Garry James Dillon v James Duncan Vincent [1995] ACTSC 127 (24 November 1995)

SUPREME COURT OF THE ACT

GARRY JAMES DILLON v. JAMES DUNCAN VINCENT
No. SC 763 of 1994
Number of pages - 6
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Motor Vehicle Accident - Whiplash - Spinal injury - Subsequent diagnosis of multiple sclerosis.

HEARING

CANBERRA, 12 - 13 September 1995
24:11:1995

Counsel for the Plaintiff : Mr R. Mildren

Instructing Solicitors : Vandenberg Reid

Counsel for the Defendant : Mr W. Austron

Instructing Solicitors : Hunt and Hunt

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff for $60,839.00.

DECISION

HOGAN J This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 22 January 1991. Liability is not in issue.

2. The plaintiff was born in Wagga in 1964. He left school at the end of year 10, and in 1981 began an apprenticeship as a baker. He qualified at the end of 4 years. At the end of 1987 he moved to Canberra, where he continued to work as a baker. On 30 September 1988 he began to work full time at the Bavarian Bakehouse at Chifley, where his employer was a Mr. Jesik.

3. At about 8.25 p.m. on 22 January 1991 Mr. Jesik was driving him home after work. He was seated in the front passenger seat, wearing a seat belt. As they approached an intersection, Mr. Jesik slowed in order to stop at a red light. The light turned to green, so he speeded up again. The defendant, who was turning right, drove across their path, and they collided with the passenger's side of the defendant's car.

4. The plaintiff was restrained by his seat belt, and did not collide with any part of the car, but he was shaken and immediately felt pain in the right shoulder and right neck. An ambulance was called but he declined to be taken to hospital. He went home. He felt very sore and did not sleep well that night.

5. He went to work the next day, where he told Mr. Jesik that he had hurt his shoulder and neck. He gave evidence that Mr. Jesik told him that he was not entitled to workers compensation. Mr. Jesik gave evidence. He agreed that the plaintiff complained to him of pain, but denied that he said anything about compensation. There had been no difficulty about the plaintiff's obtaining compensation on a previous occasion. There was no reason why Mr. Jesik should have said such a thing, which would obviously have been incorrect. On this small issue I prefer the evidence of Mr. Jesik. But I do not think that the plaintiff's credit overall is greatly affected by that finding.

6. The next day he attended Mr. Grigor, a massage therapist. He continued to receive treatment from him about 4 to 8 times a month. Between 23 January 1991 and 8 March 1993 he incurred expense for massage totalling $5, 680. It usually gave him some relief, lasting about a day or so.

7. He did not take any time off work, but continued to suffer discomfort. He said he did not go to a doctor regularly because he was committed to paying off a mortgage as quickly as possible. He did consult a Dr. McQualter in July 1991. He prescribed anti inflammatory tablets and referred him for physiotherapy treatment. He also had X-Rays taken of the cervical spine. The plaintiff underwent physiotherapy for two months, and also received some acupuncture treatment.

8. In August 1991 he cut his finger at work. On 26 October 1991 he ceased work at the Bavarian bakehouse. He looked for work as an insurance salesman, but he was not successful at that occupation. His son was born on 21 December 1991, and he spent some time helping to look after his wife and baby. In April 1992 he obtained part time work at another bakery. That job ceased on 30 June 1992, he claims because his employer wanted him to work on a Saturday, when he had an appointment to see Dr. Ferguson.

9. Dr. Ferguson reports that he first saw the plaintiff in July 1992. He diagnosed subluxation of the cervical spine, which he considered to be consistent with being the result of the accident. He interpreted the X-Rays of July 1991 as showing that the injury was severe, in that it had reversed the normal cervical lordosis. The plaintiff complained to him that he was suffering daily pain in the back of the neck on the right, and in his right shoulder. The pain was continuous, severe at times, and aggravated by heavy activity. There were also daily headaches in the back and top of his head and his forehead. He performed some manipulations, which failed to restore the correct lordosis. He therefore proceeded to perform manipulation of the cervical spine under general anaesthetic. He reported that the treatment terminated the headaches, but did not restore the lordosis to normal. When he last saw the plaintiff, the date being uncertain, there was a full range of neck movements, with pain at the extremes of movement, and partial numbness and weakness of the right arm. He considered that his treatment had effected a substantial improvement in the plaintiff's condition, although he also thought it likely that his condition would be aggravated by heavy work.

10. The plaintiff, as sometimes happens, remembers the results of Dr. Ferguson's treatment differently. He said that the first manipulation made him feel worse, and although the treatment under anaesthetic made his spine feel straight at first, within a day or two he was back to the same condition of pain in the right shoulder and right neck. On the other hand there is no significant evidence of substantial headaches due to the accident after this time.

11. He obtained part time work as a baker. His wife had a full time job with the government, and he spent time looking after his son. He ceased working in that job in December 1992, because, he said, he felt that he was doing himself harm. In January 1993 he obtained a position as a parking inspector with the Department of Urban Services. He experienced physical and emotional problems in that occupation. He began to smoke marijuana more frequently than he had previously. He underwent acupuncture. He ceased the massage from Mr. Grigor. He received some chiropractic treatment at Farrer. The various treatments gave only short term relief.

12. Later in 1993 Dr. Cairns examined him for the defendant. There is no report from Dr. Cairns in evidence, but there is a report by Dr. Galloway of an MRI scan that he requested, which was performed on 30 September 1993. The only abnormality was a small broad based posterior disc bulge at C3/4, but no evidence of a focal disc protrusion.

