Tania Louise Smith v Perry Alexander Laird [1995] ACTSC 104 (12 September 1995)

SUPREME COURT OF THE ACT

TANIA LOUISE SMITH v. PERRY ALEXANDER LAIRD
No. SC791 of 1994
Number of pages - 7
Damages

COURT

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

CATCHWORDS

Damages - Personal Injury - Motor Cycle Accident - Head injury - Neck injury - Migraine - Interest - Delay in bringing proceedings.

Limitation Act 1985 s.36 Supreme Court Act 1933 s.69(1)

HEARING

CANBERRA, 26-27 July and 24 August 1995
12:9:1995

Simonius Vischer and Co. v Holt and Thompson (1979) 2 NSWLR 322

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

Counsel for the Defendant: Mr J. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plainitff in the sum of $363,905.00.
2. The question of costs is reserved, with liberty to apply on
2 day's notice.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 6 June 1979.

2. The plaintiff was born on 3 April 1963. She was therefore 16 years of age at the time of the accident. She is now 32. The action was originally commenced in the Magistrate's Court in July 1990, and an order was made in that Court on 12 February 1991 extending the period within which the plaintiff could commence the action pursuant to the Limitation Act 1985.

3. The plaintiff had been forced to leave home at about the age of 11, and at the age of 13 she became a ward of the Minister. In 1979 she was living at the YMCA, where she met the defendant. They became close friends.

4. On the day of the accident she was with the defendant while he installed a new rear vision mirror on his motor bike. She went with him to see some friends at Belconnen high school, and while there the bike fell over. The defendant picked it up, and then readjusted the mirror by twisting it on the handle bar. She then rode as pillion passenger away from the high school. As they approached an intersection she heard the defendant say, "no brakes". Her next recollection is of waking in hospital.

5. The defendant later informed her that the brakes on the cycle had failed because when he readjusted the mirror the braking system had been damaged. Shortly before the hearing he informed her that the rear brakes had been defective. Counsel for the defendant did not admit negligence, but the plaintiff called the defendant as a witness on matters relating to damages, and he was not asked any questions about liability. Counsel for the defendant did not make any submissions about it, and I infer therefore that the accident was caused by negligence on the part of the defendant.

6. The plaintiff had been wearing a helmet. When she woke her head was sore and she had pain in her neck. There was a small laceration to her scalp, which was sutured. A skull x-ray disclosed no abnormality. She was detained at the hospital for some hours, after which a friend took her back to the YMCA, where she went to bed. She felt dizzy all day. Later, when she got up, she vomited and fainted, so she was taken back to hospital. She was complaining of headache and sore neck. She had double vision. On examination her neck was stiff bilaterally over the sternomastoids. After a further period of observation, and when the diplopia had settled, she was again allowed to leave.

7. She spent most of the next few weeks in bed. She gradually improved, but suffered periodic attacks of severe headaches and neck pain. In about September 1979 she became pregnant to the defendant. She suffered a lot from headaches and neck pain during her pregnancy. Her daughter was born in June 1980. She then went to live with her father and stepmother. Her stepmother used to apply ice packs to her neck and head when she suffered the headaches.

8. The defendant separated from her. She later met another man who was the father of her second child, born in September 1981. She married him in February 1982. Her third child was born in April 1983. The marriage was traumatic. She had separated from her husband some time before she was treated for an assault by him in June 1983.

9. She had a number of jobs as a bar attendant or waitress. She was not able to do them properly, as any heavy lifting caused migraine type headaches. She did not consult any doctor on a regular basis, but took tablets to try to deal with the headaches. Sometimes she needed to rest for many hours in a darkened room. She also noticed that she had lost strength in her right arm.

10. In February 1988 she commenced employment as a sales assistant with Robbo's Motorcycles. It was a job that she enjoyed, and she was obviously good at it. Her employer gave evidence, and expressed the opinion that if she had been able to stay at the job she might well have become sales manager. Her employer also confirmed that she appeared to suffer from neck and head pain, and said that from time to time she had applied cool compresses and light massage to alleviate the plaintiff's discomfort. The plaintiff made every effort to remain in full time employment, but was unable to continue because of her ill health. She resigned on 16 June 1988.

11. On 20 April 1989 she consulted Dr. Rodgers for treatment of a migraine headache. She also consulted doctors at his practice for unrelated conditions.

