Vera Tricolas v David Ian Wright [1995] ACTSC 128 (24 November 1995)

SUPREME COURT OF THE ACT

VERA TRICOLAS v. DAVID IAN WRIGHT
No. SC 127 of 1995
Number of pages - 6
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Motor Vehicle Accident - Spinal injury - Subsequent carrying incident - Exacerbation - No issue of principle.

HEARING

CANBERRA, 20-21 September 1995
24:11:1995

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors : Phillips Fox

Counsel for the Defendant: Mr J.D. Harris

Instructing Solicitors : Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff for $80,700.00.

DECISION

HOGAN J This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 21 April 1987. Although liability was not formally admitted it was not contested in any way.

2. The plaintiff was born in Yugoslavia in 1967. She came to Australia in 1970 with her parents. She completed her education in 1985 and began work as a clerical assistant with the Department of Defence in 1986. Although she had been slightly injured in a motor car accident in her last year at school, there were no consequences of that accident that persisted or were relevant to this action. In April 1987 she was physically fit, playing netball and softball, and attending a gymnasium regularly for aerobics and body building.

3. On 21 April 1987 she had been to lunch with a friend, Mrs. Woodcroft. She was driving her car south on Limestone Avenue, returning to work, with Mrs. Woodcroft as her passenger. They were both wearing seat belts. The car in front of her slowed down to make a left hand turn. She also slowed down. The car behind her collided with the rear of her vehicle. Her car was forced into the vehicle in front, turned through 180 degrees, and overturned on to the driver's side.

4. She was helped out of the car through the passenger's side window. She was then taken by ambulance to Royal Canberra Hospital, where, she said, she complained of pain in the neck, shoulder and lower back. The principal issue in this case is whether in fact she injured her lower back in this accident. In evidence she said that the whole of her back, from her neck to her lower back, was X-rayed at the hospital. The hospital records show that the X-rays were of the chest and left ribs, and of the cervical spine. Her complaints as reported were of a sore neck and chest. She had injuries to the chest and abdomen typical of seat belt injury. When she left the hospital she did not return to work, but went home.

5. The next day she consulted her general practitioner, Dr. Doumani. In his report dated 24 November 1989 he records a history that at the hospital she had X-rays of her chest and neck, and at the time of consultation she was complaining of pain in both shoulders, arms and neck. His clinical notes are in evidence, and the record that he made at the time was that she had X-rays of chest, neck and back. I think that the plaintiff did not know exactly what was done, and I do not draw any inferences adverse to her from these minor discrepancies. On examination she was very tender over both trapezius muscles, both sterno-mastoid muscles and the right loin, and springing the rib cage caused pain on both sides of her chest. He did not prescribe any treatment immediately. She returned to work the next day.

6. However, Dr. Doumani reported that she returned to see him on 4 May 1987 complaining that she had by then developed low back pain. He found that she was tender over the L5/S1 disc space and over the sacroiliac joints. Straight leg raising on the right hand side produced pain in the lumbar spine. The plaintiff stated to him that she had avoided all strenuous work since the accident, but that on the day before the consultation she had done four hours of housework, after which the pain had developed. She also complained of headaches and occasional neck pain. Dr. Doumani ordered an X-ray of the lumbosacral spine, which did not disclose any abnormality. Once again he did not institute any treatment. His clinical notes show that he discussed the lumbosacral X-rays with her on 18 May 1987 and advised keeping the condition under observation. On the basis of the undoubted history to that time I am satisfied that her lower back was injured to some extent in the accident.

7. The plaintiff attended on Dr. Doumani on a number of occasions during the later part of 1987 and during 1988, but the visits were for conditions unrelated to the accident. Dr. Doumani did not record any discussion about her lower back over this period. Her leave records show a number of absences from work, two of which she claims were related to her back condition. The nature of the illness is reported as sore back for the absence of 22 June, and was not stated for the absence of 12 October. In her evidence in chief she stated that she took Panadol to relieve pain, and gave up any active participation in sports.

8. On 7 December 1988 she was carrying a box of stationery, weighing between 18 and 20 kilos, at work. When she put the box down she felt extreme pain in the lower back. Her evidence was that before that incident she had constant lower back pain, but it was fairly low grade, and she had learned to live with it.

