Samantha Anne Wecker v Leo Lexton O'Brien and Carl Lum Wecker [1996] ACTSC 53 (31 May 1996)

SUPREME COURT OF THE ACT

SAMANTHA ANNE WECKER v. LEO LEXTON O'BRIEN and CARL LUM WECKER
No. SC381 of 1988
Number of pages - 7
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Pre Existing Knee Injury - Causation - Aggravation - No Issue of Principle.

Brandi v Mingot (1976) 12 ALR 551

Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 (HL)
Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1

HEARING

CANBERRA, 14 May 1996
31:5:1996

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: Elrington Boardman Allport

Counsel for the Defendants: Mr J. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $50,904.52. 2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injury arising from a motor vehicle accident on 8 December 1987 in which the plaintiff was the passenger in a car driven by her husband which collided with a truck. Both liability and quantum were put in issue at the hearing.

2. The issue of liability may be swiftly disposed of. The plaintiff gave evidence that on the day of the accident she was the front passenger seat in a motor vehicle being driven by her then husband which was proceeding north on Fairburn Avenue in the Australian Capital Territory behind a truck driven by the defendant. The plaintiff's husband moved out to overtake the truck, but at that time the truck itself veered out to overtake a car that was, unknown to the plaintiff or her husband, in front of the truck. The car in which the plaintiff was a passenger collided with the rear of the truck, with the front of the car going under the tray of the truck.

3. The plaintiff was not cross examined on this version of events, and no other evidence was led as to liability. No dispute arose as to liability between the two defendants, and I have no difficulty in finding, on the balance of probabilities, that the accident occurred as a result of negligence on behalf of both defendants. There is no issue of any contributory negligence.

4. The plaintiff was born in 1969 - she was 18 at the time of the accident, and at the hearing is 26 years of age. She was educated at Marian College in Goulburn, completing year 10 and commencing year 11. Part way through year 11 she left school to take up the opportunity to complete an Associate Diploma in Music. She has been a keen and accomplished violin player since early childhood, and studied violin at the Goulburn TAFE campus of the Sydney Conservatorium, completing her Associate Diploma in Creative Arts in 1986.

5. On completing her studies the plaintiff obtained an Australian Traineeship Scheme position as a clerical trainee with the NSW Department of Housing in their Goulburn office in February 1987, and was offered a position there at the end of her traineeship. She married in 1987, and was also doing some part time music teaching to violin students that year. Her husband worked with Telecom, and his position moved to Canberra in that year. For a period he commuted, but the plaintiff looked for a job in Canberra so that they could move. In November 1987 the plaintiff was successful in obtaining a clerical position with a plumbing business in the ACT, and they moved to Canberra.

6. The plaintiff returned to this position after the accident, but resigned at the end of January 1988 to return to live in Goulburn, where her husband had been again transferred. She obtained casual employment at the Department of Housing until June 1988 when she obtained a clerical position with a Goulburn firm of accountants. Her marriage broke down in 1988, and this caused the plaintiff considerable anguish. She left this job in September 1988 as a result of the emotional upset flowing from her marriage breakdown. The plaintiff returned to Canberra, and obtained a job at Olims Hotel Ainslie, again in a clerical role, in October 1988. She suffered a fall and problems with her knee while at Olims, and left this job at the end of November 1988. In January 1989 she commenced work as a consular clerk at the Malaysian High Commission. She had to take periods off work in this position because of her knee pains, and left this employment when she was due to undergo surgery for her knee. Unfortunately this surgery was cancelled at the last moment, after she had resigned. She obtained work in a sales position in October 1989, which she held until January 1990.

7. The plaintiff has had two children, Kelly born in May 1991 and William born in October 1993. She moved to Wagga in 1992, and has only worked periodically since as a telephone sales representative. She acknowledges that her young family is the principal reason why she has been out of the work force. She is currently expecting her third child in September 1996.

8. The plaintiff claims that she was flung forward upon impact striking her right knee on the dash of the car, and was then flung back. At the time of the accident she says that she complained of pain across the shoulders and the neck, and shock. She says that she went home, and then called to a medical clinic in Queanbeyan where she was seen by a duty doctor. There is evidence to show that in fact she had seen a doctor at that clinic on 26 November 1987 complaining of headaches for two weeks, and that a change in eyeglasses was recommended. The notes of the clinic for the consultation on the day of the accident commence: "1. Headaches since 3/52 daily. Now better. Has new glasses." I am satisfied that this consultation was in fact an appointment to see whether the headaches for which she had previously presented and for which a solution had been proposed had resolved. Nevertheless the notes also reveal that she complained of: "2. MVA today" and back pain.

9. The plaintiff's case is that the motor vehicle accident caused ongoing problems to the plaintiff's back, and at least aggravated a pre-existing knee condition which, following an incident at work after the motor vehicle accident, has required surgery and constitutes, together with the back an ongoing moderate disability.

