Barbara Marie Powell v Tracy Anne Williams [1996] ACTSC 32 (24 April 1996)

SUPREME COURT OF THE ACT

BARBARA MARIE POWELL v. TRACY ANNE WILLIAMS
No. SC1418 of 1988
Number of pages - 8
Personal Injuries

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Personal Injuries - motor vehicle accident - whether plaintiff contributorily negligent - aggravation of accident related condition by previous event - effect of grief reaction - effect of income from joint partnership - no point of principle

HEARING

CANBERRA, 12 March 1996
24:4:1996

Counsel for the Plaintiff: Mr G Stretton

Instructing solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr M Williams

Instructing solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $216,860.53.

DECISION

HIGGINS J This is a claim for damages for personal injury as a result of the alleged negligent use by the defendant of a motor vehicle.

2. The defendant denied negligence and pleaded contributory negligence.

3. There was undisputed evidence that on 2 October 1986 the plaintiff drove a motor vehicle in an easterly direction along Marconi Crescent, Kambah in the Australian Capital Territory. The defendant drove another motor vehicle south along Harrington Circuit, also in Kambah. At the intersection of those streets, the vehicles collided. The defendant's vehicle failed to obey a 'Give Way' sign.

4. Mr Williams, for the defendant, whilst not conceding liability, addressed no submissions to that issue.

5. Having regard to the circumstances of the accident deposed to, I am satisfied that the collision was caused by the negligence of the defendant. I am not satisfied that there was any fault on the part of the plaintiff which contributed to the accident.

6. It follows that the plaintiff is entitled to damages.

Damages
7. The plaintiff was born at Sydney, New South Wales on 30 September 1944. She is now 51 years of age.

8. Up to her marriage in 1964 the plaintiff had acquired an Intermediate Certificate (1959) and worked as a receptionist and sales assistant. She had four children, Lori born 23 September 1964, Kristen born 9 December 1966, Steven born 1 June 1968 and Jeffrey born 25 August 1969.

9. In 1970, she returned to Sydney and trained as a nurses' aide. During 1973 she commenced to assist her husband in a panel beating and spray painting business.

10. In 1979 the plaintiff and her husband were divorced. She moved to the South Coast where she worked as a venepuncturist with a pathologist.

11. She returned to Canberra in December 1985, having remarried in June of that year.

12. In February 1986, the plaintiff obtained a permanent casual clerical job with Woden Valley Hospital. She was appointed a Clerical Assistance grade 1 but acted as a grade 3. She averaged 32.5 hours weekly.

13. Tragically, a little over three months before her own accident, her daughter Kristen was killed in a motor vehicle accident. The plaintiff was devastated. She took two weeks off work, but thereafter continued with her employment as before.

14. When the collision in which she was involved on 2 October 1986 happened, the horror of that loss came to the plaintiff's mind. At first she feared that she too would die. Then, as the car came to rest and the plaintiff realised she had survived, she experienced great anger that she had survived but her daughter had not. It re-ignited her grief.

15. She suffered a sore neck as a result of a whiplash injury sustained in the collision. There was recurring pain in the head and neck. Every time it recurred she was reminded of her tragic loss.

16. On 2 October 1986, the plaintiff was reviewed by Dr Quach, a general practitioner. She was off work until 12 October.

17. She found prolonged sitting and the other duties she was then performing triggered neck pain and headaches. The pain spread into her shoulders on such occasions.

18. In November, the plaintiff was transferred to the medical records section. This activity increased the head and neck pain the plaintiff was experiencing. It was mainly a result of increased computer use required by that position.

19. Shortly thereafter the plaintiff was given one month off work. She consulted a chiropractor. This helped until further pain was triggered by further activity. That cycle of pain and relief continued until May 1987.

20. The plaintiff tried various combinations of work duties at Woden Valley Hospital. Notwithstanding that episodes of severe pain recurred, by October 1987, the plaintiff decided to seek less physically stressful employment.

21. She tried a job as a sales assistant. It was not an improvement.

22. In March 1988, the plaintiff commenced minding children in her own home as a Family Day Carer. She continued to suffer pain but it was less and hence more bearable. The plaintiff then slipped in loose gravel and broke her ankle. That injury cleared without incident.

23. Her husband commenced, and gradually built up, a landscaping business. The plaintiff was an equal partner and performed clerical duties of a minor nature. It took her no more than a couple of hours per week.

24. In July 1989 the plaintiff suffered reflux pain. She was advised to reduce her drug intake. However, that lessened the pain relief from those drugs.

