Emily Jacka v Ian Terrence Kenny [1995] ACTSC 50 (26 May 1995)

SUPREME COURT OF THE ACT

EMILY JACKA v. IAN TERRENCE KENNY
No. SC544 OF 1993
Number of pages - 4
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Whiplash cervical injury - No issue of principle.

HEARING

CANBERRA, 15 February 1995
26:5:1995

Counsel for the Plaintiff: Mr G.Stretton

Instructing Solicitors: Sneddon Hall and Gallop

Counsel for the Defendant: Mr C.McKeown

Instructing Solicitors: Clayton Utz

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff for $39,254.00

DECISION

MASTER A HOGAN This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 30 April 1993.

2. The plaintiff is a single woman, born in Canberra on 20 September 1968. She completed her schooling at CCEGGS in 1986, and was employed as a sales assistant at a number of clothing stores from 1987 to 1989. In March 1990 the plaintiff returned to full-time study at the Metropolitan Business College, obtaining a Diploma in Business Studies in March 1991. She returned to full-time employment, firstly for Portmans from March to August 1991, and then running her own store in partnership from August to November 1991. From December 1991 to September 1993 she was employed by the Institute of Architects as personal assistant/sales manager, after which she was employed by the CSIRO as a finance officer, the position she currently holds.

3. Prior to the accident which gives rise to this action, the plaintiff was involved in another motor vehicle accident. On 8 June 1992 the car in which the plaintiff was a front seat passenger left the road, resulting in soft tissue injuries to her back and neck muscles and seat belt bruising to her left shoulder. The plaintiff consulted Dr Jolley, her general practitioner, on one occasion following that accident, and recovered fully within a couple of months. In his report of 28 January 1995 Dr Jolley states that his notes show no complaints of back pain before the second accident.

4. The accident which gives rise to this action occurred at the intersection of Empire Circuit and Tasmania Circle, Forrest, ACT, when the car driven by the defendant collided with that driven by the plaintiff. Liability was not in issue. The plaintiff gave evidence that the impact of the collision pushed her car into a traffic island and caused it to flip onto its roof before righting itself. The plaintiff experienced instant pain in her neck and was treated at the accident site by attending police officers who provided her with a neck brace. Following the arrival of the ambulance the plaintiff was taken to Woden Valley Hospital. She was complaining of neck pain. Cervical x-rays were normal. She was allowed to leave, with a hard cervical collar.

5. On 3 May 1993 the plaintiff consulted Dr Jolley, complaining of tenderness behind the right ear and in the left temple, and of neck pain and restricted neck movement. Dr Jolley authorised two weeks sick leave and recommended a course of physiotherapy which the plaintiff undertook between 6 May 1993 and 1 August 1994, comprising twenty-one visits in all.

6. The plaintiff again returned to Dr Jolley on 10 May 1993, complaining of cramps in the mid back, pain in the left knee, the right leg and left elbow. The plaintiff also suffered a recurrence of irritable bowel syndrome, a stress-related condition for which she had been treated prior to the accident. Dr Jolley prescribed Colofac, and she later consulted Dr Hillman in relation to this latter problem. In addition, she experienced sharp pain between the shoulder blades whenever she twisted her body. Although that pain would settle of its own accord, it may have taken up to a day to do so.

7. Up until the time of the accident, the plaintiff was very involved in a variety of fitness activities, including aerobics, circuit work, netball, occasional tennis and abseiling. In her examination in chief she gave evidence of how she had tried to resume her sporting activities but had been forced to give them up because of the pain and stiffness they caused.

8. At the time of the accident the plaintiff was sharing a flat with a friend. Immediately after the collision she returned home to be cared for by her mother, where she remained for two weeks. However the plaintiff gave evidence that she found living alone difficult, both because of the loss of her car in the accident and the loss of independence which followed, and because of her pain and the depression which it caused, she returned again to her mother's home after several months. The plaintiff was still living at home with her mother at the date of the hearing. In addition to the moral support which the plaintiff feels she needs, the plaintiff receives neck massages several times a week which alleviate the pain and stiffness there.