10. The defendant's case is that the motor vehicle accident caused only muscular injuries to the plaintiff's thoracic spine, and that her present back complaints relate to a separate incident in 1995 where she was pushing a motor vehicle and then presented with pain to the lumbar spine. The defendant says that the knee was a pre-existing long term complaint which was aggravated not by this motor vehicle accident but by the subsequent fall at work. On this version of the plaintiff's medical condition she is entitled only to very modest damages for a short period of wage loss, and pain and suffering for a muscular skeletal injury which as now resolved, and which plays no part in limiting her employment opportunities.

11. Central to the defendant's argument are the relatively few references in the plaintiff's medical records to complaints of back pain following the accident, and the absence of reference to knee pain until an incident in October 1988 when the plaintiff's knee dislocated while working at the front reception at a Canberra hotel.

12. Dr Azoury, who saw the plaintiff at his clinic at Queanbeyan on the day of the accident says in his report of 31 August 1984 that she was seen "...after an alleged motor vehicle accident that morning. She came in complaining of a sore neck and left side of upper thoracic spine pain. She was tender over the thoracic area in the region of mid to lower thoracic area - this was aggravated by left sided rotation - this was thought to be a soft tissue injury with associated muscle spasms." I find it significant that Dr Azoury records back problems both at the upper thoracic and mid to lower thoracic area. He says that his next record was of a follow up on 11 December 1987 when she "...complained of thoracic spine discomfort. Clinically she was tender over the thoracic area and lower half."

13. Dr Azoury says that he diagnosed soft tissue injury, and that he had no further records of back pain from August 1990 to November 1991.

14. The plaintiff returned to Goulburn shortly after the accident because her husband was relocated there. She resigned her job at Mills Plumbing, and obtained employment again on a casual basis with the Department of Housing in Goulburn. On 3 March 1988 she consulted Dr Ramasamy, a General Practitioner in Goulburn over her back. In his report of February 1995 he says that he saw her once and requested a thoraco lumbar spine X-ray, which revealed no fracture. His notes refer to "Tender over T7.8.9.10".

15. This is the last reference to back pain until the plaintiff saw Dr Cotterill in Wagga on 20 February 1995. In his report of 1 April 1995 he says the plaintiff "...commenced visits to this surgery in December 1993. The first consultation in regard to symptoms was on 20-2-95. At this time she stated that she had had intermittent discomfort across the region of her lower lumbar spine; she felt this low back discomfort had only been a problem since her being a passenger in a motor vehicle accident in 1987. I have no knowledge of any details of immediate injuries suffered at the time of that accident. On 20-2-95 this low lumbar pain had been exacerbated by her assisting in the pushing of a car; she did complain of pins and needles down the left leg as far as the ankle. She was still able to carry out her normal household tasks; the level of discomfort was similar to many previous exacerbations since 1987 and was significant enough to reduce quality of life."

16. The defendant makes much of the lack of medical attention between 1988 and 1995 in relation to the plaintiff's back. The plaintiff gave evidence that she did suffer ongoing symptoms. The plaintiff impressed as a witness of truth. In some respects she proved to be an unreliable historian, but she was open in acknowledging mistakes. I am satisfied that she was truthful in her evidence on this point, and indeed in her history to Dr Cotterill, and that she has had long-standing, albeit minor, symptoms.

17. Dr Cotterill took further X-rays of the lumbo-sacral spine which were normal, and suggested that a CT scan be performed, but this has not taken place. I accept that one reason for this is that the plaintiff is now pregnant expecting her third child in September 1996.

18. Dr McEwin examined the plaintiff for the purpose of a medico legal assessment for her solicitors on 10 May 1995. He records that "...she continues to have problems with pain in the lower back...(which) ...she indicates that her low back pain with her fingers is between L3 and L5 but spreads out to both sides and also goes up as high as L1. She says it only goes high in her back when the pain is bad." Dr McEwin had previously recorded that "Samantha said that she had had many similar attacks of low back pain since the accident in 1987."

19. Dr McEwin's conclusion is that "The injuries to the cervical, thoracic and lumbar spine arose from the accident. Her symptoms in the lumbar spine strongly suggest nerve root irritation from a protruding disc." He suggests conservative treatment only, with muscle exercises, and concludes "It is reasonable to have an optimistic outlook to the symptoms she has which appear to be arising from a disc protrusion in the lumbar spine as these protrusions usually are healed by the passage of time and suitable conservative treatment."

20. There was no medical evidence tendered by the defendant in relation to the plaintiff's back condition. Dr Andrews in reports of January 1992 and April 1995 refers to back pain, but does not relate it to the accident or to any other cause. In the absence of any other evidence I accept the evidence of the plaintiff and Dr McEwin that the plaintiff does suffer ongoing back pain and resulting moderate disability which is attributable to the accident. The defendant did cause the plaintiff to be examined by Dr Cairns, an orthopaedic surgeon, but his report was not produced. To the extent that I can draw an inference from this, it confirms my finding. While it is inappropriate to draw an inference that an expert report not produced would be unfavourable, a Court "... may infer that the evidence of the absent witness would not have helped that party's case" per Gibbs ACJ, Stephen, Mason and Aickin JJ, Brandi v Mingot (1976) 12 ALR 551 at 559.

