Garry Douglas Thompson v Desley Anne Watts [1995] ACTSC 10 (27 February 1995)

SUPREME COURT OF THE ACT

GARRY DOUGLAS THOMPSON v. DESLEY ANNE WATTS
No. SC195 OF 1992
Number of pages - 11
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Car Accident - Neck and back pain - Work performance affected - Redundancy accepted - Loss of income earning capacity - No issue of principle.

HEARING

CANBERRA, 13-14 September and 11 November 1994
27:2:1995

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Crossin Barker Gosling

Counsel for the Defendant: Mr M Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

The Court orders that:

1. Judgment be entered for the plaintiff for $164,504.00

DECISION

MASTER A HOGAN This is an assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 3 December 1986.

2. The plaintiff was born on 6 December 1943. He went to school in Victoria, where he obtained the Leaving Certificate, but without matriculation for university. He joined the Commonwealth Public Service in the Bankruptcy Office in Melbourne, soon after leaving school in 1961.

3. His intention was to make a career in the Public Service, and by 1970 he had been promoted to a Clerk Class 6 position in the Department of Defence.

4. He began study for a degree in Administration, and received credits in the subjects that he attempted, but did not persevere with the course beyond the first year.

5. He married in 1975, and his eldest son was born in 1978. His wife's family were graziers, and he obtained a wool classing certificate by part time study at TAFE in 1980.

6. Since 1973 the plaintiff had suffered migraine headaches, which he attributed to football injury. In 1981 he underwent an angiogram, to which he suffered a severe reaction and spent two weeks in hospital. He returned to work soon afterwards, and now thinks that it took some time for him to return to normal, but later in that year was able to undertake higher duties, acting in a Class 9 position. He spent a number of periods in more senior positions over the next few years. Three more children were born in 1981, 1983 and 1986.

7. On 3 December 1986 he was driving to work in William Slim Drive in McKellar. A vehicle ahead of him stopped to make a right hand turn. He stopped his car behind it.

8. The defendant's car then collided with the back of his car. He had no warning of the impending collision. His head was thrown forward. His hands came off the steering wheel. His foot came off the clutch. His head hit the steering wheel, although he was wearing a seat belt. His car was pushed forward some distance. The back of his seat collapsed. He did not lose consciousness.

9. He was at first unable to open the door. He was terrified that the car would catch fire. He kicked the door open and escaped.

10. At first he felt numb and shocked. A friend of his wife, who happened to be passing, drove him home. He stayed there for a few hours, and then went to work.

11. That night the muscles in his neck stiffened, and he did not sleep well.

12. The next morning he consulted Dr Beckett, his then general practitioner, who recorded complaints of pain in the neck, low back and down the right arm. There was a full range of movement, but all neck and para spinal muscles were tender. Dr Beckett ordered X-rays, and gave him a certificate for one week off work.

13. On 12 December 1986 Dr Beckett saw the X-rays, which he noted showed an old C5/6 neck injury from a motor vehicle accident in 1969. He recorded the current problem as being a flare up of the old injury due to the recent accident. He prescribed Voltaren and referred the plaintiff to Mr Maher for physiotherapy.

14. In his evidence in chief the plaintiff gave the following answers;

"Do you recall before December 1986 having any problem with your
neck or your back?---Only the usual football type of injuries.
If I had any injuries to my back, it was probably a result of over
exertion as a weekend gardener.
Do you recall yourself as having any ongoing problem with your neck
or your back before December '86?---I couldn't say so, no, not to
the extent that it provided the same sort of chronic pain as after
the accident."

15. Dr Beckett's notes did not go back beyond 1982. On 7 January 1983 there was recorded a complaint of neck stiffness with numbness down the left arm, not in any anatomical distribution. He had already been referred to Mr Maher the previous month for symptoms relating to the neck and left shoulder.

16. In cross-examination he stated that he did not recall what had led to his receiving that treatment in 1983. He was under treatment for stomach ulcers in early 1983, which flared up in May due to pressure at work. He was not asked about any car accident in 1969, nor was Dr Beckett available to give evidence.

17. When the plaintiff was referred to him after the subject accident, Mr Maher treated him with soft tissue mobilisation, traction, muscle stretching and heat treatments, and prescribed a series of exercises. In his report dated 15 March 1994 he commented;

"Mr Thompson did have a pre-existing C5/6 disc degeneration and
spondylitis of L2/3, however I would assess that the present
condition is almost entirely as a result of the accident in 1986."

