Sonja O'Neill v Robert Owen Goldsborough [1995] ACTSC 67 (7 July 1995)

SUPREME COURT OF THE ACT

SONJA O'NEILL v. ROBERT OWEN GOLDSBOROUGH
No. SC124 of 1993
Number of pages - 10
Damages

COURT

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

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Whiplash - Pre-existing congenital condition - Kyphoscoliosis - Post traumatic stress reaction - chronic pain syndrome.

HEARING

CANBERRA, 3-4 March 1995
7:7:1995

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: Hill and Rummery

Counsel for the Defendant: Mr M. Cranitch

Instructing Solicitors: MacPhillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT:
1. Enter judgment for the plaintiff in the sum of $417,779.00.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 12 November 1987. Liability is not in issue.

2. The plaintiff is a married woman with two children, who was born in Sydney in August 1961. She completed her schooling in Canberra, and after two years as a shop assistant she obtained employment in the Australian Public Service with the then Department of Health. She married in 1981. In 1986 and 1987 she undertook a course in hypnotherapy and obtained a diploma in hypnosis. In 1987 she had been promoted to clerk class 5 and was in good health.

3. On 12 November 1987 she was driving a Toyota motor car on Drakeford Drive when it was involved in a collision with a Ford Fairmont, the driver of which disobeyed a red light. The front of the Ford collided heavily with the passenger's side of the Toyota. The plaintiff was wearing a seat belt. Her vehicle was turned on its side. She struck her head, but did not lose consciousness. Ambulance officers released her from the vehicle through the front window and took her to Woden Valley Hospital. There was no evidence of fractures or internal injury. She was given a mild sedative and discharged.

4. Her husband was serving in the Navy, and was away in New Zealand. Her mother took her home and stayed with her that night. She suffered headaches, neck pain, and pain in the middle and lower back.

5. On 16 November 1987 she saw her general practitioner, Dr. Wu. She complained to him of pain in the cervical spine, shoulder, thoracic spine, lower lumbar spine, right wrist, and dizziness and headache. A CAT scan of the cervical spine was normal. He treated her with acupuncture and Voltaren. He saw her on four occasions in November 1987. In February 1988 he thought the prognosis was good.

6. Her husband had been notified of a posting to the United States. She did not return to work before taking leave without pay in order to accompany him overseas. She had intended to seek work in America but did not feel well enough to do so immediately. Eventually she obtained a position as Director of Counselling at a women's centre in Connecticut, on a part time basis. Initially she was working about 20 hours a week. After some months her hours increased to about 40 hours a week. She found that she was not able to cope, and reduced her hours to 30 a week. When her parents visited America she was not able to enjoy fully the sightseeing tours that they had together.

7. While in America she consulted a general practitioner, Dr. Scifo. He referred her to Dr. Micalizzi, neurologist. He arranged for an MRI scan of her cervical spine which did not demonstrate any gross abnormalities. In June 1989 he reported to Dr. Scifo. Her principal complaint to him was about her constant headaches. She had resisted taking medication. He did not find any abnormal neurological signs. He suggested alternative non medical treatments, such as acupuncture and chiropractic.

8. She ceased her employment in America at the end of March 1990, and returned to Australia in April, where she resumed work with the Department of Health. She began on 14 May 1990, working full time. She had difficulty with headaches and back pain when sitting.

9. Her general practitioner referred her to Dr. Andrews, neurologist, who saw her first in May 1990. He also found no neurological deficit. There was tenderness over C6 and C7, and restriction of movement to the left at that level. She was also tender over the left sacroiliac joint. He thought that she probably had strained the left sacroiliac joint, and that there was some facet joint strain in the neck. He prescribed Naprosyn and Visken, and referred her for physiotherapy. She ceased taking the medication after a short time, because she distrusts it and she said it was not helping her. She also derived no benefit from the physiotherapy. Dr. Andrews wrote to Dr. Greenman that he expected some time to elapse before she recovered from her neck pain.

10. In July 1990 she began attending Dr. Hart, obstetrician, for her first pregnancy. He confirmed that she was quite incapacitated by low backache, particularly during the second part of the pregnancy, so much so that she was briefly hospitalised on 12 October 1990. He attributed the backache to the motor vehicle accident, being aggravated by the extra weight bearing and postural changes of pregnancy.

