Peter John Neill v Gary Tracey Lee Dunn and Anor [1995] ACTSC 88 (4 August 1995)

SUPREME COURT OF THE ACT

PETER JOHN NEILL v GARY TRACEY LEE DUNN AND ANOR
No. SC 96 of 1993
Number of pages - 8
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal injury - Motor Cycle Accident - Contributory Negligence - Cervical spine injury - Chest injury - Previous injuries - Conflicting expert opinion - No issue of principle.

HEARING

CANBERRA, 26 and 28 June 1995
4:8:1995

Counsel for the Plaintiff Mr C. McKeown

Instructing Solicitor Joseph Tallarita

Counsel for the Defendant Mr B. Hull

Instructing Solicitors Crossin Barker Gosling

ORDER

Judgment be entered for the plaintiff for $37,500.00.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 26 October 1987. Liability is no longer in issue, as the Magistrates Court has already found, in an action over damage to property, that the defendant was negligent, and that the plaintiff was partly at fault, and should be responsible for 25% of his damage.

2. The plaintiff was born on 15 July 1958. He is married with 2 children, and is a public servant employed in the Australian Taxation Office.

3. Before the subject accident, the plaintiff had suffered some injuries in a number of different incidents. Those of which he gave details in his evidence in chief were as follows.

4. In 1980 he injured his left knee in a motor vehicle accident, which has left him with occasional stiffness in the left knee. There was another accident in 1980, in which he said he suffered no injury.

5. In 1981 he came off a motor cycle, and suffered bruises and abrasions down his right side and arms. He claims to have had a complete recovery from them.

6. In 1987 he sustained a fracture to the left ankle while playing Australian Rules football. He still suffers from slight swelling and slight loss of movement in that ankle.

7. He claimed that apart from the swelling and stiffness in his left knee and left ankle he had no disabilities before the subject accident.

8. During his cross-examination he conceded that there may well have been other incidents, including one in respect of which he settled a claim for damages in the sum of $9000. In that action he gave particulars of his disabilities as being pain and tenderness in the neck, shoulders, right elbow, right hip, left ankle, left collarbone, and limitation of neck movement. However I accept his evidence that up to the time of this accident he was still able to engage in active sport, such as golf, squash and cricket. I do not think that any of those prior incidents made any appreciable difference to the injuries that he suffered in it.

9. On 26 October 1987 he was riding a motor cycle on Yamba Drive, approaching the entrance to Woden Valley Hospital, when the defendant's vehicle changed lanes suddenly in front of him. He braked and skidded, but collided with the car. He was thrown over the handlebars and landed on his head on the road. He was wearing a safety helmet, which was cracked by the impact. He did not lose consciousness, but felt severe pain in the chest.

10. He was taken by ambulance to the nearby hospital where X-Rays were taken, which disclosed no fractures. He was discharged after four hours observation, and was taken home.

11. He did not go to work for four days.

12. On 29 October 1987 he consulted Dr. Madden, his general practitioner, who noted complaints of pain in the neck, back, right shoulder and right side of the chest. Dr. Madden prescribed Panadeine Forte for pain. On 9 November 1987 he returned to see Dr. Madden because of persistent pain in the right side of his chest. On examination his lungs were clear but there was generalised muscular tenderness.

13. His evidence was that initially it was the pain in the chest that worried him most. When that began to subside he noticed that his neck was stiff. He started to get a tingling pain in the right arm, extending to the little finger of the fight hand. Over time the discomfort extended to the left arm as well. However, he did not find it necessary to consult a doctor until, on 27 June 1988, he saw Dr. Roantree.

14. His complaints to Dr. Roantree were of right neck and shoulder pain, which he said had been present since the accident. There was a full range of movement of the cervical spine and fight shoulder, but pain in the lower thorax level of the back when rotating to the left. Dr. Roantree diagnosed cervical sprain and associated brachialgia, and advised physiotherapy. On review on 19 August and 19 September 1988 some beneficial effects of the physiotherapy were noted. The plaintiff told Dr Roantree that he did not continue with the treatment because of the expense.

15. The report from the physiotherapist showed that on palpation the right C4/5 facet joint was stiff and painful. Treatment consisted of manipulation, traction, mobilisation and exercises. The plaintiff improved well over 6 visits. She said that he was discharged from the clinic on 7 September 1988, and had not returned for further treatment. I do not think that her choice of words should cause me to find the plaintiff guilty of any lack of frankness in claiming that he withdrew from treatment because of the expense. She expected that if he continued his exercises and was careful with his posture his symptoms would be kept under control. She also expected that his symptoms would be aggravated by prolonged heavy physical work or prolonged susceptible postures.

16. His solicitors referred him for a report from Dr. Keiller, who saw him on 5 October 1988. The history of his condition before the accident that Dr. Keiller obtained from him was not very detailed, and in at least one respect was inaccurate. He denied any prior neck problems. Of course, Dr. Keiller was not armed with documentation and prepared for cross-examination of the plaintiff, as was counsel for the defendant. I do not infer that the plaintiff was being deliberately misleading. I simply think that he is not a particularly good historian.