9. On 9 December 1988 she consulted Dr. Doumani. She told him that a week previously she had been experiencing slight pain in the low back, and described to him the incident of two days before. On examination he found that she was tender over the L5/S1 disc space, to a lesser extent over the L4/5 space, and over the right sacroiliac area. Straight leg raising was limited. He prescribed physiotherapy and anti inflammatory medication. Her leave records show that she was absent from work for a back injury on 9 December 1988. She was also absent on 17 February, 30 March and 10 April, she claims for her back pain, but the reason is not stated in the leave records. The pattern of her absences from work increased during 1990, and back pain is recorded as the reason for many of them. Where the reason is not stated, her evidence was that a number of them related to her lower back pain.

10. Her evidence on this issue was challenged, but the absences were usually for one day only, and I am not persuaded that I should discount her evidence on the matter at all. She saw Dr. Doumani on 15 March and 6 June complaining that her back was playing up, but he did not institute any treatment. I can quite understand her reluctance to see him to get a certificate on every single occasion when she wanted a day off work.

11. On 12 October 1989 she again saw Dr. Doumani. Straight leg raising was limited. He suggested anti-inflammatory medication and physiotherapy. She elected to try physiotherapy alone. He sent a letter to her employer suggesting ergonomic seating at work. She returned on 24 October when he continued the physiotherapy, and commenced a course of anti-inflammatory medication.

12. On 5 March 1990 Dr. Doumani referred her for treatment to Mr. Cousins, manipulative physiotherapist, who began treating her on 3 April. Dr. Doumani discussed her progress with her on 10 April and 23 April. She appeared to be improving to some extent. However he referred her for a CT scan, which was performed on 18 April 1990. The report shows that the L4/5 space was slightly narrowed, but there was no evidence of disc herniation. There was mild degenerative change in posterior joints at 3 levels, but no evidence of neural compression. Dr. Doumani continued the physiotherapy and medication.

13. On 1 September 1990 she married, and moved with her husband to Belconnen. She began to consult Dr. Lang as her general practitioner. She first consulted him about the accident on 11 March 1991. Her complaints were of right shoulder pain, radiating to the neck, headaches and low back pain. The low back pain was aggravated by her periods, doing housework and changes in weather. He diagnosed musculoskeletal strain. He continued treatment with Voltaren and physiotherapy. In February 1994 he reported that he saw her about her lower back on 8 further occasions. There were no more consultations about neck, head or shoulder pain.

14. The plaintiff gave birth to a son in March 1992. While pregnant she continued with the physiotherapy. Her lower back pain was aggravated during her pregnancy.

15. When Dr. Lang saw her on 15 February 1993, she had tenderness of the sacroiliac areas and thoracic spine. There was also paraesthesia of the left thigh, which had commenced during pregnancy, and was persisting. He requested a CT scan, but there is no evidence of the result.

16. She consulted Dr. Lang on 29 January 1994. Her back pain had been affecting her sleep over the previous 5 days. She said that she had been reasonably well over the previous 6 months, having lost some weight and modified her life by avoiding ironing, vacuuming, mopping and sweeping. He ordered a further CT scan, which appears to have been performed in December 1994.

17. On 18 July 1994 Dr. Morris, orthopaedic surgeon, examined her for the defendant. Her complaints to him were of continuing low back pain with only intermittent neck pain. He had X-rays taken, which did not disclose any significant abnormality. He reported that there was little to find on examination of any specific injury to the lumbar spine. He did not think that any specific treatment was needed, apart from modification of her activities by avoiding bending or lifting. She was fit for her normal occupation in the public service.

18. Her solicitors referred her to Dr. Robson, neurosurgeon, who examined her on 19 January 1995. He excluded the numbness on the thigh from the consequences of the accident. He examined the CT scans taken in April 1990 and December 1994. He noted a moderate disc bulge at L4/5, which, together with her complaint of pain, indicated to him that there had been organic changes in the lower back. He advised against a discogram for the sole purpose of investigating further the cause of her pain. He was satisfied that it was more probable than not that she was still suffering from the results of the accident.

19. In May 1995 she resigned from the public service, and began to conduct her own business, known as The Tanning Studio.

