Helen Rose Steele v Ross Allan Evans [1995] ACTSC 62 (27 June 1995)

SUPREME COURT OF THE ACT

HELEN ROSE STEELE v ROSS ALLAN EVANS
No. SC897 of 1992
Number of pages - 9
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash - History of back pain - History of psychological problems - Conflicting medical opinion - Cervical disc prolapse - Cervical pain - Lower back pain - Depression - Anxiety - Premature retirement.

HEARING

CANBERRA, 3 April 1995
27:6:1995

Counsel for the Plaintiff: Mr R. Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: Mr A.J.J. Renshaw

Instructing Solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT: 1. Judgment be entered for the Plaintiff in the sum of $374,635.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 27 June 1990. Liability is not in issue.

2. The plaintiff is a married woman born on 17 February 1938. Since 1968 she has worked for the public service, mostly in Immigration, until her retirement in February 1995

3. In April 1976 she came under the care of Dr. Tennant, psychiatrist, for alcohol dependency. Dr. Tennant became aware that she also had a long term problem with distressing and intrusive obsessive thoughts. With the help of AA she gained sobriety, and with counselling from Dr. Tennant was able to gain control over her obsessive thoughts and behaviour. Dr. Tennant commented in her report that she coped extremely well. She became an active member of AA and was a useful referral source for Dr. Tennant when she had patients requiring help in that area. Dr. Tennant continued to see her periodically, at intervals of about a year.

4. She undertook a university degree course, in which she did well, and was eventually promoted from being a secretary to being a journalist. She was promoted to Journalist Grade A. in July 1988.

5. In the clinical notes of her then general practitioner, Dr. McCauley, there are a number of notations that were referred to during the hearing. The first is dated 21 August 1985. So far as I can decipher it, a complaint was recorded that on 15 August she had tripped on her left foot and was suffering pain in the right trapezius and left ankle. On 20 May 1986 there is a note, "Fell on polish 3 days ago". On 26 May 1986 the note reads, "Back injury due to MVA when bumped in back 30.4.86. Still feels unwell from slip on 17.5.86." On 6 July 1987 there is an entry which is mostly indecipherable, but which refers to back pain. There is nothing else relevant up to 22 June 1989.

6. From the end of 1988 Dr. Doumani was her usual general practitioner. On 30 May 1990 he noted a complaint of pain at the base of the neck and mid thoracic pain. An x-ray was ordered of the cervical spine. There is no evidence that it disclosed any abnormality. Dr. Doumani's note adds the entry, "Gets very painful after being at the computer at work." On 5 June 1990 he recorded a complaint of pain in the mid thoracic area and also in the C5/6 area. He prescribed Voltaren.

7. In her evidence in chief she recalled having visited her doctor on some occasions about her neck but attributed any neck or back problems to long hours of work at the computer. She lost no time from work, and said that she did not receive any treatment for her neck.

8. She took pride in her work and enjoyed it. She intended to continue to work. She said in evidence, "I had never envisaged leaving before I retired at 65 or longer I hoped, as they're now working from home. I couldn't imagine not working."

9. On 27 June 1990 she was driving home from work. She stopped at an intersection to give way to traffic coming from her right. A Mitsubishi Van collided heavily with the back of her car. She was shaken up and shocked. She was able to drive to the police station to report the accident, and then home, where she went to bed suffering from a severe headache and sore ribs.

10. On 28 June 1990 she saw Dr. Doumani. She told him that at the time of the accident she was looking to her right and that her head was turned fully because she has a lack of vision in one eye. All movements were restricted by pain. He prescribed Voltaren and physiotherapy. He gave her a certificate for absence from work.

11. She underwent physiotherapy, but it gave her no relief. She continued to see Dr. Doumani who gave her certificates for work. At the end of July the pain was better but still considerable. He certified that she was able to attempt 4 hours of work a day from 8 August. Initially she tried that for 3 days a week and attempted to increase her hours, but she has never been able to return to full time work.

12. Dr. Doumani referred her to Dr. Chandran, who saw her on 5 April 1991. He ordered an MRI scan, which showed a bulging disc at the C5/6 level. He discussed surgery with her. She took advice from her general practitioner and others, and decided to keep to conservative treatment.

13. On 11 June 1991 she was examined by Dr. Andrews, consultant neurologist. His report does not detail his conclusions on that occasion. He was to see her again in August 1993.

14. She became stressed and anxious. She consulted Dr. Tennant on 27 June 1991. She wanted to keep her psychiatric condition confidential, and did not want to admit to herself that she was depressed. Dr. Tennant counselled her and persuaded her to accept treatment. She attempted to support the plaintiff in her attempts to return to full time work. She reported, however, that the plaintiff's condition continued to deteriorate. Although her depressive symptoms lessened, the medication caused some slowing down and the physical symptoms continued. Her condition would improve dramatically when she was absent from work and relapse again when she returned to work.

