Tracey Louise Stephens v Simon Ruan [1994] ACTSC 74 (22 July 1994)

SUPREME COURT OF THE ACT

TRACEY LOUISE STEPHENS v. SIMON RUAN
No. SC393 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 - Whiplash cervical injury - Pianist - Skilled but not full time professional - Loss of Amenity - No issue of principle.

HEARING

CANBERRA, 18 July 1994
22:7:1994

Counsel for the Plaintiff: Mr G Parker

Instructing Solicitors: Gary Robb and Associates

Counsel for the Defendant: Mr J Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

Judgment be entered for the Plaintiff in the sum of $39,117.63.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 14 March 1989. Liability is not in issue.

2. The plaintiff is a married woman, separated from her husband, and the mother of a young daughter, now almost four years of age. The plaintiff was born on 16 October 1970, and completed her secondary school studies at the end of 1988. She was already an accomplished pianist, having passed Grade 5 in the AMEB examinations in 1987, and intended to pursue further studies in piano, both for her own enjoyment and as a means of earning income. She claims that after her Year 12 examinations she earned some money in casual employment as a pianist, a claim which was not conceded by the defendant.

3. After finishing school she obtained a job as a sales assistant with Simons Carpets. She intended to take a year off from her studies, and to apply for admission to the Canberra School of Music at the end of 1989. Meanwhile, she hoped to augment her income by casual piano playing in the evenings.

4. On 14 March 1989 she was driving a car in Namatjira Drive at about 4.15 pm. At the intersection of that road with Hindmarsh Drive her car was struck on the right hand side by a vehicle travelling in the same direction and on her right. That vehicle had itself been struck on the right by a vehicle driven by the defendant, which then collided also with the plaintiff's vehicle.

5. She was thrown about heavily in the two impacts, and her car continued on about 50 metres along Hindmarsh Drive. She was wearing a seatbelt, but at the time of the collision was leaning forward to adjust the radio. She struck her head and was at least dazed. Her forehead was bleeding from a cut just below the hairline above her right eyebrow. She had a headache, and felt pain particularly in the sternum and in her neck.

6. She was taken by ambulance to the Accident and Emergency Section of Woden Valley Hospital. The report from the hospital states that, "There had been no loss of consciousness, but a transient visual loss." On the basis of that description she was cross examined about her subsequent claim, repeated in her evidence, that she lost consciousness for a short time. The description in the hospital report by the medical administrator, made on the basis of the records kept by the medical officer in the Accident & Emergency Department, may well be the more accurate clinical description of her complaints, but I think it would be a little harsh to criticise her lay description of "a transient loss of vision" as "losing consciousness for a short time". Given the type of wound she sustained and the later diagnosis of concussion, I think the distinction is purely semantic, and does not cause me to doubt the accuracy of her evidence in the least, either in general or on this particular element of her history.

7. On clinical examination that evening the abnormalities detected were scalp laceration and tenderness over the mid sternum.

8. The laceration extended down to the bone. It was explored under local anaesthetic, but there was no bony injury or foreign body. The wound was closed with sutures. X-ray of the sternum did not disclose any fracture.

9. She was given a medical certificate until 16 March, and allowed to go home, with pain killers and advice.

10. She returned the next morning because she noticed that her vision was blurred, and she began to suffer severe headache and vomiting. The doctor diagnosed probable concussion. She was given advice, reassurance and analgesics, and a work certificate for a further day.

11. She claimed in evidence that her neck pain had also increased, and she was experiencing pain between the shoulder blades. The hospital report does not detail those symptoms. I would expect that the doctor in casualty would have been more concerned about the concussion, and it does not by any means follow that because the hospital report does not detail those symptoms that she did not complain about them, or that she was not suffering from them.

12. She returned on 18 March, and the sutures were removed. She had had no further vomiting but was still having occasional blurred vision. There were no relevant clinical signs detected on examination, and it was thought that her symptoms were the residual sequelae of the concussion.

13. She also mentioned that she had diffuse pain in the soft tissues of the neck, involving all muscles, right more than left. On examination there was no bony tenderness and no neurological signs. There was a full range of neck movement, but with pain. A diagnosis was made of soft tissue whiplash type injury, and she was given analgesics, advice and a referral for physiotherapy. I think it is probable that on that occasion she was also given a soft collar.

