Elke Einfalt v John Rowland Farquharson [1995] ACTSC 100 (5 September 1995)

SUPREME COURT OF THE ACT

ELKE EINFALT v. JOHN ROWLAND FARQUHARSON
No. SC244 of 1994
Number of pages - 6
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash - Fractured wrist - No issue of principle.

HEARING

CANBERRA, 21-22 August 1995
5:9:1995

Counsel for the Plaintiff: Mr R. Mildren
Instructing Solicitors: Vandenberg Reid

Counsel for the Defendant: Mr F.G. Parker

Instructing Solicitors: Sly and Weigall

ORDER

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $111,716.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 1 July 1991.

2. The plaintiff was born on 14 May 1972. At the time of the accident she was single. She has since married. She left school before completing her year 12 certificate, because of illness, and although she did some further study at TAFE she did not obtain that certificate. In early May 1991 she began work selling Sheraton haberdashery at David Jones.

3. In that same month, May 1991, she began a beauty therapy course, for which she paid $2000. The course required her attendance at night classes on four nights a week for one year. She had already formed an intention to become a fully qualified makeup artist. She had already done some part time hairdressing as part of the basis for that career, and saw the course as another part of that basis. She valued her work at David Jones because she was able to attend the course and to save money for her further training in her chosen career.

4. On 1 July 1991 she was driving to work at about 7.30 a.m.. As she was making a right hand turn at a set of lights at Caswell Drive, the defendant's 4 wheel drive vehicle disobeyed a red light and collided with the left hand side of her car. The impact spun her car around, there was a second impact with the defendant's vehicle, and her car came to rest about 30 metres from the point of collision. She was wearing a seat belt, and did not strike her head or lose consciousness, but the impact was obviously violent.

5. She was helped out of her car. She was shocked. Her right hand and wrist were painful and already swelling, and she felt sore all over, but especially in her back.

6. Her mother took her to Calvary Hospital, where she spent most of the day. X-rays showed that her wrist was fractured. A plaster of paris backslab was applied to her right forearm, which was fitted with a sling to keep it raised. She was also issued with a cervical collar, and allowed to go home with her mother. She had a disturbed night and the next day felt that the muscles of her back were tight, stiff and painful, especially in the neck and shoulder blade area.

7. She could not return to work. On 5 July 1991 she consulted her general practitioner, Dr. Pickup. On examination she found that the plaintiff's neck and back were tender, and all movements were restricted. She prescribed physiotherapy and anti inflammatory medication.

8. The plaintiff's condition improved slowly. She stopped wearing the collar after a few weeks. The plaster was removed from her forearm after about 5 weeks. She underwent physiotherapy once or twice a week for 2 or 3 months. On 2 October 1991 Dr. Pickup noted that her back still hurt on lifting and forward flexion of her head hurt her neck. Her wrist was still aching. She suggested swimming as rehabilitation.

9. She was seen by Dr. McGrath, rehabilitation consultant, who could not find a specific musculoskeletal injury. In December 1991 Dr. Pickup noted complaints of pain on flexion of her neck and thoracic and lumbar spine.

10. Her solicitors referred her for a report to Dr. Keiller, who examined her on 24 January 1992. She was still off work. He found her neck movements caused tenderness at the extremes of normal range, with some limitation of flexion. There was local tenderness in the neck and shoulder muscles. There was marked tenderness on deep palpation at the lumbar level. On standing there was mild involuntary muscle spasm. The right wrist was still extremely sore with some loss of dorsiflexion. He diagnosed soft tissue injuries to the neck and low back, and probably a ligamentous injury to the right wrist as well. He suggested further conservative treatment. He thought that she was still unfit for heavy work, such as lifting boxes of Manchester. She was however fit for restricted duties, and she wanted to get back to work for emotional reasons.

11. Late in 1991 she went to live with her grandmother, who had been involved in an accident. Early in 1992 her employer terminated her employment. She did not continue with the beauty therapy course. In mid February 1992 she obtained employment as a hairdresser, where she worked for about 5 or 6 weeks. She was able to do the work, but found some difficulty with raising her arms when cutting. Dr. Pickup issued a certificate for absence from work for some time in April and May 1992. She became dissatisfied with life in Canberra, and moved to Sydney where she obtained employment as a shop assistant in June 1992.

