Rita Miletic v Capital Territory Health Commission [1996] ACTSC 22 (4 April 1996)

SUPREME COURT OF THE ACT

RITA MILETIC v. CAPITAL TERRITORY HEALTH COMMISSION
No. SC790 of 1984
Number of pages - 9
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Damages - whether the plaintiff's injury was causative of the current symptoms - whether the plaintiff's complaints of pain and disability were functional - degree of functional overlay - whether the plaintiff showed signs of exaggeration - scope of medical expert opinion evidence - carpal tunnel syndrome - thoracic outlet syndrome.

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

HEARING

CANBERRA, 12 February 1996
4:4:1996

Counsel for the Plaintiff: Mr B Salmon, QC with Mr B Hull

Instructing solicitors: Nelson and Co

Counsel for the Defendant: Mr G Parker

Instructing solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $637,960.53.

DECISION

HIGGINS J This matter was first heard on 4 May 1992. I found a verdict for the defendant on 12 June 1992. An appeal to the Full Court of the Federal Court was dismissed on 22 September 1993. However, pursuant to a grant of special leave on 12 October 1994, the High Court heard a further appeal. That appeal was upheld on 16 August 1995. As a result, this matter came before me on 12 February 1996 for assessment of damages only. The accident occurred on 18 September 1978.

2. The accident occurred when the plaintiff fell on the floor whilst shifting a bed in the course of cleaning a room at the nurses' quarters at Royal Canberra Hospital.

3. The plaintiff's evidence was that upon falling down, she fell onto her right hand. She felt severe pain in it all the way up to her shoulder. It was her thumb which hit the floor first. She had an injection in the thumb and physiotherapy.

4. It became apparent that the continuing pain and disability was not simply related to the hyper-extension of the thumb.

5. There was an operation performed by Dr Brown on 4 October 1979 to correct a diagnosed carpal tunnel syndrome.

6. In January 1980, Dr Brown certified that the plaintiff was fit for light duties. She went back for one day but could not continue.

7. On 23 June 1980, Dr Newcombe concluded that the plaintiff had, in her fall, aggravated,

... a congenital anomaly, probably a cervical tenderness band
compressing her brachial plexus and subclavian artery.

8. An operation followed on 15 August 1980. Dr Newcombe excised the right cervical band and a rudimentary rib. Nevertheless, symptoms of right shoulder pain and colour changes in the hands persisted.

9. In 1981 the plaintiff moved to Sydney. She there consulted Dr Jakovac. Dr Newcombe had already noted that the area of the plaintiff's complaints did not conform with the organic causes as he had diagnosed them to be.

10. Pain and disability involving the right side of the plaintiff's upper body continued. She was referred to Dr Gatenby for psychiatric evaluation. He did not find any significant psychiatric disorder but considered that there was "a functional disturbance of her right hand and arm".

11. 'Functional' or not, the pain persisted, at times spreading down the plaintiff's spine into the left leg below the knee into the heel. She got special shoes to ease the pain. She had, more obviously, a special pillow to ease the neck pain.

12. Sometimes the headaches she gets were so severe that she vomited.

13. The plaintiff's husband undertook the heavier household tasks as well as those requiring full use of both arms. The plaintiff drives a car but usually uses only the left hand and arm.

14. The plaintiff's pain and disability has proved intractable despite physiotherapy and other forms of treatment.

15. A CT scan in June 1994 revealed a C5/6 disc herniation.

16. From her perception of it, the plaintiff is seriously partially disabled. She is in constant pain and sees no likelihood of other than temporary relief.

17. In 1993, she separated from her husband and returned to Canberra. She boards with friends. The pain and disability has continued but her level of activity is now much less. She now feels that her right side is physically shrinking. Indeed, she demonstrated in the witness box that her right arm is now shorter than the left. Whether or not that is objectively accurate, it is certainly her belief.

18. She had wanted to work till she qualified for a pension. Now she has no prospect for resuming employment.

19. I need not refer to the other lay witnesses. They supported the general impression created by the plaintiff's account of her life since the accident. That picture was not seriously challenged.

20. The opinions of those medical practitioners who provided reports on behalf of the plaintiff may be summarised as follows.

21. Dr Jakovac, general practitioner, first saw the plaintiff on 29 September 1981. She complained of pain and numbness in the right arm, shoulder, right side of the neck, head, throbbing of the right ear, blurred right eye vision. Her right arm was almost always purple. Her right arm was weak and the muscles were wasting. She was depressed. There was an x-ray showing disc narrowing at the C4/5 level.