15. Dr. Doumani also referred her to Dr. Yeo in September 1991. He is an eminent consultant in rehabilitation medicine. He reported to Dr. Doumani that her recurrent neck pain did not appear to be associated with any significant continuing compression of the spinal cord or nerve roots. He thought that it was muscular, probably arising from scar tissue within damaged muscle. He advised mobilising exercises to develop elasticity in the muscle. He advised against traction or surgery. He also sought advice from his colleague, Dr. Sears, neurosurgeon.

16. Dr. Sears examined her on 27 November 1991. She had begun to notice pain in her lower back as well as the continuing pain in the cervical region. He noted that the range of neck movement was reduced by 10% to 15% in all directions and he detected a lot of palpable muscle spasm and tightness in the muscles associated with the neck. He thought that the C5/6 disc was playing a significant role in the generation of her symptoms but that fibrosis within the joint capsules and muscles of her neck could also be playing a significant role in her pain.

17. Dr. Doumani also sought advice from a Canberra specialist in rehabilitation, Dr. Corry, who saw her first on 27 April 1992. She had ceased work in mid 1991. He concluded that she had suffered a significant whiplash trauma to the cervical spine in the motor vehicle accident. He noted the possibility of damage to the C5/6 disc, but he also did not believe that there was any specific neurological disturbance due to that damage. He also advised against surgery. He also noted her severe lack of confidence about managing her pain or getting back to productive work.

18. She saw Dr. Chandran again in June 1992. She told him about the advice she had received from the other specialists. He reported to the Commonwealth Medical Officer that her condition had stabilised and that she was not then in need of any surgical intervention. He thought it unlikely that surgery would be needed in the future unless her condition deteriorated, and he thought spontaneous deterioration was unlikely. In his opinion she was fit to return to work on a part time basis.

19. Dr. Corry reviewed her progress on a few occasions. Her medications were discussed and slightly modified, and she had some improvement in her symptoms with massage but not with other forms of therapy. He recommended that she had improved sufficiently to return to work for 16 hours a week, commencing on 13 August 1992. This return to work was in very selected duties which were organised for her, and in a workplace which was ergonomically satisfactory. When he saw her on 25 August 1992 she seemed to be coping with that degree of work without increase in symptoms.

20. In her evidence she said that, on that return to work, as much as she tried, she could not do the work that she wanted to do. Mr. Magill, who was assisting in her rehabilitation program, reported that until 16 April 1993 she was successfully maintaining her return to work program on the basis of 5 hours a day for 4 days a week. She then reported exacerbation of her neck symptoms, and was certified unfit for work, initially until 30 April 1993. Until ceasing work she had advised that she was managing her duties, and was hoping to increase her hours of work.

21. Dr. Andrews examined her again on 12 August 1993. He told her that in his opinion she would be a good candidate for surgery on the C5/6 disc. Without surgery he agreed that she was not fit to return to work. He reported to the Commonwealth Medical Officer that with surgery there was at least 90% chance that she would be fit to resume work again.

22. Dr. Sears examined her again on 18 August 1993. Her range of motion had decreased by about 40%. She continued to display marked spasm in the trapezii. He recommended that she work on her neck posture and undergo massage, and take Valium to try to relieve the muscle spasm. He told her that if these simple measures did not help, the surgical option should be investigated. It would be necessary to investigate further with a discogram before deciding, and he discussed with her the implications of that. He reported that if the discogram confirmed that the disc was the source of her pain, there was about a 60% chance of getting significant improvement of her neck symptoms with fusion. He added that, unfortunately, even with a positive discogram not all patients get complete or even any relief with surgery. This may relate to the development of chronic fibrosis within the surrounding joints and soft tissues.

23. On 9 October 1993 she was examined by a Canberra neurosurgeon, Dr. Newcombe. In the absence of definite evidence of nerve root compression he thought that continuing conservative care was appropriate. If disc herniation became more marked and accompanied by pain down the left arm, surgery might be appropriate. He noted the history of some mild neck pain before the accident, and considered the possibility of preexisting degeneration of the C5/6 disc. Even if there were such a pre-existing condition, on the balance of probabilities he did not think that she would have suffered similar disturbance if the accident had not occurred.

24. It is to my mind not surprising that, in the light of all the advice she has been given, she has not chosen to undergo surgery.

25. On 19 November 1993 she was examined by Dr. Nield, Surgeon, for the defendant. On examination he found little physically wrong with her. I find that surprising in the light of the findings by Dr. Sears in August. He thought that she had merely aggravated underlying degenerative changes in her cervical spine, and appeared to have a gross emotional overlay. He reported that she was physically fit for any activity she could undertake prior to her accident and within the limits of her obesity. Dr. Nield does not appear to have had the benefit of the reports by the doctors who have known her best, especially Dr. Tennant, and although he was not required to attend for cross-examination, I am unable to place any weight on his opinion.