12. On 22 January 1990 she began to receive chiropractic treatment from Mr. Tapper, who detected reduced mobility in the cervical and lumbar spine. X-Rays did not reveal any abnormality. He reported that her initial response to treatment was good, she did not follow through with her treatment and rehabilitation program. During 1990 she is recorded as having sought treatment for migraine headaches from Dr. Tan and Dr. Atkinson.

13. In February 1991 she began to consult Dr. Eaton on a regular basis, but initially for a condition not related to the accident. She began to complain of severe migraine headaches, and to relate them to the accident, in July 1991. He prescribed Mersyndol Forte and suggested that she be seen by a neurologist. He continued to see her for her headaches and other problems over 1992 and 1993.

14. In July 1991 the plaintiff was examined by Dr. Vanderfield, neurosurgeon, for the defendant. She was suffering a severe headache during the examination, which caused some difficulties to the doctor in eliciting an accurate history. He did not doubt that she was suffering as she claimed, but in his opinion her medical history was so complex that he thought it most unlikely that the injuries in June 1979 could be responsible for her continuing complaints.

15. The records of Calvary Hospital show her attendance there for severe migraine headaches in April 1989, November 1991, December 1992, March 1994, September 1994 and January 1995.

16. Over those years she suffered greatly, not only because of her headaches, but from other illnesses, domestic stress, financial hardship and her inability to keep in regular full time employment. She became severely depressed. In January 1992 she was involved in a motor car accident, which exacerbated her neck pain for some weeks, but which appears not to have left any permanent effects.

17. During 1994 she suffered from the effects of chronic fatigue syndrome and severe depression. Dr. Eaton prescribed antidepressant medication. In July 1994 he certified that she was unfit to work, extremely tired, had memory difficulties and cognitive dysfunction. He recommended that her court case be adjourned until 1995. By December 1994 she had responded to treatment and was fit to continue with her claim. No claim is made for economic loss during this period.

18. Dr. Vanderfield re-examined her on 21 February 1995. He reported that she told him that her life was beginning to be better, and that since the end of her second marriage she was under less stress and her headaches had become less frequent. Her neck was still stiff and sore sometimes. The small scalp wound had healed well and there was no tenderness on the scalp. There were no adverse neurological signs. He was still unable to attribute her complaints to the accident.

19. Her solicitors sought a report from Dr. Scott, occupational physician, who examined her on 9 March 1995. She told him that she suffered general headaches 3 or 4 times a week, and migraine headaches about twice a month. Her neck was painful. She also complained of lower back pain, which is not relevant to this claim. His opinion was guarded, because he had not seen any X-Rays, but it appeared to him that she had suffered soft tissue injury to her neck in the 1979 accident. Her condition had become chronic and overlaid with psychological problems arising mainly out of her family situation. Her work capacity was severely affected.

20. Dr. Scott later saw x-ray, CT and MRI scans of the plaintiff's cervical spine. All were normal. He re-examined her on 7 July 1995. His opinion was unchanged. He believed that she has chronic soft tissue injuries leading to a chronic pain syndrome. She could benefit from psychological counselling as well as vocational assessment and possible appropriate retraining.

21. Evidence was given by the plaintiff's sister, a social worker who had close contact with her, her stepmother, a lady whose children she had minded, and the defendant, from all of which it is clear that before the accident the plaintiff did not suffer from the stiff neck and the migraine type headaches that affected her after it.

22. Oral evidence was also given by Dr. Eaton, who has qualifications in occupational medicine in addition to those in general practice. In his opinion, although the actual mechanism of how the headaches are produced is not entirely understood, it is probable that they were causally connected with the accident

23. Although Dr. Vanderfield was not prepared to accept that causal connection he did not exclude it.

24. On the whole of the evidence I am satisfied that the plaintiff suffered a head injury and soft tissue injury to the neck in the accident in June 1979. As a result she has since suffered from a stiff and sore neck, and from migraine type headaches. They were severe and constant at first, becoming intermittent as time passed. Had she been able to enjoy a happy and stress free life the headaches would not have been as constant or as severe as they were, and it was not the defendant's negligence that caused the stresses and unhappy experiences that she went through. On the other hand, her pain and tendency to severe headache made it more difficult for her to cope with her life experiences, and increased the psychological trauma that she suffered as a result of them.

25. Her experience at Robbo's shows that she was capable of obtaining and doing well at a job, and could have obtained a responsible and fulfilling position as a senior sales assistant. Her injury prevented her from keeping that job, and her experiences make it unlikely that she will get such an opportunity in the future.