13. He gave up his job as a parking inspector in September 1993. Shortly afterwards Dr. McQualter referred him for an opinion to Dr. Duncan, rheumatologist. Dr. Duncan summarized the history that he was given as follows:

Essentially he has had some degree of mid and upper cervical
pain since his motor vehicle accident in January 1991. It is
probably not as severe as it was initially but it continues to
be troublesome. He was somewhat vague about the nature and
severity of the pain and it is difficult to assess how much
interference it really causes. His last job was as a Parking
Inspector and certainly it was not neck pain that resulted in
him leaving his employment. He feels that physical and natural
therapies are preferable to medications and certainly would be
very much against any surgical intervention.

14. On examination he found tenderness over the left C3/4 facet joint. That was consistent with the MRI finding. He advised against surgery or any further invasive investigations. He suggested upper body strengthening by exercise such as swimming. He suspected that there were multiple other factors that were influencing the plaintiff's life.

15. His consumption of marijuana became quite heavy. He and his wife separated at the beginning of 1994. On 14 February 1994 he began to consult Dr. Doumani, who found some limitation of movement due to pain in the neck. It was obvious to him that the plaintiff's consumption of marijuana was excessive and harmful and he counselled him strongly to give it up. The plaintiff followed his advice. When he saw the plaintiff on 24 February 1994 he received complaints that the plaintiff was having great difficulty sleeping because of neck and shoulder pain. On 3 March 1994 he prescribed medication to help with sleep and pain control. He also prescribed physiotherapy and more acupuncture. That gave some relief, and on 15 March 1994 the plaintiff stated that he was sleeping much better and his neck was loosening up. On examination he had a full range of movement. Dr. Doumani's prognosis was nevertheless extremely guarded.

16. He continued to see Dr. Doumani. Although there were some temporary exacerbations he appeared to improve. In May the physiotherapist reported that the gains that had been made over the past 3 months had been significant. By September 1994 Dr. Doumani felt that he was in a situation where he might be able to return to work within the next few months. He advised that any return to work should be graduated.

17. Tragically, however, a much more serious illness supervened. He noticed difficulty in walking. He saw Dr. Doumani in November 1994. Dr. Doumani referred him to Dr. Andrews, neurologist. At first it was suspected that the manipulation by Dr. Ferguson might have caused some damage. An MRI scan was ordered. Both doctors then diagnosed multiple sclerosis. In the course of his investigations Dr. Andrews obtained a history, especially from the plaintiff's wife, of a change in the plaintiff's personality and behaviour extending as far back as a couple of years. Although he described the plaintiff's difficulties as mild at that time, Dr. Andrews was convinced that the plaintiff would never again be fit for work and recommended that he receive sickness benefits. The plaintiff makes no claim for loss of earning capacity beyond 14 September 1994.

18. On 16 February 1995 the plaintiff was examined for the defendant by Dr. Macleish. In his opinion the plaintiff had fully recovered from the effects of the accident, which he described as musculo-tendinous injuries to the right side of the neck and right shoulder. His examination and investigations did not reveal to him the plaintiff's multiple sclerosis.

19. Dr. Doumani reported on 7 Mach 1995 that in his opinion the plaintiff's condition when he first saw him in February 1994 was caused entirely by the accident. He regarded him as then incapacitated for work by the effects of the accident, though he must be mistaken in the understanding that he expressed that the plaintiff had not worked since the accident. He considered that the plaintiff was still suffering some after effects of the accident, and that he would from time to time need treatment.

20. Dr. Doumani gave evidence by telephone. There was nothing in the cross-examination that caused me to discount his opinion to any extent.

21. Mr. Jesek also gave evidence, mainly to the effect that the accident was not particularly violent. I accept that, but it was typically the sort of collision that causes whiplash injury.

22. However, I think it is clear that the injury did respond to treatment to a significant extent, and that it was not the state of his neck that caused all the plaintiff's absences from work, even before the multiple sclerosis began to take effect. It is impossible to determine the extent to which his income earning capacity was affected by the injury with any pretence of precision. The case is typically one calling for the exercise of a discretionary judgment.

23. I am satisfied that the plaintiff acted reasonably in seeking and undergoing the various treatments that he received, and that all the out of pocket expenses claimed should be allowed.

24. In my view the plaintiff sustained a moderately severe whiplash injury to the neck, which persisted for some years before responding significantly to treatment. It then improved, but it continues to trouble him to some extent, and will continue to do so. I would include the cost of occasional treatment in the future in his award for general damages.

25. For his pain and suffering, on that basis I award $30,000, of which $5,000 relates to the future. Interest on the past component amounts to $2,415.

26. I assess his loss of income attributable to the accident at $20,000.

27. That loss did not really begin until he left the job as a parking inspector, and ceased on 14 September 1994, so that a conventional treatment of interest is not appropriate. Interest on the whole amount in accordance with the practice direction from 14 September 1994 amounts to $2,170. I allow $2,500 for interest on loss of income.

28. The out of pocket expenses are $9,583. The defendant has paid $3,659, and the balance, namely $5,924, is unpaid, so that no interest is claimed on that item. I will include only the unpaid portion in the judgment.

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

Pain and Suffering $30,000
Interest 2,415
Loss of Income 20,000
Interest 2,500
Out of Pocket Expenses 5,924
$60,839

30. I direct the entry of judgment for the plaintiff for $60,839.00. I will hear the parties on costs.