26. On 23 December 1993, her rehabilitation case manager, Susan West, reported to the manager of Comcare rehabilitation services. She set out in detail the history of the attempts at rehabilitation. Reports from Dr. Tennant and the Commonwealth Medical Officer indicated that the plaintiff should be retired on the grounds of invalidity.

27. The defendant also arranged for the plaintiff to be examined by Dr. Tym, consultant psychiatrist, who interviewed her on 20 April 1994. In his clinical judgment there was no evidence of any significant existing psychiatric illness or disorder. He interpreted what she told him as providing considerable evidence that her histrionic traits had led her voluntarily to exaggerate grossly every aspect of her physical and psychological discomfort all the time from the subject accident. He said that in the interview she readily acknowledged to him that there was clinical evidence of only very minimal residual physical sequelae and that her mental state was devoid of any abnormal mental phenomena. He decided that if she said that she could not work as a result of any physical or psychological sequelae of the accident, she was malingering.

28. Naturally her solicitors provided Dr. Tennant with a copy of Dr. Tym's report. In her report dated 22 June 1994 she set out the history of her involvement with the plaintiff. She pointed out that she had been the plaintiff's treating doctor for 18 years. At no time had the plaintiff tried to exaggerate her problems. In fact she had very much tried to minimise them, and to conceal them from her lawyers. She dealt in some detail with Dr. Tym's report. I find her comments apposite. Like her I can not see on the limited evidence that he had before him how Dr. Tym could so discount Dr. Tennant's knowledge of her patient and her clinical skills and expertise. I accept the conclusions of Dr. Tennant.

29. Comcare arranged her examination on 30 May 1994 by Dr. Stevenson, consultant physician. I set out his summary and assessment in full:
"Mrs Steele is a 56-year-old ex-journalist for the Department of

Immigration, suffering from the following conditions:
1. Cervical disc prolapse C5/6.
2. Degenerative disc disease of the thoraco-lumbar spine.
3. Obsessive compulsive disorder.
4. Depression.
5. Schaphiolunate degeneration - left wrist.
6. Left sided brachial neuritis.
It appears on clinical grounds, as well as radiological grounds, on
review of the early spinal views that Mrs Steele suffered from some
degree of degenerative disease of the thoraco-lumbar spine prior to
the incident of 1990.
The condition appears to have been symptomatic enough to have
required treatment of physiotherapy, but not sufficiently as to
require absence from work.
There appears to have been an acute deterioration with marked
increase in cervical pain following the motor vehicle accident, on
return to work.

While it is possible that this represented a whiplash-type injury
with musculo-ligamentous strain, and a background of degenerative
disc disease, it is also possible that the cervical disc prolapse of
the C5/6 level was precipitated by this incident.
It is not possible to be certain at this interval of time which of
the above two scenarios is the correct one but there would be a
reasonable argument in favour of the motor vehicle accident having
been a significant cause of the cervical disc protrusion.
It would appear that the cervical disc protrusion was the major
cause of her symptoms and her incapacity.
It is also reasonable to say that her depression and nervous upset
was to a major degree determined by the development of acute
cervical pain, which has been very difficult to treat and which
particularly caused her problems bent over a keyboard at work.
The obsessive compulsive disorder per se, appears to have been a
well-encapsulated one and in itself did not interfere with her work.
I note in passing that many mild obsessives make good workers,
having a sort of channelled energy and attention to detail into
their jobs which can be quite productive.
I do not know of any evidence that there was predominantly a
breakdown of the obsessive checking which has disturbed her. The
evidence before me suggests rather the contrary.
The abnormality and degeneration of the schaphiolunate evident in
the left wrist appears to be a constitutional and degenerative
condition for which I see no relationship to her work. The clinical
findings are quite definite, and the pain in the wrist appears quite
separate from any possible brachial neuritis due to irritation of
the nerve root as a consequence of the disc derangement.
The main symptoms of neck pain and its sequelae are probably then
still related to travel from work.
The condition is likely to be a long lasting one and for practical
purposes could be regarded as permanent. The only substantial
prospect for improvement would come with cervical fusion. A general
estimate would be that this would have about a 70% chance of
substantially improving her symptoms, and there would appear quite a
reasonable procedure. However, even a successful cervical fusion
would leave her with a stiff neck which is unlikely to be totally
pain-free.

I do not consider Mrs Steele would be realistically capable of
undertaking a rehabilitation program at present. I regard her as
substantially incapacitated from employment of any realistic
duration, and I find her major incapacitating condition to be the
C5/6 cervical disc prolapse, which is probably although not
certainly related to her motor vehicle accident.
It is unlikely that physiotherapy would be of great help at this
interval in time. She may benefit from pain management techniques,
otherwise she is going to need to take pain killers,
anti-inflammatory agents and anti-depressants for the foreseeable
future.
If there is further deterioration of the condition she is very
likely to need cervical fusion."