12. Her solicitors referred her also to Dr. Andrews, neurologist, for a report. He saw her on 20 July 1992. She told him that the wrist fracture had healed fairly well, although she avoided lifting heavy things with her right hand and it did ache sometimes. The neck pain was persisting, and was associated with headaches, which were sometimes severe enough to cause nausea. There was also pain in the mid thoracic and low lumbar regions. He found some tenderness and restriction of movement at the C6/7 level. There was no neurological deficit. He ordered an MRI scan to investigate the C6/7 disc. He attributed the headaches to the neck injury. The MRI scan was normal. Dr. Andrews therefor diagnosed a facet joint problem at the C6/7 level.

13. Dr. Corry, rehabilitation consultant, also examined her at the request of her solicitors, on 27 July 1992. Her complaints to him were much the same as those to Dr. Andrews. So were the results of his examination. He also diagnosed soft tissue injury to the neck and back, which because of the length of time since the accident was now causing a chronic low grade disability. The prognosis was uncertain. Surgical treatment was not indicated, but physical therapy might help improve the symptoms.

14. She had met the man who was to become her husband, and at the end of August 1992 she resigned from her job and travelled to Denmark to be with him. While there she worked for a short time caring for babies, but found that the bending and lifting caused pain in her neck and back. She also experienced discomfort in the bitter cold of the Danish winter, especially when she slipped on icy pavements. She married in February 1993, and in August 1993 returned with her husband to Australia, where he obtained employment as a foreign exchange dealer.

15. On 16 September 1993 she again saw Dr. Andrews. She complained that she still had some problems with her neck and headaches, and that over the previous 2 months she had developed low back pain with symptoms referred into the left leg. Dr. Andrews ordered a CT scan of the lumbar spine. The scan was quite normal, so that he was not able to identify any lumbar disc pathology, and he expected a good prognosis for the low back pain.

16. At about the same time she returned to work at the haberdashery where she had been employed before traveling to Denmark. She experienced some discomfort during the stocktaking process. In October she moved to another firm at the suggestion of her former manager, selling leather goods. Her experience there was not happy for her, and she resigned, to take a position at David Jones as a beauty and skin care consultant.

17. On 6 December 1993 she was examined by Dr. Glenn, consultant surgeon, for the defendant. The history and complaints that she detailed to him were consistent with her evidence and what she had told the other doctors. His opinion also was that she had suffered a fracture of the right wrist and musculo-ligamentous injuries to the neck, thorax and lumbar regions. There were residual, painful limitations of movement of the cervical and lumbar spines. He expected further improvement in her symptoms.

18. She returned to consult Dr. Pickup, who found her generally better than when she had previously seen her, and she seemed to be coping with her job, with some restriction in freedom of movement and some residual pain.

19. Dr. Corry reexamined her on 12 April 1994. She continued to complain of the previous symptoms. A recent purchase of a water bed and chiropractic treatment appeared to have been beneficial. He suggested a more active strengthening exercise regime in order to effect significant further improvement. He thought that her complaints of difficulties at work were reasonable and anticipated that she should be able to build up her hours to full time work over the next 3 to 6 months.

20. Dr. Keiller reexamined her the following day. He came to much the same conclusion as Dr. Corry.

21. The defendant arranged her examination by Dr. Anderson, consultant occupational physician, who saw her on 27 May 1994. In his assessment she was not physically as fit as she appeared, and he seemed to agree substantially with Dr. Corry that active exercise would be beneficial for her.

22. In July 1994 she resigned from her position at David Jones. She had become dissatisfied with the prospects of advancement there in her career, and she and her husband had begun to renovate their house. For the rest of that year she had no regular employment, but occasionally helped a friend carry out beauty treatments. On about 4 occasions she did the makeup of the bridal parties for weddings.