17. His main complaint to Dr. Keiller was of pain in the region of the right shoulder and some aching down the right arm into the little finger. Dr. Keiller had to question him further to elicit the information that his neck had been stiff and sore after the accident. On examination there was no limitation of movement of the neck. There was no undue tenderness in the cervical area. There was some discomfort within the right shoulder joint. In Dr. Keiller's opinion, the plaintiff had sustained soft tissue injuries, spraining both his neck and right shoulder. He expected his symptoms, which he described as minor, to resolve completely over the next six to twelve months.

18. His solicitors next sent him to Dr. Morris, orthopaedic surgeon, for an opinion. Dr. Morris saw him on 2 April 1990. The complaints were of ongoing pain below the right shoulder, and an occasional cracking sensation in the neck. Examination was unremarkable. Dr. Morris's opinion was that he had suffered a strain to the neck, from which he continued to suffer discomfort, and which had involved for a considerable time intermittent fight ulnar nerve irritation. That had subsided, and Dr. Morris also expected his symptoms gradually to improve.

19. On 7 August 1990 he was examined by Dr. Newcombe, neurological surgeon, again at the request of his solicitors. Dr. Newcombe reported crepitus in the neck on turning the head to the left. There was restriction of lateral flexion of the neck to 30 degrees on each side. The clinical picture of the neck and arm symptoms suggested to Dr. Newcombe that an intervertebral disc protrusion in the neck had been caused by the accident.

20. On 10 August 1990 he reported to Dr. Roantree a deterioration of his right shoulder and arm pain, with spasms of right shoulder pain on occasions. Dr. Roantree arranged a CT scan, which he reported revealed a minor disc bulge at C5/6.

21. An MRI scan in June 1991 demonstrated posterior bulging of the C5/6 disc. However, the signal intensity of the disc remained normal. Dr. Newcombe saw the plaintiff on 19 July 1991. He recommended an operation to decompress the nerve root sheath at C6. He expected the operation to relieve the pain in the arm and most of the neck pain. Without the operation he expected that the plaintiff's condition would remain unchanged.

22. On 30 September 1991 he told Dr. Roantree that his left arm had also been involved over the past six months, and that he was suffering evening headaches. An MRI scan of the dorsal spine revealed no abnormality.

23. On 9 October 1991 he was examined by Dr. Hudson, neurosurgeon, at the request of the defendant. He found a full range of movement of the cervical spine. There was some tenderness, but no muscle spasm. Dr. Hudson examined the MRI scan of the neck, and agreed with the report. In his opinion there was no evidence of any neurological irritation. The bulge at C5/6 did not, in his view, cause any pressure on the nerve root, and did not explain the symptoms. He advised against surgery. He thought that the continuing complaints were functional.

24. During the remainder of that year he saw Dr. Roantree from time to time for neck stiffness and headaches. He was twice absent from work for 2 days, although on sick leave for which he received full pay.

25. In April 1992 he reported continuing neck pain radiating to both shoulders, so Dr. Roantree referred him again to Dr. Newcombe, who adhered to his view that surgery was indicated. He reported that, on the balance of probabilities, if the plaintiff did not have the surgery he would be unlikely to work beyond the age of 50. Even with surgery he thought he would not work beyond 60. He also reported his opinion that the C5/6 disc protrusion was caused by the subject accident.

26. The plaintiff was concerned about the advice to undergo an operation. Dr. Newcombe was not able to guarantee its success. Dr. Roantree asked for a second opinion from Dr. Besser, neurosurgeon at the Royal Prince Alfred Hospital. He thought that there was no evidence of nerve compression, and advised that unless an MRI scan showed some change, treatment should be conservative.

27. The defendant arranged for his examination by Dr. Stubbs, orthopaedic surgeon, on 4 August 1993. He thought it probable that the plaintiff had some mild intervertebral disc symptoms.

28. There was no nerve root involvement. He was not convinced, on the history that he was given, that the symptoms, such as they were, were caused by the accident in 1987. Nor did he think that the problem was one that was likely to cause serious problems in the future. In a later report Dr. Stubbs thought that the opinion expressed by Dr. Newcombe, that without surgery the plaintiff would be unlikely to work beyond 50, was unjustifiably pessimistic.

29. He was also examined for the defendant by Dr. Chandran, neurosurgeon, on 16 December 1993. The history indicated to him that the C5/6 disc had been damaged in the accident. Symptoms might be improved by operation, but surgery was not really called for unless the plaintiffs pain deteriorated. He could not exclude further degeneration of the disc, due to the accident. In a later report he also said that he did not think that the plaintiffs working life would be restricted beyond the age of 50 due to the injury that he had suffered. He did not think that the interval between treatment in September 1988 and August 1990 was necessarily inconsistent with the continuation of the injury.

30. Dr. Hudson re-examined him on 3 August 1994. He found no abnormalities at all. On clinical grounds alone he thought that the plaintiff had a minor disability, which would explain some neck pain and right arm pain, but basically there was a functional overlay which appeared to be playing a major role. He saw no reason why the condition should deteriorate to make any difference up to the age of 50. Nevertheless he thought an up to date MRI scan should be performed.

