Michaela Jira v John Mynott [1996] ACTSC 46 (24 May 1996)

SUPREME COURT OF THE ACT

MICHAELA JIRA v. JOHN MYNOTT
No. SC361 of 1990
Number of pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - "Whiplash" Injury - No Issue of Principle.

HEARING

CANBERRA, 6 May 1996
24:5:1996

Counsel for the Plaintiff: Mr R. Mildren

Instructing Solicitors: Vandenberg Reid

Counsel for the Defendant: Mr F.G. Parker

Instructing Solicitors: Crossin Power Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $81,879.59.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for injuries suffered by the plaintiff as a result of a motor vehicle accident at Queanbeyan on 8 April 1989. Liability was not in issue.

2. The plaintiff was born in Czechoslovakia on 4 April 1966, and came with her parents to Australia at the age of 3. Her parents eventually settled in far north Queensland, and the plaintiff attended High School in Cairns. She successfully matriculated, and was admitted to study Arts at the Australian National University, and successfully earned her degree, with a major in political science in 1988. She obtained employment with the Pacific International Hotel in Cairns as a trainee manager, and stated that at the time it was her intention to develop a career in the hospitality industry, focusing on marketing.

3. In April 1989 the plaintiff returned to Canberra for the degree conferring ceremony - a happy and significant event in any young person's life. The plaintiff and her friend were in Queanbeyan on the evening of 8 April, and had had dinner. Returning at about 7 p.m. in wet and dark conditions the car in which the plaintiff was a passenger was giving way on the Monaro Highway when a car driven by the defendant "just ploughed into the back" of the car driven by the plaintiff's friend. The plaintiff gave evidence that she was thrown forwards and back against the seat, hitting her elbow on the door and her head on the back of the seat. She says she was in shock, and crying and incoherent while attending the police station to report the accident. She was taken to Woden Valley Hospital for some hours where she was X-rayed and allowed to leave. She says she was sore and nauseous, and in fact was ill several times that night after leaving the hospital. She was given pain killers and a soft collar at the hospital, and told to see her general practitioner.

4. The plaintiff gave evidence that she continued to feel sore and nauseous, and extended her stay in Canberra. She had pain in the neck and lumbar spine, headaches, and radiated pain to the legs and arms. She continued to feel ill. On her return to Cairns she saw her family general practitioner, and undertook physiotherapy. She returned to work on 21 May 1989.

5. The plaintiff gave evidence that she encountered difficulties in continuing with this work. At the time she was working as a cashier, as part of the trainee programme of involvement in all aspects of the hotel business, and this involved standing for long periods of time. By June, she says she had decided that the pain of standing all day making it very hard to walk meant that she could not continue, and she tendered her resignation. There is evidence that after giving her notice she slipped and fell in an unrelated incident and had some weeks on compensation for a wrist injury.

6. The plaintiff did not give her injury and incapacity as a reason for resigning at the time, and in cross examination she said that this was because she wanted good references from her former employer. She returned to Canberra, and obtained employment at the Hyatt Hotel as a waitress and as a swimming instructor. She says that she had to leave the job in the hotel because of her injury. She enjoyed swimming teaching, but found eventually that the chlorine was irritating. In December 1989 she returned to Cairns for a holiday until February 1990. She then moved to Brisbane, and began working in the insurance and superannuation industry, undertaking training and then working with Freestyle Financial Services selling insurance products on a commission basis. She worked with this organisation until 31 July 1990.

7. The next day she left with her father on an extended trip to Europe and the United States. She says that this was at her family's instigation in order to spend some time at a renowned "spa" in Czechoslovakia where she could undergo treatment for her back and neck by way of hot mineral water baths, mud treatments and vigorous massage. She conceded in cross examination that no thought had been given to trying any of this style of therapy in Australia. She undertook this treatment for some 17 days, and then spent some months in the United States, where she visited her sister.

8. The plaintiff gave evidence that she had been trying various therapies to relieve her neck condition in Australia, including physiotherapy, massage from a natural health practitioner, and chiropractic services.

9. It is unclear precisely when the plaintiff returned to Australia, but by February 1991 she was looking for work and in receipt of Social Security Benefits. The plaintiff gave evidence that she felt that she was a poor employment prospect because her ongoing neck pains meant that she would regularly have to take time off. She decided to look to become self employed in the financial services industry selling superannuation and life insurance products, and commenced an agency with Australian Eagle in April 1991, later also selling products for FAI Insurance.

