Gayle Elizabeth Blenkinsopp v the Commonwealth of Australia and Scott Bradley Mitchell [1995] ACTSC 102 (7 September 1995)

SUPREME COURT OF THE ACT

GAYLE ELIZABETH BLENKINSOPP v. THE COMMONWEALTH OF AUSTRALIA AND SCOTT BRADLEY
MITCHELL
No. SC722 of 1992
Number of pages - 4
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft tissue injury - No issue of principle.

HEARING

CANBERRA, 22-23 August 1995
7:9:1995

Counsel for the Plaintiff: Mr G. Stretton
Instructing Solicitors: Messrs. Phelps Reid

Counsel for the Defendant: Mr J. Richards

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT: Judgment be entered for the plaintiff for $70,423.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 15 November 1990.

2. The plaintiff is a married woman with 4 children, who was born in England in 1959. She came to Australia with her family in 1961, and grew up and was educated in Western Australia. With her husband and children she came to Canberra in 1985, and in 1987 returned to the work force, finding employment as a carer with Barnado's. She spent some years as a part time coordinator of an organization which provided accommodation for young people, and in early 1989 took up employment with an organization called Temporary Family Care Service, which provides support to families in crisis.

3. On 15 November 1990 she was driving her car past the War Memorial towards Fairbairn Air Base, where her husband was stationed. A vehicle which had been travelling in the opposite direction crossed to her side of the road and collided with the driver's side of her car. Negligence on the part of the driver of that vehicle is not in issue.

4. She was wearing a seat belt, and did not strike her head or lose consciousness. What she noticed when she got out of her car was that she had a tingling sensation over the length of her right arm. Her husband was contacted. He came and took her first to the police station, and then home. Over the next few days the pain in her arm increased and she experienced worsening pain in her neck.

5. Four days after the accident she consulted her general practitioner, Dr. Smee. She complained to him of severe and persistent pain of her neck, right shoulder, right elbow and right wrist. He found that her cervical spine was tender and stiff and there was tenderness over the right wrist, elbow and shoulder. He prescribed Brufen tablets and arranged for physiotherapy. She was treated by Mr. Rumore between 23 November 1990 and 4 February 1991. He reported in March 1991 that she still needed continuing physiotherapy.

6. Dr. Smee gave her 3 days off work in November, and on 5 February 1991 advised her to cease the physiotherapy as it appeared to her to be aggravating her condition. He prescribed a soft collar to alleviate some of the neck discomfort. He also referred her to Dr. Cassar, who took a thermogram and provided massage, acupuncture and thermal treatment, which gave her some relief.

7. On 19 July 1991 she was able to resume work for 20 hours a week. She still had pain in her neck and arm, together with headaches, and felt depressed. Dr. Cassar referred her to Dr. Newcombe, neurologist, who examined her on 13 August 1991. On examination he found that her right hand was blue and cold. There was tenderness and resistance over the clavicle. He thought that she had a right thoracic outlet syndrome, and referred her to Dr. Andrews for nerve conduction studies.

8. Dr. Andrews saw her on 16 August 1991. He found no neurological deficit. An MRI scan was normal, as were the electrical studies. He was not convinced that she had a thoracic outlet syndrome, and expected that her symptoms would settle with conservative treatment. She had been off work for the week before she saw him, but he thought that she should be able to return to work in the near future.

9. Dr. Newcombe saw her again on 11 September 1991. She still had changes in the right hand and supra clavicular tenderness, and Adson's manoeuvre was positive, although it had been negative on the examination by Dr. Andrews. He adhered to his diagnosis, but agreed that, whatever the explanation, conservative management was appropriate. He expected gradual improvement.

10. Despite her best endeavours, she was unable to carry out her duties effectively, and her employment was terminated as from 7 October 1991. It appears from the notice that she was given, and the reference which accompanied it, that her services were valued and that it was her injuries that caused the termination of her employment.

11. Her husband was posted back to Western Australia, and she moved there with her family in January 1992. On 29 January 1992 she was referred to the Royal Perth Hospital, where she underwent a stellate ganglion block on 13 March and 1 May 1992. Dr. Anderson, specialist anaesthetist, reported that it was possible that she might need further blocks in the future. She did not return for further treatment.

12. In evidence she stated that she cancelled an appointment for a further block because she was ill with a viral infection, and did not seek further treatment because of stress, and because different doctors were telling her different things about her prognosis. She has continued to take medication, but has not sought active medical intervention since May 1992.

13. In September 1993 she obtained work as a residential aide with Catholic Care, an organization caring for young children with physical disabilities. She worked there initially for 20 hours a week, and since September 1994 has worked full time. Dr. Anderson reviewed her on 4 August 1994. She told him that she was pain free most of the time. She did have occasional days off because of pain. He thought that there was no need for further treatment.

14. The plaintiff was examined by 2 doctors on behalf of the defendant in February and April 1994, but their reports were not tendered. None of the plaintiff's doctors were required for cross-examination. The principal issue raised by the defendant relates to the claim for economic loss.

15. In summary, in November 1990 the plaintiff sustained a moderately severe soft tissue injury to the cervical region. Over a period of two years, with conservative treatment, her condition improved to a stage where she no longer required active medical treatment. By late 1993 she was able to resume work, and by late 1994 to undertake full time work. She is left with an occasional ache in her shoulder and arm, and headaches. There is also an occasional change in colour and sensation in her right hand. She does not use her hand or drive a car as much as she used to. There is no suggestion that her condition will deteriorate, and I think it may even continue to improve.

16. For her pain and suffering I award $25,000, of which $5,000 or less would relate to the future. For interest on the past component I award $2,000. The out of pocket expenses are agreed at $9,740. She received worker's compensation payments, and the Fox v Wood component is not disputed at $1,273.

17. From the date of the accident to the termination of her employment she was absent from work for 117 days, and I allow the claim for that period in full, at $11,910.

18. From the termination of employment on 7 October 1991 to early January 1992 her loss of income was entirely attributable to the accident. I allow $6,500 in respect of that period.

19. Even had the accident not happened she would have accompanied her husband back to Perth, and there may well have been some months before she obtained employment. I am also not persuaded that even when she obtained it she would have been able to earn at the same rate as she had received in Canberra. The claim for the period from January to 13 September 1993, when she began part-time work at Catholic Care, must therefore be significantly discounted. I am satisfied that her injury did play some part in her inability to obtain work in that period. I allow $10,000 for the loss during it.

20. I also find, on the basis of the plaintiff's answers in cross examination, that it was largely a matter of choice, rather than her injuries, which led to her taking only part-time employment rather than full-time employment at Catholic Care.

21. I am also not persuaded that there has been, in Western Australia, any employment available to her which paid more than Catholic Care and which her injury prevented her from obtaining. I am not satisfied that she suffered, as a result of the accident, any economic loss after September 1993, nor that she will suffer any in the future.

22. I therefore award $28,410 for past economic loss. She received $18,903.70 in periodic worker's compensation until some time in 1993. Interest on $10,000 from the date of the accident in accordance with the practice direction is $6,152. I allow $4,000 for interest on past economic loss.

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

Pain and suffering $25,000
Interest 2,000
Out of pocket expenses 9,740
Fox v Wood 1,273
Past economic loss 28,410
Interest 4,000
$70,423

24. I direct the entry of judgment for the plaintiff for $70,423.00.