31. Dr. Newcombe re-examined him on 13 April 1995, but his opinion remained unchanged.

32. Dr. Newcombe was called to give evidence and was cross-examined. He was given a great deal of additional information by counsel for the defendant. Although he conceded that a number of the incidents that preceded the subject accident might have caused the injury, he adhered to his view that the experience of coming off a motorcycle at 80 kilometres an hour and landing on his helmet was the more likely cause of the neck injury. He also thought that it was more likely than not that the plaintiffs pain would increase to the stage where he would decide to undergo surgery.

33. Dr. Keiller was also cross-examined. He conceded that the disc bulge at C5/6 could have been caused by an incident that occurred before the motor vehicle accident in 1987, and that could account for continuing symptoms, regardless of the accident.

34. Dr. Morris was next cross-examined. He had examined the plaintiff only once. He agreed that the plaintiff had suffered a series of musculoskeletal injuries which could have had a cumulative effect, and which could have led to the neck problems even without the subject accident. However, given the description of the accident, if that were so it had probably aggravated any previous neck problems as well as causing the injuries to his chest and shoulder. Given the substantial period of time before the accident, during which there had been no complaints of neck pain, if there had been any pre-existing damage, it was the accident which made it symptomatic.

35. Dr. Roantree was cross-examined. He also conceded that the disc bulge at C5/6 could have preceded the accident, and that the history was possibly consistent with a neck that had been damaged earlier, and quite irrespective of the accident.

36. Dr. Hudson gave evidence by telephone. He also was given a great deal of additional information. He said that it was not possible to attribute the bulge at C5/6 to the accident. He thought that the minor symptoms of which complaint was made to him could have been caused by the previous incidents. He did not have radiography which was sufficiently recent to make a firm prognosis, but he thought it most likely that the plaintiff would be able to continue in his sedentary clerical work until age 65.

37. Dr. Chandran was not available for cross-examination, through no fault of either party.

38. Dr. Stubbs gave evidence. He was also given the additional history. He also agreed that the previous injuries could have been associated with the plaintiff's symptoms, and that if the accident exacerbated those pre-existing injuries, the effect of it could have been expended by late 1987. The need to consult a doctor later in 1988 could have been due to a flare up in the underlying condition. He conceded that if the plaintiff had been symptom free for at least three years before the accident, and then complained of neck pain after it, it was more likely than not that the symptoms were the result of the accident. He thought that the most likely prognosis was that the plaintiff's condition would not change much over time. He would have some restriction of movement and increased pain from time to time, and at other times would be almost symptom free.

39. I do not think it is necessary to analyse the doctors' reports and evidence in detail. Of course it is possible that incidents which preceded the accident might have caused the disc bulge at C4/5, or that it might have been the result of normal degenerative processes. But there is simply no evidence that persuades me that the condition of his neck was such that he would have suffered any symptoms at all in it if the accident had not happened.

40. I accept his evidence that he was not troubled by it in the years before the accident. Ms lower limb injuries prevented him from playing football as he had before, but he was continuing with vigorous sporting activities.

41. I do not need, either, to fix upon the precise anatomical mechanism by which it happened, but I am satisfied that the accident caused some kind of sprain, to use a layman's term, in the cervical region, as well as the chest injury and miscellaneous abrasions.

42. The injury was not one which involved damage to the spinal cord or nerve root irritation, but it has persisted, and after this lapse of time I also think it probable that it will not improve in the future, but may get worse.

43. It is a possibility, but no more than that, that the pain may get so bad that he will undergo surgery. I think that it is highly unlikely.

44. I am not persuaded that, whether he has surgery or not, his working life will be shortened, and to that extent I decline to accept Dr Newcombe's opinion. I think it is comprehensively outweighed by the other expert evidence on that point.

45. He has already suffered for 8 years. He is only 37. He will continue to suffer for the rest of his life. The injuries are not crippling, but they are significant to him.

46. For his pain and suffering I award $40,000, of which about $15,000 relates to the future. I award $4,000 for interest on the past component.

47. According to Exhibit B, as I understand it, the total net wage loss in 1987 was $127.38. The plaintiff is not entitled to recover in respect of sick pay used. No salary was lost as a result of the absences in 1991 or 1994. The total wage loss is therefore $127.38. Interest on that sum, in accordance with the Practice Direction, is $143.

48. The evidence is not clear about the out of pocket expenses, but the sum of $3,361 is claimed in the particulars, and I understood that there was no dispute about them. If I am mistaken about that I grant liberty to either party to apply, on reasonable notice, to amend the judgment under the slip rule. Half the interest on that amount in accordance with the Practice Direction is $1,898. I allow $2,000 for interest on the out of pocket expenses.

49. There is no award for future economic loss.

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

Interest 4,000
Wage loss 127
Interest 143
Out of pocket expenses 3,361
Interest 2,000
$49,631

51. As a global sum I think $50,000 is a proper award. That sum, reduced by 25% for contributory negligence, is $37,500.

52. I direct the entry ofjudgment for the plaintiff for $37,500.00.