Barbara Lorraine Pearce v Dale Edward Conroy [1995] ACTSC 56 (22 June 1995)

SUPREME COURT OF THE ACT

BARBARA LORRAINE PEARCE v DALE EDWARD CONROY
No. SC209 of 1994
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 and ligamentous injury to lower back - No issue of principle.

HEARING

CANBERRA, 22:3:1995
22:6:1995

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: Sneddon Hall and Gallop

Counsel for the Defendant: Mr J.D. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the Plaintiff in the sum of $60,000.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 25 October 1988.

2. The plaintiff is a married woman with two children, born in Victoria in 1945. After leaving school she worked for some time in a legal office. In 1967 she experienced some lower back discomfort in the region of the coccyx. She received chiropractic treatment over a period of about a year, during which time she was not absent from work, and after which she had no further problems in the region.

3. In 1968 she married and came with her husband to Canberra, where she obtained clerical employment in the public service. She left the work force when her children were born. In about 1977 she began part time work again, in a solicitor's office. She had clerical employment in a number of similar positions until in August 1986 she began work with the Aboriginal Development Commission, now ATSIC, where she was employed at the time of the accident. Although her medical records disclose two incidents of backache, they were minor and again involved no loss of time from work.

4. On 25 October 1988 she was driving in Coulter Drive towards her home in Page. She halted in a left turning lane at Belconnen Way. She was wearing a seat belt. A four wheel drive vehicle driven by the defendant collided with the rear of her car. She was jolted forward and back. The seat belt restrained her, and she did not hit her head. She alighted in order to speak to the defendant, and immediately felt pain in her neck and her lower back on the right side.

5. Although liability was not formally admitted, counsel for the defendant did not challenge the plaintiff's version of the accident, or submit that the defendant was not negligent. There will therefore be judgment for the plaintiff.

6. She drove home, and then attended her general practitioner, Dr. Wilson. He gave her a certificate for the next day off work. She returned to see him on 31 October, stating that she had tingling in her neck, back, and limbs. He found a full range of spinal movement, but some tightness at the back of the neck and on straight leg raising. He diagnosed soft tissue bruising and referred her for physiotherapy. He also prescribed some medication and gave her more time off work.

7. She began physiotherapy treatment by Mr. Rumore on 1 November 1988. On 28 November she told Dr. Wilson that she had been much improved by that treatment, but that ironing for three hours the previous night had caused a flare up of her neck and loin symptoms. Dr. Wilson reported that during the ensuing months the discomfort in her right side continued. It was relieved by physiotherapy, but tended to return. This pattern is confirmed by the reports from Mr. Rumore.

8. In June 1989 Dr. Wilson ordered X-Rays of her lumbosacral spine, which were reported as being normal. He noted that her pain in the right side continued with varying severity. In February 1990 he referred the plaintiff to Dr. Corry, rehabilitation consultant. His report includes the comment, "She has a previous history of back pain which is difficult to get a good handle on. Her story seems to vary a bit." He noted that her symptoms seemed to recur most frequently at work. His diagnosis was also of soft tissue injury. He suggested muscle strengthening exercises and posture modification.

9. In May 1990 Mr. Smith, a rehabilitation counsellor from Dr. Corry's service, assessed her work place and made recommendations to improve its design. Alterations were made which were of some use.

10. In December 1990 she was involved in another rear end collision while a passenger in her husband's truck. She suffered a stiff neck, but no change to her back condition. She continued to see Dr. Wilson, and because of the persistence of her symptoms he referred her to Dr. Duncan, rheumatologist.

11. Dr. Duncan saw her on 4 March 1991. He found local tenderness on the upper border of the sacroiliac region on the right. He gave her a soft tissue injection, and another was performed by his colleague, Dr. Brook. They gave her only temporary relief. He again referred her for physiotherapy. In his opinion, depending on the history, the nature of her problem could be either degenerative or traumatic in origin. In either case, because it had been so persistent, it was likely to continue and to lead to ongoing discomfort in the area. He later received a more detailed history from Dr. Wilson, and then accepted that her lower back pain was attributable to the subject accident.

12. Since then she has continued to see Dr. Wilson several times each year for review of her left loin pain. He noted that her pain is improved by appropriate seating and is much relieved when she is on holidays and not sitting at work. She continues to receive intermittent physiotherapy treatment from Mr. Rumore. A detailed report from him sets out the extensive treatment that she received up to March 1994. He expected further treatment, in order to deal with acute rather than chronic problems.

13. In September 1994 the plaintiff was examined by Dr. Andrews, neurologist, and Dr. Cairns, orthopaedic surgeon, for the defendant. The defendant did not tender a report by Dr. Andrews. Dr. Cairns, like Dr. Corry, obtained a somewhat vague history of back problems before the accident, and was inclined to the view, expressed in his report, that any injury to her lower back, as distinct from her neck, could be anticipated to be minor, soft tissue, and musculo-ligamentous in nature, from which she could reasonably be expected to recover within a reasonable period of time. He thought that she might have suffered a temporary aggravation of a pre existing back complaint which could reasonably be expected to have resolved within 12 to 18 months.

14. Dr. Cairns gave evidence by telephone, and when given a more accurate history of her condition before the accident, he accepted that her condition was not the result of any pre existing pathology.

15. Dr. Wilson was also called to give evidence and was cross-examined. He saw the pain of which the plaintiff complained as being different from ordinary lower back pain, and interpreted her symptoms as being caused by something that happened in the accident, even though he could not explain the exact mechanism.

16. I find that the plaintiff's condition before the accident has played no part in her present condition. In the subject accident she suffered a moderately severe soft tissue or ligamentous injury which took much longer to resolve than would normally be expected. Although her condition has improved, to the point where she needs occasional treatment to deal with acute episodes of pain, there is an underlying chronic liability which may always be present. She is 50 years of age, with a normal life expectancy.

17. For her pain and suffering I award $30,000, of which all but $8,000 relates to the past.

18. For interest on the past component I award $3,000.

19. In respect of her absences from work she has received payments from Comcare, which has also been responsible for payment of her treatment expenses. The total amount, which must be repaid to Comcare, is $13,282.50.

20. I am not satisfied that she has suffered any measurable loss of future income earning capacity, other than for an occasional day off work, which I have taken into account in assessing general damages.

21. She will, however, be involved in attendances upon her general practitioner, probably several times a year, and occasional visits to the physiotherapist. I note that there were 21 physiotherapy attendances, costing a little over $800, in 1994. The present value of $15 a week for 30 years at 3% is $15,565. I allow $13,000 for future treatment expenses.

22. The total award is therefore made up as follows:
Pain and suffering $30,000.00

Interest 3,000.00
Repayment to Comcare 13,282.50
Future treatment 13,000.00
$59,282.58

23. On reviewing the decision as a global award, I direct the entry of judgment for the plaintiff for $60,000.00.