10. In this enterprise the plaintiff agreed that she could herself decide the pace and rate of her work. The evidence shows that her earnings from this enterprise have varied considerably, as the time devoted to obtaining and servicing clients has varied. I have no doubt that, when she applies herself to the task the plaintiff is successful in this industry, being clearly intelligent and presenting as a very articulate and capable young woman, who is obviously able to communicate and relate effectively to others. The plaintiff called associates from the industry who confirmed their good impressions of her. The plaintiff claims that while she is sometimes able to work full or nearly full time, and in the 1991-92 financial year this was broadly the position, at other times she must virtually cease work. As a result, she makes a very large claim for loss of earnings, based on her expectation that she could have been earning in the vicinity of $70,000 to $75,000 per year.

11. The nature of the loss of earnings claim in this case is somewhat vague, and indeed the plaintiff's counsel urged me to approach this as essentially a buffer claim, albeit in his view a very considerable one. In the plaintiff's most successful year she earned in the vicinity of $40,000 from her insurance enterprises, with a taxable income of the order of $25,000. While she no doubt aspired to earn larger sums, this is, in the nature of any small business, speculative.

12. The defendant points out that the plaintiff has interrupted her insurance sales with quite extensive breaks, including a 3 1/2 month European tour last year, and that she has in effect made choices as to the extent of her work and earnings unrelated to her medical condition. The plaintiff claims that it is her medical condition which determines the extent to which she is able to devote herself to her enterprise. It is therefore necessary to examine the medical evidence with some care.

13. The first diagnoses of "whiplash" injury come from the University Health Service, where Dr Leigh, who had been the plaintiff's general practitioner during her student days said on 14 April that "she suffered whiplash injury and concussion and was unfit to travel for 8/4/89 until 17/4/89." On her return to Cairns Dr Bennett saw her on 24 April, and described her injuries as "consistent with severe whiplash injury such as may have been caused in the accident she described to me". He says "Diagnosis - She had an x-ray with her which revealed a fracture of the tip of C7. This was a minor avulsion fracture. Most of her symptoms are in fact caused by ligamentous damage involved in the forced manipulation of her neck associated with a severe degree of muscle spasm. This muscle spasm is resulting in headaches, pains in the shoulders and upper back which is interfering with her ability to work. Prognosis - This type of soft tissue injury rarely if ever resolves completely. However given correct treatment she should be able to return to work without further problems". Dr Bennett saw her again in 1990 and in a review to her solicitors of 28 June 1990 said "When reviewed on 20 January 1990 there was still some residual deficit however at that time she seemed to be moving much better.....Because of the nature of these injuries I would expect occasional exacerbations including neck pain, lower back pain and muscle contraction headaches. Because of these injuries I would expect that in the long term she would be limited to doing non lifting type work and would certainly suffer some disability involved in heavy sports."

14. The plaintiff was seen in Canberra by Dr Keiller, an orthopaedic specialist, on 23 August 1989 and again on 23 April 1993 for the purpose of medico legal reports to her solicitors. In his first report he expected that "as symptoms abate she should increase her activity and try to get back into the work force." In his second report he noted that while the lumbar pain had resolved, there was ongoing neck pain which was causing problems. He said: "Her main problem is the continuing headache and neck pain and stiffness. She has a long, thin neck and would, therefore, have been more liable to damage from trauma than a short, squat person. The fact that she had a fracture, although in itself only a minor one, indicates the degree of force which was applied to the soft tissues of her neck. It is not surprising, therefore, that she still has ongoing symptoms."

15. Dr Keiller's prognosis was "She will be involved in some future cost of a minor nature for intermittent, conservative treatment, but I do not expect any heavy future expense, either for prolonged conservative treatment, invasive investigation or surgery." He points to further improvement in the plaintiff's condition but concludes "I think it is unreasonable to expect that she will become completely symptom free, but I would expect that her pain will reduce to nuisance value only, and that she will regain at least some of her neck movement."

16. The plaintiff was also examined, at the initiative of her solicitors, by Dr Corry, a Canberra rehabilitation medicine consultant. In his report to the plaintiff's solicitors following his examination of 13 September 1993 he says "Ms Jira has moderate continuing disability consistent with soft tissue injury namely in the cervical region caused by whiplash type trauma in the motor vehicle accident as described. Initially symptoms were sufficiently severe that they restricted capacity to perform duties as a hotel manager, but have now settled such that she copes with more sedentary duties with minimal difficulties." He essentially maintained this opinion following his review in February 1996: "Ms Jira's situation appears to have remained fairly stable over the last two years since I last examined her. She has persisting mild disability which she can usually control by changing her posture and work activities on a periodic basis. She appears to be coping well in her present occupation as a financial consultant. After this length of time, it is probable that she will continue to have mild symptoms persisting indefinitely into the future. It is unlikely that there will ever be a need for surgical treatment or intervention, and apart from occasional physiotherapy and analgesics, no other specific therapy is indicated at this time."