14. Again, I do not think that the terms in which the hospital report was expressed casts any doubt on her claim that the neck muscle pain extended to between her shoulder blades.

15. She underwent physiotherapy by Susan Tuisk at Queanbeyan on a number of occasions. Her neck mobility improved somewhat, but not the pain. She continued to wear the soft collar, but gradually discontinued its use over a period of months.

16. In November 1989, she consulted Dr Oxenham, a general practitioner in Young, where her parents lived, primarily to confirm whether she was pregnant. He noted that she still had some tenderness of her lumbar region, radiating to the left, which had not been improved by physiotherapy or naturopathic treatment.

17. Counsel for the defendant laid great stress on the fact that Dr Oxenham did not mention in his report any complaint of neck pain or pain between the shoulder blades, and that there had been no previous recorded complaint of lower back pain.

18. Her pregnancy would barely have explained the lower back pain, as it was only then being confirmed, and her daughter was not born until 5 August 1990. The low back pain is not the major element of her complaints now. I do not doubt her evidence on account of any seeming discrepancy, nor because she had not consulted a regular medical practitioner since last visiting Woden Valley Hospital in March 1989. She had followed the advice she was then given, and there was little more that doctors could do for her. They, and probably she also, expected her symptoms to improve slowly over time.

19. X-rays of the lumbo sacral vertebra were normal, and he commenced her on Naprosyn.

20. Her regular general practitioner in Canberra after the birth of her daughter was Dr Siva, but there was no report from him in evidence. He has prescribed Migrol for her headaches and anti inflammatory medication. She also underwent some physiotherapy and acupuncture.

21. Her solicitors referred her to Dr Owen White, neurologist, who examined her first on 26 April 1991. To him she complained that immediately after the accident she suffered cervical pain, headache, low back pain and pain over both knees. I expect that Dr White, being experienced in medico legal issues, extracted a fuller history from her than doctors who had seen her earlier.

22. Her principal complaints to him at the time related to her headaches, intra scapular pain, low back pain and some left leg pain. There was a separate complaint of pain around the right wrist over the past 6 months or so.

23. Functional enquiry was substantially normal, but she reported some activities which increased pain. On examination there was a full range of cervical spine movement, with pain on full forward flexion. There was tenderness over the low thoracic spine and lumbar spine. There was a full range of movement, but pain on lateral flexion, more marked on the right. Other tests were normal.

24. Dr White diagnosed soft tissue injury. He recommended that she continue with physiotherapy and analgesics, and perhaps anti inflammatory medication. At that time, April 1991, he expected her to make a progressive recovery over 6 to 12 months, though she might need to modify her activities at home to help her recovery.

25. On 30 January 1992 the plaintiff consulted Dr Chan, a general practitioner, complaining of migraine type headaches since the accident. On examination he found tenderness of the cervical spine, with restriction of flexion and extension of the neck with tenderness around the para spinal muscles. He expressed his diagnosis as "Minimal Intervertebral Derangement of the cervical spine and secondary pre menstrual migraine." He attributed both to the accident. Acupuncture was affording some relief, as the plaintiff also explained in evidence.

26. Her work capacity was not affected, and he described her prognosis as good, but he expected her to have periodic recurrence of the symptoms.

27. Dr White reviewed her condition on 12 July 1992. The migraine type headaches persisted, about monthly. Other headaches were more frequent. There was persistent low back pain, and intermittent sciatic pain.

28. She was coping with home duties, although unable to vacuum. On examination there was a full range of cervical spine movement, without spasm.

29. Dr White noted that the cervical pain had persisted beyond the period that would normally be expected. He suspected underlying soft tissue damage. Although internal disc disruption was possible, he advised against further investigation. He believed that the condition was stable, and unlikely to improve or deteriorate dramatically. He did emphasise the significant risk of long term deterioration and accelerated degeneration.