11. In August 1990 Dr. Rodgers became her general practitioner. He saw her on a number of occasions over the next few months. She complained of severe headaches and cervical pain. She was avoiding medication especially because of her pregnancy. She was attending exercise classes, receiving physiotherapy and osteopathic treatment. She reduced her hours at work on the advice of Dr. Rodgers.

12. He also sought advice from Dr. Corry, rehabilitation consultant. He saw her in September 1990. Her biggest problem was still the headache. The major problems that he could detect on examination were postural. He thought that she might well have suffered some soft tissue injury in the accident, and there might well have been an element of concussion, but probably most dominant was some post traumatic stress. He arranged for her to have some counselling on pain management but she did not keep the appointment with the psychologist because she did not approve of her methodology, and did not feel comfortable in being a patient of a psychologist. Dr. Corry did not think that he could offer any other specific help.

13. The osteopath was restricted in his ability to help by her pregnancy. She ceased work on 8 January 1991. Her son, Kalan, was born on 6 March 1991. She had intended to return to work 6 months after the birth. She felt unable to do so because of the increased back pain resulting from the activities of looking after the baby. She needed help in her household activities, which was provided largely by her mother.

14. Dr. Rodgers noted that her pain since the pregnancy had been much worse than before. Previously her main concern had been the headaches. Now the back pain had become increasingly more significant. Like Dr. Corry, Dr. Rodgers thought that she had most likely suffered some injury to soft tissue and perhaps some brief concussion. Her continuing pain and headaches, however, were most likely due to post traumatic stress. Her pregnancy and the demands of child care had temporarily exacerbated her pain and disability. He also thought that pain management counselling could help, but noted her desire to continue with the physiotherapist and osteopath, whom she trusted.

15. Dr. Andrews reviewed her on 24 February 1992. She had not yet returned to work. She described low back pain together with symptoms that suggested L5 nerve root involvement. There were also still frequent frontal headaches. Neurological examination was normal. He found tenderness in the right iliac region. There was no restriction of neck movement. He later reported that he was fairly confident that there is no disc pathology in the cervical or lumbar regions. It seemed more probable that she had soft tissue injury and some facet joint strain, which should normally have resolved.

16. In February 1993 she consulted Dr. Bromley, on one occasion only. He noted some restriction of neck movement. There was tenderness over C7. He also diagnosed a significant post traumatic stress reaction and a chronic pain syndrome, which was significantly impairing her ability to function normally.

17. Her solicitors sought an opinion from Dr. White, neurologist, who saw her in mid May 1993. She had just returned to work, but was again fifteen weeks pregnant and noting an increase in her pain intensity. He noted a marked kyphoscoliosis in the thoraco lumbar region. Neurological examination was entirely normal. He reviewed X-Rays. They confirmed the kyphoscoliosis. He thought it unlikely that it was entirely due to the accident, that it had been present before the accident, but had been markedly exacerbated by the trauma. He anticipated continuing and probably increasing trouble in the future. He advised further investigation, though it was appropriate to defer it until after the birth of her child.

18. She attempted to work for three hours a day, five days a week. She could not cope. She changed to three days at three hours.

19. In July 1993 she came under the care of Dr. Kelly as her general practitioner. He also noted the kyphoscoliosis, and had much the same opinion about it as Dr. White. He advised, among other things, an assessment of her work environment. He certified her unfitness for work on a number of occasions.

20. On 30 July 1993 the plaintiff was examined by Dr. Iansek, physician, on behalf of the defendant. Apart from the headache, he described her complaints as being those of muscle pain. Because of the length of time since the injury he thought it most unlikely that any form of therapy would improve her situation to any great degree. Physical therapies might relieve the symptoms. He related the persistence of the complaints to a vicious cycle, in which muscle pain begets muscle contraction and more muscle pain. He also attributed the headache to muscle contraction. He commented that a person's psychological state is also a contributing factor in the maintenance of these complaints.