20. She continues to suffer back pain. It does not prevent her from working, as she is able to control the length of time for which she sits or stands. She is also able to work only part days when she feels like it. She does not play any sport, but swims regularly and does some light weight training to strengthen her muscles, under Dr. Lang's advice. The anti-inflammatory medication irritates her stomach, so that she relies mainly on Panadol for pain relief.

21. Evidence was given by Mrs. Woodcroft, who worked with the plaintiff in the Department of Defence, and was the passenger in the plaintiff's car when the accident happened. She confirmed that the plaintiff was fit and healthy before the accident, and observed the limitations on her activities after it. She was also present when the plaintiff hurt her back while carrying the box of stationery. Her daughter undertook ironing for the plaintiff after the accident.

22. After his report of 21 July 1994, Dr. Morris reviewed a report by Dr. Doumani. He had not previously known of the incident involving the box of stationery. He expressed the opinion that the plaintiff had experienced a low back strain as a result of the accident, but believed that she had largely recovered from it, because of the lack of complaints about her lower back in Dr. Doumani's notes after the initial two weeks from the accident. He attributed her continuing disability to the stationery incident. He examined her again on 7 August 1995. In his opinion she continued to have symptoms of low back pain and sciatica, which had been improved to a degree with exercise and weight reduction over the last three years.

23. Dr. Morris gave evidence and was cross-examined. It is clear that he based his opinion upon the absence of documentation of complaints. However, I accept the plaintiff's evidence that she did constantly suffer back pain until the stationery lifting episode. I think that there can be a number of reasons for the absence of recorded complaints in a general practitioner's clinical notes, and I am not persuaded to infer from that absence, such as it is, that there was no back pain.

24. Dr. Robson also gave evidence and was cross-examined. He reviewed Dr. Doumani's clinical notes in the witness box. He thought the probability was that the motor car accident caused a weakness in the lumbar spine, which was exacerbated by the carrying incident. That is the view of the evidence that commends itself to me also.

25. The defendant is therefore not liable to compensate the plaintiff for all of her suffering. But he is liable to compensate her for the fact that the injury that he caused made the plaintiff more susceptible to injury from some cause such as the carrying incident, and for the fact that the injury caused by that later incident was greater than it otherwise would have been. In assessing the respective contributions of the two incidents to her condition I note that she suffered the discomfort from the carrying incident after she had put the box down. There was no sudden trauma, such as is often caused by lifting while bending over or twisting. I think that the car accident caused her back to be in such a condition that it was susceptible to a type of injury which was very likely to happen at some time as a result of relatively minor exertion. The defendant must therefore, as I see it, bear the greater part of the responsibility for her suffering and loss, past and future, though not for all of it.

26. Dr. Robson mentioned the possibility of an operation. I think that it is so unlikely that the plaintiff will suffer sufficiently to persuade her to undergo such an operation that the possibility should be practically discounted. She will, however, continue to need medication and occasional visits to a doctor which are at least partially the result of the subject accident. I propose to take that future loss into account as part of her general damages. The plaintiff is not yet 30 years of age.

27. On that basis, I assess the damages for pain and suffering and loss of amenity for which the defendant is responsible at $35,000, of which $10,000 relates to the future.

28. Interest on the past component on the conventional basis is $4,300.

29. The out of pocket expenses paid by Comcare are $2,119. There are further unpaid expenses of about $1,100. The total for expenses is $3,219. I would attribute $3,000 of them to this accident.

30. Her past wage loss was $5,114, and she took unpaid sick leave worth $2,256. I award $7,000 for loss of income. Interest is payable only on the sick leave component. I award $1,400 for interest on loss of income.

31. For the value of the domestic services that she has not been able to carry out, and for which she has partly had paid assistance, I award $10,000. She will require some assistance in the future, but her condition has improved to some extent in recent years, and may improve in the future. I award $20,000 for the value of future domestic assistance.

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

Pain and Suffering $35,000
Interest 4,300
Expenses 3,000
Loss of Income 7,000
Interest 1,400
Past Griffiths v Kerkemeyer 10,000
Future Griffiths v Kerkemeyer 20,000
$80,700

33. I direct the entry of judgment for the plaintiff for $80,700.00.