18. He returned to work about two weeks after the accident, and over the first part of 1987 was absent on sick leave for numerous short periods, usually, though not always, for treatment for, or because of, neck and back pain. His sleep was disturbed, and he noticed a tingling sensation in his left hand and wrist. In July 1987 Dr Beckett referred him to Dr Newcombe, who saw him first on 10 September 1987. He ordered a CT scan of the cervical spine, which was done on 15 September 1987, and demonstrated narrowing of the nerve root canals at C5/6 and C6/7. Other studies suggested a left carpal tunnel syndrome, for which Dr Newcombe advised surgery.

19. Dr Newcombe performed a left median nerve decompression at John James Hospital on 2 December 1987. Thereafter the hand problems improved, but the other pains persisted.

20. He continued to complain of low back pain, and was referred back to Dr Newcombe. A CT scan of the lumbar spine, done on 5 April 1988, revealed L4/5 broad based disc bulging and some degenerative change in the facet joints at L5/S1. On 30 May 1988 Dr Newcombe reported that he had been told of a 1969 motor vehicle accident resulting in no significant injury. His summary of the plaintiff's condition at 12 April 1988 was that the injury of 3 December 1986 had resulted in aggravation of cervical and lumbar spondylosis with possible disc herniation also at the L4/5 level. It had further precipitated left carpal tunnel syndrome, which had been treated surgically.

21. On 20 June 1988 Dr Dimarco certified that the plaintiff had developed peptic ulceration, as a result of the medication that he was taking for his back and neck pain. He took about ten weeks sick leave as a result of that condition. Dr Dimarco also prescribed a TENS machine for pain relief, since he was unable to continue with the oral medication. An endoscopy on 27 August 1988 showed oesophagitis, ulceration, gastritis and duodenitis.

22. On 5 July 1988 he underwent a lumbar radiculogram, at the request of Dr Newcombe. He suffered the usual intense discomfort of that procedure.

23. Meanwhile, his condition was causing concern at work. On 4 July 1988 he was referred to the Commonwealth Medical Officer for assessment of his fitness for continued duty. His supervisor reported that his work performance was less than satisfactory, but his report shows no evidence of any insight into the plaintiff's medical condition. The CMO examined the plaintiff on 13 July 1988. He was complaining of epigastric pain, neck pain and headaches, and lower back pain. His assessment was that the plaintiff was unfit, and should be granted further sick leave until 31 July 1988. He stated that the plaintiff should then be fit to resume normal duties, but would need to stand up frequently and change position and walk around because of his neck and back problems.

24. He returned to work in August 1988. He felt very anxious and stressed, and reported to his doctor that he had argued with his boss about the adequacy of his performance at work. He was prescribed Tryptanol and referred to Dr Lithgow's pain clinic.

25. There he was referred to Patricia Williams, clinical psychologist, who saw him first on 13 October 1988. She saw him for about nine sessions, with fairly lengthy intervals between, until August 1989. He responded to pain management treatment, but was stressed because of his work situation.

26. Early in 1989 he was called to a meeting with his Director, Ms Wharton, and Mr Hayes, an assistant commissioner. He was told that a voluntary redundancy package was available, and that he had been one of the officers to be invited to consider applying for voluntary redundancy. It was made clear to him that if he stayed on in the service he would not be promoted further. He became angry, tense and anxious.

27. He felt worthless, and that his superiors did not care. The plaintiff's contemporaneous and voluminous notes, and the letter that he later wrote to the Commissioner, demonstrate that he was not attracted to the idea of early retirement. He resented and contested the judgment that had been made that his work performance was not satisfactory. He argued that he had been performing in higher duties, and that, if at times his performance had been unsatisfactory, it was the result of his injuries. He raised the possibility of invalidity retirement rather than voluntary redundancy. He was given no reason to think that he would succeed in obtaining invalidity retirement. He felt that he did not have the resources to contest the issue.

28. Mr McCullagh, a senior officer in the administration of Commonwealth Superannuation, gave evidence for the defendant. He had known the plaintiff since about 1981, though he was not his supervisor at any stage. At the time of the assessment by the Commonwealth Medical Officer of the plaintiff's disabilities he was the branch head, with responsibility for personnel matters.