22. In Dr Jakovac's opinion those symptoms and findings were consistent with them having arisen from the fall in 1978. The plaintiff was unfit for work. In June 1985, the doctor noted right arm muscle wasting. There was x-ray evidence of arthritic changes in the right shoulder and hand. These were attributable to the fall.

23. In May 1986, Dr Jakovac noted that the symptoms were worsening. She expected that to continue. She then, and subsequently, referred to the shortening the plaintiff perceived. She found a measurable difference between the right and left limbs. There was continued muscle wastage. These symptoms were considered to be a consequence of the fall.

24. Since her return to Canberra, the plaintiff has consulted Dr Milosevic, a general practitioner. He recounted a given history of disabilities consistent with those given to Dr Jakovac. He noted the CT scan not only had shown herniation at C5/6, but also disc bulging L4/5, L3/4 and L5/S1.

25. Dr Milosevic considered the symptoms complained were related to the fall but, as at 15 November 1995, considered them to be stable.

26. There was also specialist medical opinion.

27. Dr Peter Brown, a plastic surgeon, had operated on the plaintiff having diagnosed carpal tunnel syndrome. Dr Colin Andrews, consultant neurologist, had confirmed that diagnosis on 27 July 1979.

28. Dr Brown concluded that it was "possible" there was a relationship between the syndrome and the fall. He concluded that the operation had relieved the symptoms of carpal tunnel syndrome but not the symptoms of the whole of the right upper arm.

29. Dr Colin Andrews confirmed the successful outcome of the carpal tunnel operation performed by Dr Brown. He considered it "quite conclusive" that the carpal tunnel syndrome resulted from the fall. However, he referred her to Dr Ray Newcombe to consider whether neurological defects could explain the continued pain.

30. Dr Newcombe reported a high probability of a thoracic outlet syndrome.

31. As at 17 November 1982, Dr Andrews was of the view that apart from possible cervical disc involvement, the basis for her complaints of pain and disability was "functional". He felt she had developed "compensation neurosis". In his opinion, the plaintiff was "fit for work".

32. He last reviewed the plaintiff in March 1987. He noted that the right thoracic outlet had been treated operatively. He found "a gross degree of functional overlay" and commented,

It really is difficult to believe the symptoms that she claims. I
think she is fit to return to work.

33. The thoracic outlet syndrome was considered by Dr Andrews to have been rendered symptomatic by the fall.

34. It is no part of a medical expert's task, of course, to give evidence as to the veracity of a person examined. Dr Andrews finds no neurological explanation, as at March 1987, for the plaintiff's symptoms. He refers to compensation neurosis and functional overlay as explanations for the continuance of symptoms. I do not take Dr Andrews' comment as to the believability of the symptoms to be an opinion concerning the plaintiff's veracity but rather a support for his opinion that if the plaintiff genuinely suffers from continued pain and disability, there is no physical explanation for it.

35. It was Dr Ray Newcombe to whom the plaintiff was referred in February 1980. Dr Newcombe expressed the opinion,

... she is very genuine and that there probably is not much functional
overlay, if any.

36. Again, that opinion is not of any evidentiary value. The conclusion as to the degree of functional overlay, if any, is not really within Dr Newcombe's speciality. His statement does, of course, properly expose the basis for his opinion.

37. Dr Newcombe found compression of the artery on elevating the arm. He recommended an operation but the plaintiff was then seriously anxious about accepting that advice.

38. An operation was, nevertheless, performed on 15 August 1980. As at 17 October 1980, Dr Newcombe was hopeful that this would relieve the persistent right shoulder pain.

39. This did not prove to be so. As at 16 December 1983, the plaintiff continued to complain of pain. Dr Newcombe concluded "functional elements" were present. He considered that the pain, coldness and weakness of the upper limb suggested secondary reflex sympathetic dystrophy. He recommended review by a pain clinic.

40. On 12 April 1990 (mis-typed as '1980'), Dr Newcombe again reviewed the plaintiff. He felt that her general condition was stable. He noted degenerative changes in the thoracic and cervical spine.

41. By 3 August 1990, Dr Newcombe had concluded that there was a "significant psychological component to her continuing complaints".