21. Her second child was born on 30 October 1993. Again she needed home help from her parents and paid assistants.

22. She resumed work on 9 January 1994. She saw Dr. Kelly on 24 January 1994 complaining of severe lumbar pain with numbness in the right and left legs. He certified her unfitness for work for a month, prescribed medication and referred her to Dr. Lithgow, pain management consultant. In February 1994 Dr. Kelly noted muscle spasm over the thoracic and lumbar regions on his clinical examination. He prescribed medication which was anti depressant as well as analgesic, and recommended that she see a psychiatrist because of her depressive reaction. He continued to certify her unfitness for work and sought a further MRI scan, which disclosed nothing of significance. He also made recommendations and consulted with others about a program for her graduated return to work

23. The solicitors for the defendant arranged her examination by Dr. Skapinker, a neurosurgeon. He saw her in September 1994. He reported finding a full, free range of movement of the cervical spine and upper body and limbs. He described the scoliosis as being mild to moderate. Back movements also were full and free. There were no neurological deficits. He reported his opinion that she had recovered fully from any injuries she sustained in the accident. He developed his theory that muscular ligamentous strains of the cervical and lumbar spines are not a chronic or permanent condition and invariably heal in a period of 12 weeks. In his opinion the scoliosis was congenital, and had not been aggravated.

24. The defendant also had her examined by Dr. Goldrick, a consultant physician in Canberra, on 13 September 1994. To him she seemed extremely well. The only abnormal finding on physical examination was what he described as "quite a marked kyphoscoliosis". There were no neurological deficits. Movements of the lumbar spine were full and painless in all directions. There was slight tenderness over L4/5, whilst movements of the cervical spine were apparently restricted to 50% in each direction. He felt that the restriction of movement was deliberate. He could find no organic basis for the plaintiff's complaints of pain in her arms or legs, and doubted the truth of her complaints. He also did not believe that she suffered from such severe headaches as she described. He thought that the congenital kyphoscoliosis could in itself be the cause of a variety of aches and pains in her neck and lower back. He could not relate any of her symptoms to the motor car accident.

25. She eventually got to see Dr. Lithgow in November 1994, but did not proceed with any treatment when it was suggested that she see another psychologist, Mr. Sutton.

26. She again attempted a return to work on 9 January 1995, for 15 hours a week.

27. Her solicitors arranged her examination by Dr. Veness, consultant psychiatrist, on 27 February 1995. They provided him with reports from doctors Andrews, White, Bromley and Kelly. She gave him a history which was consistent with her evidence and what she had told those doctors. Frustration, irritability and crankiness were prominent symptoms, together with some depression, difficulties in concentration and forgetfulness. He performed a physical examination, and found that the muscles of the neck, back and shoulders were tight. He noted that she was very tender over the sacroiliac joints, the lumbosacral spine and the lower neck at the back. He also found a great degree of increased muscle tone with bundles of painful muscles in spasm. He referred to the condition involving the muscles and their points of insertion into bone as fibromyalgia. He expected it to be permanent, and that the plaintiff would have to contend with chronic pain as part of everyday life.

28. Within his own specialty, he diagnosed a reactive depression, caused by the trauma of the accident and the resulting pain, disability, disappointments and losses. She remained fragile. He did not expect her disability to worsen, although further losses or disappointments could trigger off a deterioration. He did not think her capable of full time work. The part time hours that she was working were as much as could be expected. She intended to engage in further education in counselling, and he recommended that she proceed in that direction as a definite therapeutic measure.

29. Meanwhile, on 15 February 1995, Dr. Saboisky, consultant psychiatrist, examined her for the defendant. Reports that were made available to him were from doctors Kelly, White, Bromley, Skapinker and Goldrick. He did not conduct a physical examination. He could not find sufficient evidence to explain her symptoms organically. He did not believe that there was any psychiatric reason to explain the discrepancy. He accepted that she had had an understandable anxiety state, although she did not have symptoms consistent with a full diagnosis of post traumatic stress disorder. He commented that her degree of pain and symptomatology seemed quite out of proportion with how well she presented to him at the interview, and how well she had in fact functioned over time.

30. In evidence the plaintiff said that she ceased work again on 28 or 29 March 1995, on the advice of Dr. Kelly.

31. On 3 April 1995 she was examined on behalf of the defendant by Dr. Joubert, consultant neurologist. On examination she presented to him as being unusually tense and rigid. He did not detect any muscle spasm. He noted the marked kyphoscoliosis. There were no neurological deficits. His impression was that she demonstrated some overreaction, and that the impairment in the range of movement of her neck and back was more apparent than real. Although there did appear to be genuine discomfort, there was also an impression of emotional overlay and some exaggeration of her symptoms. He seems to have relied to some extent upon the reports of doctors White, Skapinker and Goldrick. He thought that the congenital kyphoscoliosis was playing a far greater role in the production of her symptoms than the accident. He agreed that she was not fit for full time work, or for heavy household duties. His prognosis was guarded.