29. After the plaintiff had been invited to consider the redundancy package Mr McCullagh was informed that the question of invalidity retirement had been raised in discussions with the plaintiff. He spoke to the plaintiff to ensure that he understood the processes involved. He was aware that the plaintiff had health problems, but they had not been represented to him as being severe. He had reason to believe that the plaintiff was not enjoying the job that he was doing. He also received the impression from the plaintiff that he had some other job to go to, and that he was looking forward to engaging in further studies. He did have an opportunity of other employment, which in the event became unavailable because of the lapse of time. Eventually, after consideration and taking advice from various people, including his solicitor, the plaintiff decided to accept the redundancy package. He said that he felt that he had no other option. He left the public service on 3 April 1989. It was not the way he would have preferred to end his chosen career.

30. His general practitioner referred him to Dr Saboisky, psychiatrist. There was no report tendered from Dr Saboisky, though he treated the plaintiff for six to twelve months. There was no explanation for the absence of his report.

31. On leaving the public service the plaintiff undertook the Barristers Admission Board course, in order to qualify as a lawyer. He has now completed half the course, having received credits in some subjects, but having already failed Equity three times. The doctor's clinical notes confirm that examinations cause him stress.

32. He also obtained a position as a part time, casual, Court orderly with the Family Court early in 1991. He transferred to the Federal Court in April 1993. The duties are light, and he obtains work only intermittently, and is able to do what is required.

33. He first saw Dr McCallum, the general practitioner who took over Dr Beckett's practice, in October 1992, complaining of severe headaches, which she attributed to his neck injury. In July 1993 they were persisting, he had facial pain and he was depressed. At that stage she attributed his symptoms to a number of factors, including his neck condition, a sinus infection, stress caused by his studies and his wife's illness, and insomnia.

34. She reviewed him regularly, and although his facial pain improved with treatment of his sinuses he remained depressed, and continued to suffer sleep disturbance, panic attacks and migraine headaches.

35. She referred him to Mr Smith, a psychologist, for his ongoing panic attacks. He noted symptoms of claustrophobia, panic attacks and low tolerance of noise, which he diagnosed as post traumatic stress disorder, attributable to the accident. After treatment extending into 1994 his symptoms improved, but persisted. Mr Smith assessed him as being capable of part time work only, and as needing further counselling for at least six months.

36. On 23 March 1994 Dr Newcombe re-examined him. He found severe restriction in the range of neck movement. Straight leg raising induced low back pain. There was some glove like sensory disturbance in both hands. There were no other clinical signs.

37. The plaintiff's solicitors sent him to Dr Gavaghan, consultant physician, for examination. Dr Gavaghan reported on 8 April 1994. In his opinion the plaintiff's physical complaints were due to the exacerbation of pre-existing degenerative disc disease, caused by the accident. There was no evidence of significant nerve root compression. The post traumatic carpal tunnel syndrome had been successfully decompressed. He was likely to need ongoing conservative treatment.

38. Dr Gavaghan was sure that the plaintiff had developed very significant emotional problems over the years, which might or might not be related to the accident. He commented;

"He has developed an enormous number of complaints, many of these
which relate to the psychological effects of his accident and also
to depression. He has required treatment from Psychiatrists and has
been suicidal on several occasions. He is currently taking anti
depressant therapy. Many of his constitutional symptoms such as
lethargy, disability with respect to chronic pain, insomnia, sexual
difficulties, panic attacks etc are all psychological manifestations
which in some ways relate to his accident but I am sure expert
opinion will be more reliable from his treating Psychiatrist.
I have not really gone into this aspect of his history in great
detail as I am sure you have obtained appropriate reports from his
treating Psychiatrists."

39. Ironically, the defendant sought a medico legal opinion from Dr Tym, consultant psychiatrist, who examined the plaintiff on 15 June 1994. The defendant's advisers did not serve a copy of his report.

40. The plaintiff, however, returned to Dr Tym for treatment in July 1994. He has since consulted him on eight occasions, and continues to see him. Dr Tym has prescribed an anti depressant.

41. Leave was given to the defendant to subpoena Dr Tym's notes at short notice, and they were produced at Court during the second day of the hearing. They included reports to the plaintiff's solicitors, one from Dr Tym and two from Dr Saboisky, on which the plaintiff successfully claimed privilege.

42. Faced with the prospect of an adjournment, the defendant's advisers decided not to call Dr Tym to give evidence. The net effect of the forensic manoeuvring was that in a case where the psychiatric evidence was obviously important, both sides chose not to call it, or even to serve their reports on their opponent. I must do the best I can to decide the case on the basis of the evidence that is before me, but if my decision is not congruent with reality the parties will have received the rewards of their obfuscation and obnubilation.