23. She also converted a room in her house so that she could do facial therapy at home. She equipped it with a higher table so that she could work without discomfort. In January 1995 Dr. Corry reexamined her and she told him that she had started her own small business, and had found that treating about 3 clients a day caused minimal aggravation of her symptoms. On examination he found no significant change from his previous reports. He concluded that her situation was stable. In his assessment she had some significant restriction in work capacity, and would be unable to maintain full time work in a heavier occupation. Given suitable selection of duties, she could do full time work.

24. At the beginning of this year she enrolled in a full time course at a makeup College, in order to obtain the best available qualification for her chosen career as a makeup artist. She is able to perform the necessary activities, but sometimes they are heavy and cause her significant discomfort. She is obviously talented in her art. She presents well and is engagingly enthusiastic about her work. I have no doubt that she will succeed in her career.

25. Dr. Pickup saw her in August 1995. She confirms that the plaintiff is generally able to cope with her work, but that strenuous activity, which is necessarily involved in it, causes her significant discomfort. She noted that the plaintiff had undertaken a gymnasium program to strengthen her back and that she had lost some weight, which the rehabilitation specialists had suggested would be beneficial. A recent trial of anti inflammatory medication had helped her neck and back pain a little. Headaches were now rare. She also was of the opinion that after the period of 4 years since the accident her present level of disability was likely to continue indefinitely.

26. The plaintiff suffered injury in an accident when she was thrown from a horse early in 1992. A rib was fractured, and her lung punctured. I do not think that the incident played any part in causing the disabilities involved in this action.

27. The only doctor who was required to attend for cross examination was Dr Anderson, but his oral evidence added little to the picture painted by the written reports. The medical evidence in this case seems to me to be broadly consistent overall.

28. The plaintiff was involved in a relatively severe collision. She sustained a fractured wrist, which healed normally, but which will always give her an occasional uncomfortable reminder of the accident. She also sustained moderately severe soft tissue injuries to the neck and back, which were very slow to improve, and which still cause pain, discomfort and limitation of movement on strenuous activity.

29. She was unable to work at all in her then occupation for over 6 months. Her progress towards qualification for her chosen career was held up. She will be able to qualify for it, and I think will do well in it, but the occasional strenuous or lengthy activity involved in it will always cause her pain and discomfort. That fact may restrict her occasionally in the choice of engagements that she might undertake. With care and exercise she may be able to mitigate those effects to some extent. She is only 23 years of age.

30. She may have needed some domestic assistance for a short time. I do not think that need is continuing. The claim in the particulars is modest. I include it as part of general damages.

31. For her pain and suffering I award $45,000, of which $25,000 relates to the past. For interest on that past component I award $2,000.

32. The out of pocket expenses are agreed at $1,716.

33. I am not persuaded that her injuries were the only reason why she discontinued the course she had undertaken, but they probably played some part in her decision. I do not think that she is entitled to recover the $2,000 that she had paid for the course. I would assess her economic loss up the date when she left for Denmark at $13,000.

34. The assessment of the loss after her return is very much a matter of judgment rather than calculation. I think that there would have been substantial periods during which she would not have worked at all, or at least part time, even if she had not been injured. The time spent working on the house and her involvement in the course tht she is presently undertaking would account for a considerable part of the two years since her return from Denmark. I also think that the amount that she has earned since she set up her own business may well be greater than the sum acknowledged in the particulars..

35. I would assess her loss during that period at $30,000, making the total past economic loss $43,000.

36. In assessing interest on the component I note that one half of the interest on that sum according to the practice direction is $11,139. The year's absence in Denmark is relevant. I assess interest on the past economic loss at $10,000.

37. I think that for the future it would be unjust to the defendant to award more than a modest buffer, to take account of occasional jobs that she might not undertake because they might be too strenuous for her. I allow $10,000 for future economic loss.

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

Interest 2,000
Out of Pocket expenses 1,716
Past economic loss 43,000
Interest 10,000
Pain and suffering $45,000
Future economic loss 10,000
$111,716

39. I order the entry of judgment for the plaintiff in the sum of $111,716.