32. The cross examination of the plaintiff was directed mainly at her frequent refusal to take medication or accept suggested treatment such as counselling. I am not persuaded either that her attitude was unreasonable or that her condition would now be significantly better had she invariably followed the various suggestions that were made to her. The Department has made proper attempts to find an arrangement of hours of work that is suitable for her, and she has in my opinion co-operated in that endeavour, taking into account the advice that she received from Dr. Kelly.

33. The plaintiff's mother and husband corroborated her description of discomfort, so far as they observed it, and of her need for their help. Their evidence was not really challenged by counsel for the defendant.

34. Dr. Veness gave oral evidence and was cross-examined. He described the muscle spasm which he had felt with his own hands, and which he said could not be simulated. He stated that the condition of fibromyalgia is well documented in the literature, and is incurable. In his experience, rheumatologists were more likely to detect it than orthopaedic or neurological specialists. He was not aware that the plaintiff had already made an appointment to consult him later this year. With treatment he expected some improvement in her condition with the conclusion of the litigation, supportive and appropriate measures at work, and treatment. He had his doubts, however, whether she would be able to get back to full-time work or anything approaching it before her children were in secondary school.

35. Drs. Andrews, Hart, Rodgers, Corry, Bromley, White and Kelly were not required by the defendant to attend for cross-examination, nor was Dr. Iansek required by the plaintiff.

36. Dr. Goldrick gave evidence by telephone. He had not detected any muscle spasm on his examination. He did not deny that she had received injuries in the accident from which she was still suffering. The point that he made forcefully and repeatedly was that he could find no evidence to support her claim that she was suffering as much pain as she claimed. He knew of the condition called fibromyalgia, that it is a common complaint in people who have had whiplash injuries, that those people can have good days and bad days, and that the condition is usually demonstrable by the fact that they have trigger areas, which is a cardinal feature of the syndrome. Those comments are consistent with the evidence given by Dr. Veness.

37. Dr. Skapinker also gave evidence by telephone. When asked in chief whether fibromyalgia is an entity known to him he responded, "Well, if you want to call it that, chronic musculo-ligamentous strain?" Counsel said, "I think that is the general trend of it, yes?". He said, "That becomes difficult because there's no such thing as a chronic muscular ligamentous strain."

38. That answer set the tone for the rest of his evidence. I think it was disingenuous and misleading. His attempt at a scientific demonstration that muscular ligamentous strain must always heal within six to twelve weeks is not only contrary to my own general knowledge of life and of people, it is contradicted by the evidence in this case from Drs. Veness and Goldrick. If I have misunderstood him because fibromyalgia is different from chronic muscular ligamentous strain, I hope I may be forgiven, but it was he who chose the synonym. The impression that I received from his evidence was that he had crossed the line between expert witness and advocate, and I found his advocacy less than persuasive.

39. Dr. Saboisky was also cross-examined by telephone. Both he and Dr. Veness had examined her only once, and both for medico-legal purposes rather than for treatment. The examination by Dr. Veness seemed to me to be the more thorough and detailed, and I prefer his opinion to that of Dr. Saboisky on this occasion.

40. Lastly Dr. Joubert was cross-examined by telephone. He did find evidence of discomfort and spasm at the para spinal muscles, which gives some additional context to the views of Drs. Goldrick and Skapinker. His initial impression, that her history was related to the car accident, changed to a feeling that it was more in keeping with her congenital kyphoscoliosis, after reading the assessments by Drs. Goldrick and Skapinker in 1994. Dr. Skapinker, however, strongly resisted any suggestion that her symptoms resulted from the kyphoscoliosis. Dr. Goldrick thought that the congenital condition could have predisposed her to symptoms, not that it was causing any.

41. I note also that in May 1990, two and a half years after the accident, Dr. Andrews, neurologist, diagnosed probable facet joint strain in the neck, and expected some time to pass before recovery. Dr. Kelly, whose evidence was not challenged, detected muscle spasm in February 1994, and certified her unfitness for work at various times over a long period of time.