17. The foregoing medical reports from which I have quoted extensively are all reports prepared at the behest of the plaintiff, and in that sense represent the high water mark of the plaintiff's medical evidence. They present a picture of very mild disabilities which do not represent a significant barrier to the plaintiff's earning capacity. This picture is, not surprisingly, reinforced by the medical evidence tendered by the defendant. Dr Atkinson, a Brisbane neurosurgeon, reported in April 1993 that "I believe this woman is competent to continue in her work as a financial consultant. I do not believe that the injury has significantly interfered with her competence to carry out this work and to continue that work to normal retirement age. I believe she is competent to be involved in recreational activities. In summary, as a result of the neck injury, the small C7 spinal fracture and the low lumbar disc injury, I consider this woman has a permanent impairment of the whole person of 7 1/2 %." This opinion had not changed by the time of his September 1995 report where he says: "She continues to suffer from neck pain and referred pain to the shoulders and into her head. It is also notable that she has quite thin neck muscles but a long neck. I consider that the continuing pain is the result of injuries that she suffered to the muscles, ligaments and discs. I consider that this pain should be handled symptomatically with analgesic drugs, intermittent physiotherapy and transcutaneous nerve stimulation." He maintained his assessment of impairment, and had taken a history in 1995 that "She told me that she continued to work as a financial consultant. In some weeks she could work 50 hours per week and on other occasions she could only manage 20 hours per week because of the pain."

18. Dr Stevenson, a consultant physician, examined the plaintiff on behalf of the defendant in 1995, and also gave telephone evidence. He was less convinced that there was any ongoing pain as a result of the injury, and was more inclined to put her ongoing symptoms down to strain as a result of her employment. This opinion is clearly at odds with the generally consistent views of the other medical experts from both sides, and I do not place any weight on this. The other medical opinion that is out of kilter is that of Dr Petrohilos, her treating general practitioner, who in a report of April 1996 says that her condition is a "major disrupter to her occupation." I note however that in a report in 1993 Dr Petrohilos said that "as far as a prognosis is concerned it is difficult for me to be sure what the future holds and I would think more expert opinion should be obtained regarding this."

19. The medical evidence in this case simply does not establish any significant barrier to the plaintiff's ability to earn an income. I accept that the plaintiff does genuinely suffer intermittent neck pain, and that this is attributable to the accident for which liability is admitted. This much is common ground between all the doctors, with the exception of Dr Stevenson who attributes any ongoing pain to work related stress, and lay witnesses called in support of the plaintiff.

20. But the overwhelming impression from the medical evidence is of a person with a mild disability able to cope with a form of employment which offers flexibility. The plaintiff has no doubt had times when she is restricted in what she can do, but she has also had periods when she can work long hours. She has also chosen at times to take long breaks from paid employment, and to change employment and place of residence.

21. I do not find that the claim for past wage loss as set out in the particulars for $69,100 has been established. Accepting an average weekly wage at the Pacific International Hotel of $250 per week as a starting point, her claim beyond 1 April 1990 runs into an immediate problem, in that her wage at Freestyle Financial Services was considerably above her pre injury earnings.

22. Moreover, I do not believe that she has established a claim for wage loss during her European trip of 1990-1991. For the period beyond April 1991 I find great difficulty in establishing with any precision her economic loss. I find that I should adopt the course urged by Counsel, and make a discretionary award by way of a buffer. For the plaintiff's past economic loss I award $20,000. This amount would generate interest of $9,750 assuming regular payments.

23. In relation to future economic loss the medical evidence is strongly against anything but a modest buffer to reflect the presence of an ongoing mild disability. I award as a matter of discretion $25,000 under this head.

24. Out of pocket expenses were agreed by Counsel in the sum of $5,996.44, which I accept.

25. The Statement of Particulars claims future out of pockets at the rate of over $3,500 per year. I do not find this figure to be established on the evidence before me, and I award as a matter of discretion a total of $8,000 under this head.

26. In relation to general damages, the plaintiff should be considered on the basis of a genuine, although mild injury, which required no surgical intervention. I award $12,000 under this head, with $8,000 for past pain and suffering, resulting in interest of $1,133.15.

27. Taking these individual heads of damages together results in an award of damages to the plaintiff in the sum of $81,879.59, which I award as an appropriate overall sum.