9. The plaintiff returned to full-time employment on 13 May 1993.

10. On 16 February 1994 the plaintiff was examined for the defendant by Dr Keiller. Dr Keiller's report was not tendered in evidence.

11. In addition to physiotherapy, in May 1994 the plaintiff commenced a course of chiropractic treatment, which focussed on the pain and restricted movement in the neck and middle back area. This treatment has, apparently, been less than successful, given the plaintiff's evidence of recurrent back and shoulder pain and restricted movement.

12. In his report dated 12 June 1993 Dr Jolley was cautious in his prognosis because of the soft tissue injury she sustained in June 1992. In cross-examination the defendant failed to establish that the first motor vehicle accident had any lasting effect on the plaintiff, or that the symptoms she now suffers were caused or are exacerbated by that first accident. There was no medical evidence to support that hypothesis. Furthermore his attempts at establishing any link between the plaintiff's sporting activities and the symptoms proved fruitless. I therefore find that the accident of 30 April 1993 is the sole cause of the plaintiff's present condition.

13. The effect of the accident upon the plaintiff has been substantial. Despite undergoing physiotherapy and a course of chiropractic treatment she continues to experience pain and restricted movement. Her lifestyle has changed dramatically from one in which she was heavily involved in a range of physical activities to one in which, as she described in her evidence in examination-in-chief, she has become something of a recluse who has no sporting involvement and little social life. Although she admits to being able to undertake gentle exercise such as swimming and walking, the fact that these activities do not give her the enjoyment that her previous sports, particularly netball, gave must be taken into account in assessing the effect of the injuries overall.

14. Dr Jolley, in his most recent report dated 28 January 1995, states that
"As far as prognosis is concerned, Emily has persisting symptoms

twenty months after a second motor vehicle accident which caused
neck pain. I do not expect her complaints to settle completely and
I would not be surprised to find demonstrable cervical inter
vertebral disc disease 10 or more years down the track."

15. Dr Andrews, neurologist, examined her at the request of her solicitors on 9 December 1994. His conclusions were as follows:

"there appears to have been soft tissue injury to the neck, thoracic
spine and to lesser extent the lumbar spine. There may have been an
element of facet joint strain given that the symptoms are
intermittent in the cervical region.
She finds that twisting movements tend to aggravate her symptoms.
She finds rest most useful. Manipulation to date hasn't proved that
useful in that it only has a temporary effect.
The problems here will resolve very slowly over time. There may
need to have (sic) further manipulation and the use of
anti-inflammatory agents from time to time, particularly if a
flare-up lasts for more than a few days."

16. The evidence from Dr Jolley and Dr Andrews was not challenged.

17. I make a specific finding that her back pain did result from the accident, and not from her attempts to return to playing netball.

18. I also note that before the accident the plaintiff, according to Dr Jolley, had a long history of borderline depression, dating back to 1985. The defendant must take the plaintiff as she was when he injured her. Her emotional reaction to her pain and disability has been the greater because of her condition.

19. Dr Andrews' report confirms that cervical facet joint injuries can take a very long time to resolve. Probably her complaints will never settle completely. Future acute episodes of pain are to be expected.

20. For her pain and suffering I award $35,000, of which $10,000 relates to the future.

21. Interest on that amounts to $1,035.

22. Her wage loss is agreed at $836.95. That was sustained before May 1993, but as she was on her way to work at the time of the accident she received worker's compensation over the relevant period, and no claim is made for interest on the wage loss. The Fox v Wood component is agreed at $159.63, and the out of pocket expenses at $2,222.20.

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

Pain and suffering 35,000
Interest 1,035
Wage loss 837
Fox v Wood 160
Expenses 2,222
______
$39,254
======

24. I direct the entry of judgment for the plaintiff for $39,254.00.