43. Ultimately it is for the plaintiff to prove his case, and I am quite comfortable in drawing the conclusion that neither Dr Saboisky nor Dr Tym would have given evidence to support the proposition that all the plaintiff's psychological and psychiatric ailments resulted from the accident. Even if either psychiatrist had given that evidence, the preponderance of the other evidence, and the detail of the plaintiff's medical history, is to the contrary.

44. But equally, I am confident that neither would have given evidence that his injuries and continuing pain have nothing to do with his psychiatric condition. I find myself coming to much the same conclusion as did Dr Gavaghan.

45. One matter of which the plaintiff complains is sleep disturbance. Another is attacks of panic. The two are sometimes related. Dr Tym referred the plaintiff to Dr May, thoracic physician, for a sleep study, which showed quite definite obstructive sleep apnoea syndrome. Shortly before the accident, in September and October 1986 the plaintiff had been treated by Dr Dodd, of the Department of Thoracic Medicine at Royal Canberra Hospital. He had been operated on in March 1986 by Dr Hilton Stone to clear a nasal obstruction, and had developed asthmatic symptoms. Dr Dodd's reports clearly document pre-existing migraine headaches, gastric ulcer, sleep apnoea, and general lethargy, lassitude and apathy.

46. Dr Hilton Stone was advising further operative treatment for sinusitis in July 1991.

47. I am not persuaded that his sleep disturbance was related to the accident. But the panic attacks may well be partly attributable to its consequences.

48. Dr McCallum had referred him to Dr Tuck, consultant neurologist, in July 1993. He noted complaints of depression and pains in the head. There was a history of migraine headaches extending over twenty years. Dr Tuck suggested persevering with Prothiaden because tricyclic antidepressants are reasonably effective prophylaxis for migraine. In addition, he thought it might improve the plaintiff's sleep, reduce his panic attacks and overall anxiety, and improve tolerance of the pain in the ear and eye, as well as the neck and back pain.

49. The defendant referred the plaintiff to Dr Andrews, consultant neurologist, in September 1993. He had seen the plaintiff in the early eighties after he suffered the reaction to the carotid angiogram. Although Dr Newcombe reported in 1987 that the hand symptomatology was not related to the accident, Dr Andrews thought that the left carpal tunnel syndrome following the accident showed fairly classical symptoms. The plaintiff described in evidence that his hands were forced from the steering wheel in the impact. On balance I think that the hand symptoms, and the operation to relieve them, were the result of the accident.

50. On examination Dr Andrews found that the plaintiff had a good range of neck movement and his straight leg raising was full. His view was that the ongoing symptoms relating to the cervical and lumbar spine were fairly minor. He conducted electrical nerve conduction tests, which disclosed no abnormality.

51. None of the doctors were called to give oral evidence, or to be cross-examined. Evidence was given by the clinical psychologist, Patricia Williams, to whom the plaintiff had been referred in October 1988. She conducted a further interview and psychometric assessment on 23 May 1994. In summary, she found evidence of considerable emotional disruption, and thought that a formal psychiatric assessment would be warranted. The plaintiff's preoccupation with physical symptoms and emotional distress had remained unresolved since his earlier treatment. She assessed him as suffering chronic pain syndrome, and probably some post traumatic stress disorder. His emotional problems were, to a significant degree, a result of his pain condition. His fitness for work was limited by perceived levels of pain and his elevated anxiety and depression.

52. There was also put into evidence a videotape of the plaintiff, which showed him attending a football match. He bent over for a period of about two minutes, without any apparent discomfort, and stood and moved about over a period of about two hours. Although the plaintiff said in cross-examination that he would normally try to avoid bending in the way that was demonstrated, I do not think that there was any great significance in his videotaped activities.

53. In summary, therefore, the plaintiff was a man who, before the accident, had pathology in his spine at C5/6 and L2/3, which had been symptomatic on occasions, but which was not disabling. He had also suffered from time to time from migraine headaches, gastric ulcer and sleep apnoea, which caused occasional bouts of lethargy, lassitude and apathy.

54. Although he regarded himself as a career public servant, and had at times acted in higher duties, I am not persuaded that he would have experienced much further progression or promotion in the service.

55. Had the accident not happened it is possible that he might have been offered voluntary redundancy, but the defects in his work performance would not have been as marked as they were in fact, and I think it is unlikely that his desire to become a lawyer would have been sufficiently strong to induce him to leave the security of the public service and the accruing superannuation rights that went with it, at any rate until many more years had passed.