42. As at 5 December 1995, Dr Newcombe assessed her then condition, "on the basis of the history" to be related to the fall. The ongoing disability prevented a return to work. The objective measure of permanent impairment he considered to be 20% as to neck function and 7.5% as to the low back.

43. Each party had the plaintiff psychiatrically assessed by two psychiatrists. Whether more than one was necessary may be open to question.

44. For the plaintiff, Dr Yolande Lucire, psychiatrist, examined the plaintiff on 26 June 1990.

45. As to the history, Dr Lucire commented,

I got the impression that the carpal tunnel release must have been a
misdiagnosis.

46. It is not clear to me how Dr Lucire came to this view. It was not a matter within her speciality. Dr Brown, who treated the condition, was satisfied it was present and that it was corrected by operation. Dr Lucire was entitled to conclude that that syndrome did not explain the range of symptoms of which the plaintiff complained but her opinion that it was a "misdiagnosis" to have found carpal tunnel syndrome seems to me to be unprofessional and arrogant speculation.

47. That "comment" causes me to doubt the validity of Dr Lucire's reasoning processes.

48. As it happens, the only conclusion to which Dr Lucire came was,

It is apparent that Mrs Miletic considers herself an invalid. Her
illness behaviour is consistent with invalidity.

49. This is not an opinion of any value. Whether the plaintiff "considers herself an invalid" is a question of fact, not a matter for expert opinion. The matter requiring an explanation, which Dr Lucire fails to offer, is why the plaintiff considers herself an invalid.

50. Her next report of 31 January 1991 is a little more helpful. In that report, Dr Lucire stated that she considered the symptoms the plaintiff complained of went beyond merely physical damage. The plaintiff was, she considered, exhibiting "abnormal illness behaviour", whatever that may mean.

51. I place no relevance on Dr Lucire's opinion as to the honesty or otherwise of the plaintiff or the effect on her behaviour of other treating doctors. Unfortunately, Dr Lucire does not address the question whether, given resolution of this litigation, the "abnormal illness behaviour", if genuinely exhibited by the plaintiff, will continue or abate.

52. Dr Peter J Morse, a psychiatrist, examined the plaintiff in December 1991. He found her depressed and sad. He considered her complaints consistent with preoccupation and brooding leading to a disability in itself. He considered it unlikely that, even if the underlying physical cause went away, there would be any change in her ongoing state.

53. That opinion, albeit based on an acceptance of the subjective truth of the plaintiff's complaints, does provide an opinion relevant to the issues in the case.

54. Two psychiatrists saw the plaintiff for the defendant.

55. Dr James Gatenby assessed the plaintiff, apparently for workers' compensation purposes, on 1 March 1983. He found her to be "extremely introspective and preoccupied with her physical complaints".

56. He found organic signs of disorder not psychiatric in origin but concluded there was "a definite conversion reaction with features of underlying depression". He concluded she remained unfit for work, other than light duties. He further considered "her future prognosis for improvement would seem poor". This was a view expressed on 31 July 1985. It was more pessimistic than the view he had expressed in a medical certificate given to the defendant on 1 March 1983.

57. Dr John B Truman saw the plaintiff on 8 January 1986. He noted no signs of exaggeration or minimisation. It was Dr Truman's opinion that whilst there was a moderate to severe depressive illness, the main problem was her physical disabilities. He concluded,

As long as she is having physical disabilities, she is likely to
continue to have significant emotional problems ie depressive illness.

58. There was also a report from Dr Robert Shoulder, a psychiatrist, dated 15 June 1987. He had also examined the plaintiff on behalf of the defendant.

59. He did not consider that her presentation demonstrated psychological illness. He expressed the opinion that the muscle wasting which was evident was not caused by any "pathological organic process" but by mere disuse.

60. Dr Shoulder based that opinion on an opinion he attributed to Dr Stubbs. There is no evidence before me of that opinion. It follows that I must, therefore, disregard this aspect of Dr Shoulder's opinion, particularly as it conflicts with the opinions of Drs Newcombe and Truman which opinions I accept.

61. Dr Shoulder then proceeds to express the opinion that the plaintiff's "disabilities that she claims are consciously fabricated".

62. It is not clear whether that view is put forward as following from Dr Stubbs' opinion. However, whether it is or not, no grounds supporting it are stated. As an opinion, in itself, it is a view as to the credibility of the plaintiff which is not a matter for expert opinion in the absence of some identifiable psychiatric compulsion to fabrication which might be capable of being the subject of expert opinion.