30. Dr Andrews, Consultant Neurologist, examined her for the defendant on 29 November 1993. The continuing disabilities he listed as slight tenderness in the lower sternum, and intermittent neck pain, which could be associated with paraesthesia in the right hand. The migraine type headaches continued, but Migrol usually controlled them. There was still occasional low back pain, radiating into the left buttock and thigh.

31. On examination there was a good range of neck movement and no neurological deficit. He diagnosed soft tissue injury. He carried out electrical studies, which gave no evidence of carpal tunnel syndrome in the right wrist. He therefore could not relate the paraesthesia in the right hand to the accident.

32. Dr White finally reviewed the plaintiff on 15 April 1994. Her complaints had not changed substantially. She still complained of migraine and tension headaches and intermittent low back pain. On examination he found minor muscle spasm on the left side at the C5 level. To my mind this is consistent with her evidence, despite Dr White's failure to note the complaint of pain between the shoulder blades of which she gave evidence. There was a full range of movement, and no really significant neurological signs.

33. Dr White commented that in general terms the plaintiff appeared to have primarily soft tissue injury, possibly with some ligamentous or even disc damage. He thought her condition is substantially stable. He described her overall diagnosis as good, and when one considers the disabilities sometimes suffered by the victims of whiplash injury, of which he has vast experience, that description is justified. It means, I think, that she can get on with her life reasonably well, and there is no expectation of dramatic deterioration. It does not mean that she is going to improve substantially, or that she has no disabilities.

34. None of the doctors whose reports were in evidence were required to attend for cross examination.

35. I do accept the plaintiff as a witness who gave her evidence as truthfully, accurately and moderately as she was able, despite differences in emphasis and detail between her evidence of complaints and the complaints recorded by the doctors.

36. She has been referred to another neurologist, but has not yet obtained an appointment.

37. In summary she suffered a blow to the head, causing a laceration that required sutures. The remaining scar is visible on inspection, but not immediately apparent, and hidden by the fringe with which she now styles her hair.

38. She sustained soft tissue injury to the cervical neck and para spinal muscles, and to the lumbar spine.

39. I do not think that any symptoms in her hand relate to the accident.

40. The soft tissue injuries have not healed completely, and her condition is stable.

41. As a result of the accident, now more than five years ago, she suffers migraine type headaches which she can anticipate and ameliorate to some extent with medication.

42. She is restricted in the amount of time that she can spend in playing the piano without suffering pain. This has had, and will continue to have, the effect that she can not supplement her income by piano playing. On the one hand I agree that she would not have been earning a great deal from that activity while her child was very young. On the other hand it is an activity that is most significant to her, and the loss of it should play a significant part in her award of general damages.

43. Her lower back pain persists, but is not nearly as significant as the neck and para spinal pain.

44. Her condition can not be expected either to improve or deteriorate markedly. I think she will gradually increase her ability to play the piano, but she will never be able to enjoy it as much as if she had not been injured. Her capacity to play other sports has been restricted. She is only 23 years of age.

45. The plaintiff was paid in cash for the casual work that she obtained as a pianist before the accident. There is no documentary evidence to support her claim. However, the evidence does not contradict it either, and I accept her evidence on the issue. The amount involved, however, is of such a size, and of such difficulty to quantify, that I have taken into account the loss of the opportunity to earn money from that source, both since the accident and in the future, in the assessment of general damages.

46. I am not persuaded that the plaintiff has suffered any measurable loss of future income earning capacity in the general sense, as it is most unlikely that she would ever have engaged in heavy physical work in any event. She works at present as a sales support operator for Uni Foods Pty Limited, and is able to perform all her duties, though some of them involve some discomfort.

47. For her pain and suffering and loss of amenity I award $35,000.00, of which $10,000.00 relates to the future.

48. Interest on the past component on the conventional basis amounts to $2,680.00.

49. The out of pocket expenses are agreed at $1,063.50.

50. She was absent from work after the accident for only 2 or 3 weeks, and her loss of wages from that source is conceded at $374.13.

51. The total award is therefore made up as follows:
General Damages $35,000.00

Interest $2,680.00
Expenses $1,063.50
Loss of Wages $374.13
_________
Total $39,117.63

52. I direct the entry of judgment for the plaintiff for $39,117.63.