26. Although her condition is chronic, and none of the doctors give a confidently hopeful prognosis, the severity and frequency of her headaches has now decreased, and she may continue to improve in the future.

27. For her pain and suffering I award $50,000, the greater part of which is attributable to the past.

28. The defendant submitted that, because of the long period of time that has elapsed between the date of the injury and the date of hearing, the amount to be awarded for interest should be significantly reduced.

29. The award of interest under s.69(1) of the Supreme Court Act 1933 is discretionary, and the discretion should be exercised in a broad and practical way. There is no rule that a plaintiff's delay will be visited with a reduction in interest unless it is demonstrated that the delay was excusable. There is no universal requirement that a defendant must demonstrate prejudice in order to get a reduction in interest. All depends upon the circumstances of the particular case.

30. While this action was still in the Magistrate's Court an extension of the limitation period was granted to the plaintiff under s.36 of the Limitation Act 1985. In doing so the Court took into account the matters referred to in s.36(3), and decided that it was just and reasonable to grant the extension. I have read the applicant's affidavit in support of that application. I am not persuaded in this case to reduce the award of interest to the plaintiff on the ground of delay in commencing the proceedings.

31. Another period of delay of about a year was caused by the state of the plaintiff's health. It has not been alleged that her injuries caused or were connected with the syndrome that she then suffered. However, I am not persuaded that she should suffer any penalty in the award of interest on account of that delay.

32. It may sometimes be unfair to a defendant to make an order for payment of interest at commercial rates for a long time into the past. See Simonius Vischer and Co. v Holt and Thompson (1979) 2 NSWLR 322, esp. at 338, 339.

33. Those considerations do not seem particularly weighty to me in this case, because the award of interest on general damages is not at commercial rates. In fact, because of the view that has been taken by higher authority than mine of the method of assessing it, interest on general damages is not even awarded at the 4% rate that I had once thought the High Court had suggested would usually be appropriate, but at 2%.

34. So as far as interest on economic loss is concerned, I think that, because of the discretionary nature of the award, the plaintiff's age at the beginning of the period, the date from which the claim is made and the absence of any claim for the time she was suffering from chronic fatigue syndrome, there should not be any reduction in the award of interest on that component either.

35. For interest on the past component of general damages I award $13,000.

36. The out of pocket expenses amounted to $2,405.

37. For the reasons set out in paragraph D(a) of the Statement of Particulars, there is only a modest general claim for loss of income from the date of the accident until she began work at Robbo's in 1988. I would allow for that by not discounting the other amounts allowed for past loss of income. There is no claim in respect of the period for which she worked there, 14 February 1988 to 16 June 1989.

38. From 17 June 1988 to 30 August 1989 she had some work, but in the light of the evidence the claim for $2,787 is moderate and justified.

39. From 31 August 1989 to 18 July 1991 she was unemployed, and the claim for $30,000 in round figures appears reasonable.

40. From July 1991 to December 1992 she was working part-time in family care. A loss of $17,000 in round figures is made out. There is then no claim until she recovered from chronic fatigue syndrome at the end of 1994.

41. During this year she has tried to work at house cleaning, and has attempted to improve her typing skills. She was not able to persevere with either. Her experience bears out Dr Scott's opinion that her income earning capacity is still severely affected.

42. The evidence from Robbo's Motorcycles shows that it is conservative to estimate her potential capacity at $400 net a week. I allow $14,600 for loss of income this year.

43. Rounding up the sum of those figures, I allow $65,000 for past loss of income. I allow interest, from the date when she left Robbo's Motorcycles, at $33,500.

44. The present value of $400 a week for 33 years at 3% is $439,756. There is evidence tending to show that she will improve, so that her capacity for work is not completely destroyed, and may well increase in the future. I award $200,000 for future loss of income.

45. The total award is made up as follows:

General damages 50,000
Interest 13,000
Out of pocket expenses 2,405
Past loss of income 65,000
Interest 33,000
Future loss 200,000
363,905

46. I direct the entry of judgment for the plaintiff for $363,905.

47. I note from the Court file that costs appear to have been reserved in respect of appearances on 22 January 1991 and 5 February 1991, in the Magistrate's Court, and on 2 December 1994, 16 December 1994 and 3 February 1995 in this Court.

48. I therefore reserve the question of costs, and grant liberty to apply in respect of costs on 2 day's notice.