63. There was a second interview with Dr Shoulder on 9 May 1990. I do not need to comment on Dr Shoulder's description of the plaintiff's presentation. Every other doctor noted her depression, anxiety and sadness. Dr Shoulder records her presentation as "at ease and often enough smiling".

64. As she walked away, she did so, he commented, "vigorously and at normal speed".

65. Such comments are of no evidentiary value being not such as to require or utilise any relevant expertise.

66. Again, Dr Shoulder expressed an opinion, "she is a malingerer". That is not a medical diagnosis. Dr Shoulder has no expertise relevant to it. If the plaintiff consciously is exaggerating or fabricating, it is for the court to determine that, not Dr Shoulder.

67. In any event, I would find it surprising if, being astute enough to deceive all other doctors by pretending to be distressed and disabled, the plaintiff would drop all such pretence upon being referred by the defendant to Dr Shoulder.

68. The tone and content of Dr Shoulder's report suggests to me that, whether consciously so designed or not, it is not a fair and objective assessment of the plaintiff. So far as psychiatric evidence is concerned, I prefer the opinions of Drs Morse, Gatenby and Truman to those of Dr Shoulder.

69. I accept that there is a degree of psychiatric involvement as Dr Truman suggests. Dr Newcombe's evidence persuades me that there is significant ongoing underlying physical pain. In my view, that pain and disability and its subsequent course is caused by the fall.

70. The disability is no less real or intractable because it has a psychological component. I regard her as totally and permanently incapacitated for any employment likely to fall within her capacity. Unfortunately, that capacity was always limited to manual labour.

71. For general damages I award $75,000.00. Of that sum, I attribute two-thirds to the past. On that sum, $50,000.00, I award interest for 17.5 years, at a rate, net to take account of the regularity of the rate of suffering, of 2%. I award $17,500.00 accordingly.

72. The basis for the calculation of past economic loss was not in dispute. As I am of the opinion that, but for the fall, the plaintiff would have continued in her occupation as a housemaid, or like employment, till age 60, the past net wage loss of $229,667.28 should be awarded. I cannot perceive any contingencies which might make it just to reduce that figure.

73. The Fox v Wood component was agreed at $22,821.55.

74. The net wage loss, after payment of compensation to date, is therefore $175,660.73. Interest to 12 February 1996 was calculated at $149,848.60. To 1 April 1996 a further sum of $323.05 must be added calculated at 10% per annum only. I award $150,171.65 accordingly for interest on the past wage loss.

75. Future economic loss should be calculated at $350.00 per week to age 60 rather than 65 as claimed. On that basis, a discount of no more than the usual sum (15%) is appropriate. There is some chance that some medical condition might have shortened the plaintiff's working life below age 60. This I consider off-set by the chance she might have continued to earn beyond age 60. I would award $85,382.50 for this head of damage.

76. Out-of-pocket expenses to trial total $21,292.55. Of that sum, $261.66 has been paid by ACT Health Authority and $6,773.27 by the plaintiff. The remainder is said to be unpaid.

77. Those expenses have been incurred reasonably constantly. The average rate I will assume to have been 13.5%. From September 1978 to date is approximately 17.25 years. That yields interest of $7,886.63. I round that down to $7,885.00 and award that sum accordingly.

78. Future cost of pharmaceuticals and other expenses was calculated at $6,757.16. However, that figure should be discounted for contingencies. I allow $5,740.00.

79. A claim was made on the basis of Griffiths v Kerkemeyer. I have no indication that the arrangement between the plaintiff and her friends since 5 October 1993 represents a net rendering to her of domestic services caused by her injured state. There is no real indication of the extent to which the plaintiff's husband and the plaintiff merely rearranged domestic tasks. I accept that there must have been some net subsidisation of the plaintiff. I would allow $10,000.00 for the past and $12,500.00 for the future, as a matter of general impression rather than precise calculation.

80. The above figures may be summarised as follows,

General damages $75,000.00
Interest on general damages for the past 17,500.00
Past loss of earnings 229,667.28
Fox v Wood 22,821.55
Interest on unpaid past earnings 150,171.65
Future economic loss 85,382.50
Past out-of-pocket expenses 21,292.55
Interest on expenses paid 7,885.00
Future costs 5,740.00
Griffiths v Kerkemeyer, past and future 22,500.00
TOTAL $637,960.53

81. There will be judgment for the plaintiff in the sum of $637,960.53.