56. As a result of the accident he received moderately severe soft tissue injury, and an exacerbation of the pre existing disc degeneration and spondylitis. He developed left carpal tunnel syndrome, which required an operation to alleviate it. His neck and back pain became constant. The medication caused severe peptic ulceration. He underwent a lumbar radiculogram.

57. Of course his work performance suffered. I do not think, however, that he would have succeeded in obtaining invalidity retirement had he persevered with his attempts to obtain it. He acted reasonably in all the circumstances in accepting voluntary redundancy.

58. In my view the defendant is liable for the economic consequences of that decision, subject to discounts on account of the possibility that he might have been offered, and have accepted, such an offer, either at some time in the past or at some time in the future. For the reasons set out above I think that any such discount should be only slight.

59. He did in fact suffer the significant emotional problems referred to by Dr Gavaghan. It is possible that he might have suffered some of them even had the accident not happened, but if he had they would not have been as severe or as prolonged as they have been. To what extent and for what time they will continue after the resolution of this litigation I do not know, but while I am not persuaded that they are permanent, I do think that his anxiety and post traumatic stress disorder will take some years to abate.

60. He will need ongoing conservative treatment for his neck and back pain.

61. He is 50 years of age.

62. For his pain and suffering I award $50,000.00, of which $15,000.00 relates to the future. Interest on the past component on the conventional basis amounts to $5,500.00.

63. The out of pocket expenses, including a small amount of repayable weekly compensation and its Fox v Wood component, were agreed at $22,604.00.

64. On the issue of loss of income earning capacity, counsel for the defendant staked everything on the proposition that the plaintiff deliberately shaped his case, unjustifiably, so that whatever problems he experienced were laid at the door of the car accident, and that his decision to accept the redundancy offer was an entirely voluntary decision, in which the consequences of the accident played no part. On that basis, he submitted, there was no demonstrated loss of income earning capacity, past or future. For the reasons set out above, I do not agree with that submission. Counsel for the defendant did not put any submissions about the proper approach to quantifying that loss, if I should find in the plaintiff's favour on that issue.

65. Counsel for the plaintiff suggested two alternative approaches.

66. The first was based on the fact that, at the time of the accident, the plaintiff was employed at ASO 6 level. Had he not taken the redundancy offer, he would probably have been able to perform at ASO 4 level only. The difference in net salary is of the order of $100.00 a week. No claim is made for economic loss up to the time of his retirement on 3 April 1989. A loss of $100.00 a week from that date to the present is $30,857.00. The schedule of earnings for the period 3 December 1986 to 13 September 1994, which was admitted into evidence by consent after the case had concluded, showed that he had earned $8,342.57 net since 3 April 1989. That would give a net loss to the present of $22,000.00, in round figures. No further discount would be called for on that hypothesis.

67. The other approach suggested was to allow him a total loss of his salary for the five years that it would take him to qualify as a lawyer. That would be 5 years at a rate of about $540.00 a week, totalling over $150,000.00, less the $8,500.00 odd that he has earned.

68. I think that the latter approach would over-compensate him. It must be borne in mind that what is being assessed is a loss of income earning capacity, incurred at the time of the accident, in so far as it has produced an economic loss for him.

69. I think that the first approach is a more sound indicator in making that assessment.

70. I allow $22,000.00 for past economic loss. One half of the interest on that amount, calculated according to the practice direction, is $9,400.00.

71. For the future, one indicator of the area of discourse, in counsel's submission, would be to look at the present value of $100.00 a week to his age of retirement, a period of about 14 years. That figure, not discounted for contingencies, is almost $60,000.00. The other is to assume that he would lose about another two years' salary while finishing his training and obtaining a position as a lawyer, at something like his former salary. That would give a figure of $56,314.00. I think that the latter approach would give a figure which would not need substantial further discounting. By the time he finishes his training he will be in his mid-fifties, still suffering the effects of the accident. It is not certain that he will obtain employment at his former salary. On the other hand, he has obvious abilities, and maturity and experience is valued by some employers. It is possible that he might do better.

72. It seems to me that both approaches, and a discretionary judgment, all indicate an award of about $55,000.00 for future loss of income.

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

Pain and suffering $50,000.00
Interest 5,500.00
Out of pocket expenses 22,604.00
Past loss of income 22,000.00
Interest 9,400.00
Future loss of income 55,000.00
TOTAL $164,504.00

74. As a global award, that sum seems appropriate in the light of his age, prospects and suffering.

75. I direct the entry of judgment for the plaintiff for $164,504.00.