25. As a result of that reduction, and the fact that the children she was minding grew bigger, she gave up Family Day Care.

26. She could not find other suitable work.

27. Her symptoms appeared to have been exacerbated by her unresolved grief over the loss of her daughter. The son of a friend was lost in another motor vehicle accident. Counselling her friend and attending 'Compassionate Friends', a mutual help grief counselling service with that friend, helped to resolve her own grief.

28. The plaintiff was found also to have an underactive thyroid. That disability does not seem to have caused any ongoing disability.

29. The plaintiff's husband's business continued to grow but her contribution to clerical work required by it did not increase. At times, she spent some days resting.

30. The business was then sold. Her husband commenced a new business in October 1995. Her clerical contribution remained much the same.

31. She states that she had some level of pain fairly constantly but only once or twice weekly has it been bad enough to require medication. It commences to worsen if she engages in walking, standing or sitting in one place for more than ten minutes at a time. It then gets progressively more severe if she continues. She feels she could cope with about two days work a week so long as she can stop and rest from time to time.

32. She no longer engages in walking or aerobics as she did before the accident.

33. She had at times pins and needles in the fingers but that has resolved. She still has that kind of discomfort from time to time in the shoulders.

34. The plaintiff did attempt golf but feared the effect of the impact if she struck the ground and so did not persist with it.

35. Household chores are possible for her if she breaks the work into ten minute periods. She does some craft work.

36. She accepts that she can work part time, say two hours at a stretch and, at her own pace, up to 17.5 hours weekly.

37. In cross-examination, she conceded that she had experienced migraine-type headaches since she was 25 years old. However, they were only occasional. The site of that pain was from behind the eyes to the top of the head.

38. The plaintiff was questioned as to her share of the income of B and B Landscaping. In 1993/94 the income was $52,100.00. It seemed to be suggested that this was somehow reflective of the plaintiff's earning capacity. In reality, however, this represented her husband's earnings of which that was the share given to her. But for the accident, the work she had been doing, for example, at Woden Valley Hospital, could readily have been continued so as to provide additional income.

39. The plaintiff's evidence was corroborated by her husband.

40. Their evidence was neither challenged in any serious way nor was it contradicted. I accept both those witnesses as truthful and accurate.

41. The medical evidence indicates that, at first, the plaintiff's prognosis appeared good. However, by June 1988, Dr Quach, her general practitioner, noted the effects of the whiplash injury she had sustained would 'require time to settle'. The symptoms were, he considered, aggravated by tension and depression arising from the fatal car accident involving the plaintiff's daughter.

42. The fact that the effect of the accident related condition was aggravated by a previous event does not relieve the defendant of responsibility for the result. It is simply a case of taking the plaintiff as she was.

43. Dr Andrew Brook, a rheumatologist, examined the plaintiff in November 1990. He found pain and limitation of neck movement still continued. He prescribed Valium. He last reviewed her in September 1995. There was still pain and limitation of movement. He also found that she had oesophagitis. The history he took seems entirely consistent with the plaintiff's evidence.

44. In Dr Brook's opinion there had been injury to the cervical spine in 1986 which was still 'mildly symptomatic'. He commented,
The main problem is the secondary occipital neuralgia which causes

headaches when the neck pain is severe. The condition is permanent
and I know of no treatment that can be sensibly offered.

45. He felt that whilst this would make her a less than satisfactory employee and unsuitable for some occupations, for example, shop assistant, she could cope with 'some mixed activities of office work'.

46. This assessment seems to me to be consistent with the plaintiff's self-assessment.

47. Dr Ho, a neurologist, found some evidence of disc pathology at C4/5 and C5/6 being protrusions and disc desiccation at C2/3 and C3/4. He expressed no view, however, as to whether these defects were age or accident related or whether they were responsible for causing or continuing the plaintiff's symptoms.

48. The defendant caused the plaintiff to be examined by Associate Professor R F Jones, a rehabilitation specialist. His reports were very thorough. The histories were consistent with the plaintiff's evidence as given before me. Although Prof Jones did not detect the slight limitation of neck movement noted by Dr Brook, he found her history consistent with the symptoms of which she complained. In his view they were largely stress related.

49. Dr Andrews, consultant neurologist, also examined the plaintiff on behalf of the defendant. He found tenderness over C6/7. In his final report on 23 August 1994, he concluded that there were 'some mild continuing symptoms in the neck'. He did not consider that it would interfere with normal clerical work.

