis to this
lady's complaints 27 months after the MVA of April 1991. She has lapsed,
at best, into a sick role for its own benefits or, more likely, it's a
conscious contrivance, full stop."

67. Again, I would comment that it is quite likely that the plaintiff was exaggerating to Dr Lowy, perhaps even deliberately. But she gave a different picture to the doctors who were treating her, particularly the one who knew her best, Dr Barraclough, and that is the clinical picture that I accept.

68. Although the actual collision was only moderately severe, she was shaken up, causing musculo skeletal damage to the cervical spine, and exacerbating nerve root irritation from the left brachial plexus due to the cervical rib. The accident made it necessary to operate to remove the cervical rib, but the operation, although it relieved the symptoms, did not cure the condition. It would have left its own scar tissue internally as well as externally.

69. Over two and a half years her condition has settled. She has been incapable over all that time of doing the relatively heavy work that her job entailed. She is still incapable of doing it.

70. It is possible that with appropriate rehabilitation, she could be made fit for work, though she would never be completely free from pain. It is not certain that she will receive the appropriate rehabilitation, or that it will succeed.

71. For her pain and suffering and loss of amenity I award $45,000, of which $10,000 would relate to the future.

72. The greater part of the past pain and suffering was towards the beginning of the period. I allow $2,500 for interest on the past component.

73. The out of pocket expenses are agreed at $9,223.83.

74. There was no issue raised about the calculation of past wage loss, which was $34,910 to the date of the consultant's report (Exhibit "G"). Bringing that up to date at $357.04 per week gives a total of $46,437.

75. There is a small amount of loss of superannuation benefit, which was $378.00 for the 12 months to June 1993. I have simply added half to bring that amount up to date, making $567.00 for that item.

76. The plaintiff has been receiving weekly payments of workers compensation, which, to the date of this judgment, are agreed at $31,244.

77. For interest on the difference between that sum and her past loss of income I award $3,400.

78. The Fox v Wood component is agreed at $5,141.

79. There is obviously a reduction in her future income earning capacity.

80. But the evidence does not sustain a calculation based on the hypothesis that she would have worked to age 65 but for the accident.

81. Her evidence was that she and her husband had worked out that she was going to stay at work between 5 and 10 years, depending on overtime and how finances went. They were working to a plan to pay off their home. Thereafter, they would look at the situation to decide what to do.

82. There is no evidence about how the plan was going, or whether it was likely that the house would be paid for in 5, 7 or 10 years, nor any real evidence that it was more likely than not that she would work thereafter. She had 4 young children, and was obviously devoted to them.

83. I think that fixing the outer limit of this part of the award starts with the present value of a loss of $357.00 a week for 10 years which at 3 percent is $161,364.

84. It would also be wrong to compensate her on the basis that she has been shown to be incapable of ever working again.

85. It would take some time for her to become fit again, if a rehabilitation program is successful. It is reasonable to assume that she will attempt rehabilitation, as it would be for her overall benefit, and there will be no reason to avoid doing so in the future, if there ever was in the past. But even if the rehabilitation is successful, there would be doubts about her ability to find employment with her present medical history.

86. I think that the figure for 10 years should be discounted, not only for the ordinary contingencies, but also for the possibility that she might have ceased working sooner in any even, and also for the possibility that she might obtain employment for some part of that period.

87. As a matter of discretionary judgment I would award $80,00 for impairment of her future income earning capacity.

88. The total award is therefore made up as follows:

Pain and suffering $45,000
Interest 2,500
Out of pocket expenses 9,224
Past loss of income 46,437
Interest 3,400
Fox v Wood 5,141
Future economic loss 80,000
Superannuation loss 567
_______
TOTAL $192,269

89. Reducing that figure for contributory negligence by 25 percent gives a result of $144,202.

90. I direct the entry of judgment for the plaintiff for $144,202.