42. In that state of the evidence it is not possible for me to describe the actual mechanism which is causing the plaintiff's continuing pain and disability.

43. I am comfortably satisfied, however, that she is suffering it, and that it was caused by the accident.

44. The accident did not cause the kyphoscoliosis. That congenital condition, however, my have predisposed her to some extent to injury, though I do not think it was a major factor. I reject, for the reasons which follow, the suggestion that she might by now have been suffering back and neck pain because of a deterioration in that condition even if the accident had not happened.

45. There was no evidence of any nerve root disruption. The problems arise in soft or connective tissues. The undoubted fact that such injuries may usually be expected to heal, if not within months, then at least within a couple of years, is not inconsistent with another fact, often encountered in litigation, that in some few people, for one or more of a number of reasons that I am not expert enough to detail, they can persist and be disabling for a very long time. I agree with the comments of Dr. Iansek, and it is significant in this case that Drs. Bromley, Kelly and Veness testify to her emotional reaction, which itself undoubtedly played a significant part in the vicious cycle of muscle contraction leading to pain, and to headaches which led to more muscle contraction and depression, and so on.

46. The plaintiff is not a woman who has seized on the opportunity afforded by a compensable accident to avoid work and still make money. Part of her syndrome is that she wanted to work, co-operated in attempts to get back to work, and was frustrated and further depressed when those attempts did not work.

47. I also reject the suggestion that she has avoided treatment either consciously or unconsciously to maintain her symptoms until this litigation is concluded.

48. However, since a significant part of her present problem is emotional, the conclusion of this litigation will remove at least one cause of her stress, and she may well improve thereafter, especially with the help which she proposes to get from Dr. Veness.

49. The plaintiff is 33, and has a normal life expectancy. This is a case in which it is extremely difficult to foretell what the progress of her condition will be. I do not expect that she will ever be completely free of the effects of the accident, especially since they have persisted for over seven years, but I do think there is a good chance that she will get back to being able to work longer hours than she does at present. Whether she does that in her present occupation or as a counsellor is a matter for her choice.

50. For her pain and suffering I award $40,000, of which $10,000 may be apportioned as relating to the future.

51. Interest on the past component is $4,600.

52. The out of pocket expenses paid by Comcare are $8,779.

53. Although the defendant submitted that not all the past loss of income resulted from the accident, there was no issue about the calculation of what in fact she has lost, as set out in the particulars and the submission of counsel for the plaintiff. That amounted to $93,782 to the date of the hearing, and is continuing at $484 a week. That is an additional $4,425 to date, giving a total of $98,207 for past loss of income.

54. She has received periodical payments from Comcare, and interest is claimed on the difference between her past loss and her net receipts. It would be a needlessly complex exercise to attempt to calculate that interest exactly, but one half of interest in accordance with the practice direction on $30,000 over the whole period since the accident is $16,727. I allow $16,000 for interest on past loss of income.

55. The cost of paid home help in the past is part of the out of pocket expenses. I allow $10,000 for the value of voluntary services provided by the plaintiff's mother.

56. The plaintiff is not working at present. I expect her to be able to get back to part-time work within the next year. Dr. Veness thought it possible that she could be back to full-time work in 10 to 15 years. She might lose time from work occasionally thereafter, and it is not certain that she will ever be capable of full-time work. The present value of $484 a week for 10 years is $218,579. For 15 years it is $305,899. There are the normal contingencies to take into account. In the exercise of what is obviously a discretionary judgment I award $200,000 for future loss of income.

57. I do not think that a continuing expense of $15 a week for home help for the whole of the rest of the plaintiff's life is justified on the evidence. There will, however, obviously be costs associated with treatment, especially by Dr. Veness, and for medications. I allow $15,000 for future expenses.

58. The Fox v Wood component was calculated at $23,730 to the date of hearing. At $160 a week there is an additional $1,463 to be added to bring that figure up to date, giving a total for that component of $25,193.

59. The total award is therefore made up as follows:
Pain and suffering $40,000

Interest 4,600
Out of pocket expenses 8,779
Past loss of income 98,207
Interest 16,000
Future loss of income 200,000
Griffiths v Kerkemeyer 10,000
Future medical expenses 15,000
Fox v Wood 25,193
$417,779

60. I order judgment for the plaintiff for $417,779.00.