50. So far as the continuing symptoms were concerned, Dr Andrews' opinion is valid. That opinion does not, however, take account of the effects of the frequent severe headaches extending down into the shoulders.

51. As there was reference to the role of anxiety and depression in causing the more severe symptoms, the defendant referred the plaintiff to a psychiatrist, Dr Dyball.

52. He found that there had been a grief reaction which the motor vehicle accident 'had not helped'. He felt that getting over that grief reaction would help the plaintiff to cope better with the other effects of that accident. Time would be the only real treatment.

53. Between his second report in July 1991 and his third report dated 31 August 1994, Dr Dyball noted that attending Compassionate Friends with a bereaved friend had helped the plaintiff to resolve her abnormal grief reaction.

54. There is no reason to doubt the plaintiff's report of her symptoms. They have now continued for more than nine years and have been stable for approximately three years. I think that Dr Brook's prognosis is the most probable.

55. That is, I accept that the plaintiff's present level of disability is permanent.

56. I consider that the effect of that level of disability on the plaintiff's work capacity is such as to limit it to her own perception of her capacity, that is, to approximately 17.5 hours per week. It is clear that it is the episodic exacerbation of pain, often triggered by prolonged activity, which limits her capacity for work. There is, as Mr Williams submits, a small choice that, with a lessening of anxiety, there may be some increase in that capacity. However, I do not think it likely that it will increase the actual hours the plaintiff will be able to work.

57. There have, also, been unrelated events which have temporarily rendered the plaintiff unfit for work. Over the last 9.5 years those events have not led to abnormally long periods of unfitness for work. It would not have led to any significant loss of earnings but for the effect of the accident. Further, to assume a loss of only 15 paid hours as a measure of diminution of working capacity, contains, in itself, in my opinion, a heavy discount for contingencies failing, as it does, to take account of the period up to mid-1991 when the disability was more severe than subsequently.

58. I award the sum of $35,000.00 for general damages. I attribute $25,000.00 to the past and award $4,750.00 for interest thereon. There is some imbalance between pre-1991 and after that year but I have not made any allowance for that as the adjustment would be very slight.

59. Out-of-pocket expenses were agreed to have been $3,209.15.

60. As to loss of earning capacity, the plaintiff's loss has been calculated by Macquarie Reporting Services. The assumptions they have made, including the higher marginal tax rate as a result of the partnership dividend seem reasonable to me. They are supported by the evidence. Although the report allows for 'actual earnings', that figure is based on an hypothetically realised capacity to engage in work as well remunerated as her pre-accident employment for 17.5 hours weekly.

61. The loss attributable to the past was $56,612.38. I accept that figure is a reasonable estimate of that loss.

62. For interest purposes, I assume that net loss to have been evenly incurred over the last 09.5 years. That yields a figure of $38,829.00.

63. The future loss of earning capacity should be based on an assumed loss of $130.00 per week net as has been claimed.

64. Having regard to her occupation, she would, in my view, have continued in employment to age 65 but for the accident. There is nothing in her prior or subsequent history to suggest that her employment would, but for the accident, otherwise have been shortened. It is possible that, but for the accident, she may have increased her hours of work. It is possible that, despite the accident, she will increase her actual or potential hours of work by reason of some modest improvement in the frequency of her symptoms. The value of the lost future earning capacity calculated on the conventional basis is $64,640.00.

65. There was a claim for loss of superannuation benefits. Had she remained employed at Woden Valley Hospital, the statutory requirements would, according to Macquarie Reporting Services, result in an employer contribution of $25,619.35. However, if the plaintiff had exercised her assumed residual capacity of 17.5 hours weekly, it is likely that there would have been some proportional contribution acquired accordingly. Some allowance should be made for that. I would allow $11,820.00 as the net loss of employer contribution to superannuation.

66. There will be a continuing need for medication. A sum of $4.20 per week is claimed. However, the evidence does not support a figure of that magnitude. There is also the impact of the reflux problem which has reduced the previous drug intake. I consider $2,000.00 to be appropriate.

67. The damages thus assessed are,

General damages $35,000.00
Interest thereon $4,750.00
Out-of-pocket expenses $3,209.15
Loss of earning capacity
- Past $56,612.38
Interest thereon $38,829.00
- Future $64,640.00
Loss of superannuation benefits $11,820.00
Future pharmaceuticals $2,000.00
TOTAL $216,860.53

68. There will be judgement for the plaintiff in the sum of $216,860.53.

69. I will hear the parties as to costs.