30. On 31 March 1993 Dr. Doumani had recorded that she complained of falling onto steps, fell on to her left hand and arm, and felt sore down the left hand side. The wrist was x-rayed, and some indecipherable comments were made about her neck and thoracic spine. She saw him about her wrist and neck on two occasions in April. I am not persuaded that this incident played any significant part in the history of the complaints that are the subject of this action. Although Dr. Stevenson refers to problems with her left wrist, the evidence simply does not support a suggestion that it played any significant part in the termination of her employment.

31. Dr. Nield had another consultation on 19 August 1994, and provided a report which was to the same effect as his previous report. I give the same weight to his later opinion as I do to that earlier report.

32. The plaintiff was retired from the public service on 10 February 1995. She now lives in a warmer climate. She still gets a lot of neck pain. It is relieved by massage. Sometimes she needs to wear a collar. She is restricted in her activities around the house. She employs assistance in the house once a fortnight. The medication prescribed by Dr. Tennant helps her psychiatric condition, and to some extent her neck pain. She will need to take that kind of medication for the rest of her life. She is now 57, and has a normal statistical life expectancy.

33. There was nothing in the plaintiff's demeanour or in her cross-examination that led me to doubt her veracity. I am not persuaded that she has exaggerated her claim or that she was deliberately selective in answers that she gave to various doctors.

34. None of the doctors were required to attend for cross-examination.

35. I find that the assessment by Dr. Stevenson best expresses my own conclusions on the whole of the evidence, with the addition that I agree with Dr. Newcombe that any preexisting condition of her cervical spine would not have been likely to cause her to leave work before normal retiring age. She might, in my opinion, at the most, have needed an occasional day off work for discomfort caused by long hours at a computer.

36. I am also satisfied that her psychiatric condition was under control before the accident, and was markedly exacerbated by it.

37. There must also be taken into account, however, that some other traumatic incident might have triggered off an exacerbation of either condition, leading to a slightly greater discount than the conventional one for the future. In view of the short period involved, however, that additional discount must be small.

38. For her pain and suffering I award $45,000, of which $10,000 relates to the future. Interest on the past component is $3,500.

39. The medical and travel expenses paid by Comcare were $28,009. Those paid by the plaintiff total $126. I do not include the account for $330 for a medico-legal report of Dr. Sears, as it should form part of the claim for costs. The total for out of pocket expenses is therefore $28,135.

40. The past loss of earnings as set out in the particulars was $86,509 to 30 June 1994. That calculation was based on the figures supplied by the department, and was not contested. Bringing that amount up to date at a rate of $620 net a week gives an additional $31,885. The total for past loss of income is therefore $118,394. The period involved is 5 years and I think some slight discount is called for, for the reasons set out earlier. I allow $115,000 for past loss of earnings.

41. She received Comcare payments up to the date of her retirement but the net amount fell short of her total loss by about $',000. However, that loss was not spread evenly over the whole period, because of her attempts to return to work, and the payment of full salary for a substantial early part of the period. There is also the period since retirement to be taken into account.

42. Interest on the whole sum from the date of the accident, calculated in accordance with the practice direction, is $19,261. From the date suggested by counsel for the plaintiff, namely March 1993, it is $6,833. I award a lump sum in lieu of interest of $3,000.

43. The present value of $620 a week for 7 years at 3% is $204,505. Taking into account the relative shortness of the period, and the small additional discounting factors already discussed, I award $160,000 for future loss of income.

44. The evidence does not permit an attempt at calculating the value of the services that she has needed at home as a result of her disabilities. I do not accept the submission that she should have tried harder to persevere with exercise so that she would be better able to do things herself. Nor do I think, on the other hand, that the employment of household help was entirely caused by her disabilities. The amount claimed in the particulars could not even be approached, on the evidence. Yet it is clear from the findings that I have made that she would have needed, and will continue to need, some assistance.

45. As a matter of discretionary judgment I award $10,000 for that item.

46. It is also clear that she will continue to incur expense for continuing treatment and medication. There is also the possibility, though it is only a slight one, that she may need to come to operation on the cervical spine. Overall, I think that an award of $10,000 for future expenses if fair as between the parties.

47. The total amount is therefore made up as follows:

Pain and suffering $45,000
Interest 3,500
Out of pocket expenses 28,135
Past loss of earnings 115,000
Interest 3,000
Future loss of income 160,000
Griffiths v Kerkemeyer 10,000
Future medical expenses 10,000
374,635

48. I direct the entry of judgment for the plaintiff in the sum of $374,635.00.