21. There was no record from Drs Azoury or Ramasamy of any complaint by the plaintiff of knee pain. The first reference to this is in Dr Kitchin's report of February 1995 in which he says that his records show "...that the patient was seen initially in relation to the right knee on 23.6.89 referred then by Dr Rich." Dr Kitchin is an orthopaedic surgeon who performed an arthroscopic examination of the plaintiff's right knee and an open lateral patella release in November 1989. In his February 1995 report he says "On the history I obtained, the subluxating right patella problem was one dating from 13 years of age. I have no record of injury of December 1987. The condition which I treated would have been in existence prior to 1987."

22. The defendant says that this is most significant. The plaintiff gave evidence of an incident in her childhood at about the age of 13 when her right knee gave way when she was pushed over by a dog. In a later report Dr Kitchin says in July 1995 "The patient was operated on in 1989 for a recurrent subluxation of the right patella. This condition had been in existence prior to 1987 in that she had one episode of this when she was aged 13 years of age. The injury of 1987 caused aggravation of the condition and it would be reasonable to say that this necessitated surgical procedure for recurrence of subluxation of the patella."

23. Dr Andrews for the defendant examined the plaintiff in 1992 said "I cannot be certain as to what has really happened to the knee. It doesn't sound like a problem that I would associate with impact of the patella on the dashboard and I suspect that it is more related to a pre-existing problem. I think the exact details of what has been found at arthroscopy and the opinion of an orthopaedic surgeon should be sought."

24. The plaintiff did subject herself to examination by an orthopaedic surgeon for the defendant, but Dr Cairn's report was not produced.

25. On the evidence before me I accept Dr McEwin's opinion that the motor vehicle accident did aggravate a pre-existing condition in her right knee. I can infer from the failure to produce Dr Cairn's report that it would not have helped the defendant's case (Brandi v Mingot (1976) 12 ALR 551 at 559).

26. Damages
The role of the court in assessing damages is of course to find a quantum that will "as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation" (per Lord Blackburn, Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 (HL)) although as Dixon J has observed, "No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damages in terms of money" (Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1 at 13).

27. The medical evidence produced in the course of the hearing, and the evidence of the plaintiff, establishes to the requisite standard that this is a case where the plaintiff is to be compensated on the basis of injuries which have resulted in a moderate ongoing disability.

28. In relation to general damages, the evidence establishes that the plaintiff suffered some pain and shock at the time of the accident, and attended her general practitioner. There was little by way of treatment at this point, and indeed there was little treatment at all for her back, save some irregular physiotherapy.

29. Her knee, which I found to have been aggravated by the injury, required arthroscopy in 1989. The back and knee continue to cause ongoing pain, so as to, in Dr Cottrill's words, "reduce quality of life", but she is able to carry out normal household tasks. She is very nervous about driving or being a passenger. She is limited in sporting and recreational activity, and must be careful in lifting her infant children. I award $20,000 for general damages, $10,000 being for the past period, resulting in interest of $1,600.

30. In relation to past economic loss, the plaintiff concedes that she has left the labour market for reasons other than her compensible injuries on a number of occasions, but that she did lose one week at Mills Plumbing at the time of the accident and that her resignation from the Malaysian High Commission was attributable to her injuries, as was 3 weeks off work from the Mature Media Group.

31. These amounts, which were set out in the Statement of Particulars, are made out and amount to just below $2,000. I award $2,000 for past economic loss, with interest in accordance with the Practice Direction of $1,192.50.

32. Out of pocket expenses of $812.02 have been agreed. The plaintiff also claims $500 for past pharmaceuticals, which it is conceded is an estimate only. The plaintiff gave evidence that her medication costs have varied considerably, as at times she has been in receipt of benefits and so has obtained pharmaceuticals at a subsidised price. Her normal medication for her back, an anti inflammatory named Bruten, lasts she says for two or three months per script, and presently costs $3.70 per script. I award as a matter of discretion $300 for pharmaceuticals, resulting in a total out of pockets award of $1,112.02.

33. Future economic loss must be assessed on the basis of a buffer. I find that she has not engaged in employment for some time, but that her reason for leaving employment was unrelated to this accident. Nevertheless her ongoing disability will present a barrier to her in seeking future employment. The plaintiff has undertaken tertiary studies at Charles Sturt University towards a Bachelor of Arts degree in visual arts, and she gave evidence that it is her ambition to follow this up with a Diploma in Education to enable her to teach. With her qualifications and aptitude in music and qualifications in visual arts her ambition is to teach art to senior students.

34. This employment is no doubt open to her although her disability will be something of a barrier. She certainly is limited to light employment, and could not be expected to engage in heavy lifting or physically demanding employment. An appropriate buffer here is, in my view, $25,000.

35. This amounts to a total award of damages of $50,904.52, which I award, plus costs.