Maryann Rose v Chang-Sup Kwow [1996] ACTSC 56 (6 June 1996)

SUPREME COURT OF THE ACT

MARYANN ROSE v. CHANG-SUP KWOW
No. SC 785 of 1993
Number of pages - 10
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Damages - injury to back in motor vehicle accident on holidays in Queensland - plaintiff part-time Auscript typist - inability to accept work that was or might have been offered - frustration and resentment leads to increased perception of pain and disability and marriage problems - repeated treatment at pain clinic gives temporary relief followed by increased symptoms - plaintiff certified fit for two days work per week only - employer ceases to engage her.

Damages - various heads - out-of-pocket expenses not agreed - some items claimed not apparently due to injury or not reasonably incurred or excessive - disallowed.

Damages - costs - documentary evidence tendered to support claim for loss of superannuation does not support claim - claim abandoned - copious documentary evidence from accountants of no use in assessing loss of earning capacity - defendant not liable for costs.

HEARING

CANBERRA, 20 and 21 November 1995
6:6:1996

Counsel for the plaintiff: Mr. G. Stretton

Solicitors for the plaintiff: Snedden Hall and Gallop

Counsel for the defendant: Mr. J. Carr

Solicitors for the defendant: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $140,133.00.

DECISION

MILES CJ This is an assessment of damages for personal injuries.

2. On 28 December 1989, the plaintiff then aged 37 years was injured whilst on holidays in Queensland. The vehicle which she was driving was struck violently in the rear by a vehicle driven by the defendant. She felt "terrible pain" in her left side and thought her back was broken. She was assisted out of the vehicle eventually by ambulance officers and taken to the Southport Hospital. She was admitted, in mild distress, given pain-killing and anti-inflammatory medication and remained there for some hours. The pain settled and she returned the same day to the apartments where she and her family were staying. Severe pain in her back continued and a local doctor was summoned. He prescribed stronger pain-killing medication. The plaintiff remained with the family in Surfers Paradise (there was trouble getting the car serviceable for the return journey) until 14 January 1990 when they returned to Canberra. The journey was painful with pain radiating down both the plaintiff's legs.

3. At the time of her injury the plaintiff was employed as a steno-typist with Auscript, originally the Commonwealth Reporting Service. Her job was to transcribe reporters' notes and, later, audio-tapes. She had held the job for many years, first on a casual basis, then in 1986 full-time and in 1987 back to part-time. Before she had gone on holidays she was averaging nearly five days a week although in cross- examination she said it could have been less. She had to hold herself available for at least three days a week. She had no difficulty coping with that work. She had had some neck pain prior to going to Surfers Paradise, but that has not loomed as a live issue in the case.

4. The plaintiff did not go back to work immediately upon her return to Canberra. She had difficulty shopping and performing household chores and even standing or sitting because of pain in the lower back, groin and left leg. She continued on the medication obtained in Queensland until she went to her local doctor, Dr Voon, on 25 January 1990.

5. The plaintiff returned to work on 2 February 1990 and commenced a physiotherapy course on Dr Voon's recommendation a few days later. According to her evidence, the physiotherapy relieved the pain in her left foot, but not in the back, left shoulder or neck and did not relieve headaches which had developed. She said that she reduced her working week to three or four days a week, depending on how bad she felt.

6. The plaintiff was active in various sports, particularly basket-ball. According to her evidence she tried basket-ball once and once only in this early post-injury stage. She said that she did not last five minutes because of the pain. The rest of the evidence suggests, however, that she persevered with coaching in basket-ball. She had also been an exponent of one the martial arts, but she did not return to that activity and gave no evidence of being particularly concerned about it.

7. In March 1991 some vacancies for permanent positions within Auscript were advertised. The plaintiff decided not to apply for any of these positions because they involved handling equipment for the purpose of recording the evidence taken before tribunals. She stated in her evidence that had her health allowed her, she would have applied and expected to be successful and that the opportunity had come at a time in her career that, but for her inability to lift, would have led to her acceptance into the permanent Public Service.

8. Dr Voon referred the plaintiff to Dr Ashman, an orthopaedic specialist, in April 1991. Dr Ashman arranged for an MRI scan. No permanent or major injury to the spine was detected. Dr Ashman advised the plaintiff to increase her level of activity and to practise regular exercises. Whether or not she carried out this advice, the plaintiff's condition did not improve. She started using a cushion at work to support her left foot. She complained of the inability to wear high-heels or jeans. Because of the increase in complaints of pain and restriction of movement, Dr Voon referred the plaintiff to Dr Edwin Cassar for investigation and treatment.

9. Dr Cassar is a consultant physician and director of the Thermography and Pain Management Clinic at Garran. Dr Cassar conducts thermographic studies for examination and diagnostic purposes. The clinic administers a type of laser therapy (apparently a substitute for physiotherapy) which Dr Cassar described in evidence as a major breakthrough to chronic pain sufferers who, he said, "are otherwise refused treatment by surgeons because they cannot give them a guarantee of a successful outcome". The thermographic studies confirmed to Dr Cassar that the plaintiff's symptoms, which by then included recurrent spasms in the left knee and thigh, were due to uncomplicated injury to the lower back, without disc protrusion or rupture and not requiring surgery but amenable to laser therapy.

10. During February 1992 the plaintiff was subjected to the laser beam being directed to the various parts of her body where she felt pain. That was followed by acupuncture treatment and manipulative therapy.

11. The plaintiff said in her evidence that she had to take herself off the work roster for everyday she attended the clinic.

12. During this period the plaintiff was also subjected to cognitive therapy and unspecified pain management techniques on the part of Mr. E. Petroni, a clinical psychologist, who is part of Dr Cassar's clinic.

13. All this seems to have worked, for a while. Mr. Petroni thought that the plaintiff had shown a positive attitude throughout the period of treatment and achieved a remarkable recovery. He nevertheless issued the caution that the intensity and frequency of pain in the future would still depend on the effects of the physical injury.

14. By June 1992 Dr Cassar felt that the plaintiff would be able to resume contact sports and manage a minor inconsequential but stable partial incapacity of the back and pelvis.

15. But such was not to be. The plaintiff did indeed feel somewhat improved and she increased her workload to four days a week. But by April 1993 she was back to the condition which she had been at the beginning of 1992. She did not resume her sporting activities as Dr Cassar had hoped. She was, according to him, able to walk with comfort only by the use of special footwear support which he arranged. She complained to Dr Cassar at this stage that she could not sit for more than an hour.

16. Dr Cassar embarked upon further treatment. This time it involved high dosage medication (including the controversial drug Prozac), an exercise regime, laser therapy and acupuncture from April to August 1993. In his report of 8 December 1993 Dr Cassar said that the treatment had stabilised the condition overall. However, he was not optimistic and thought that unbearable pain might recur and prove intolerable.

17. During the period of treatment the plaintiff's working hours were reduced to half days but at the conclusion of treatment were increased back to three full days per week. However, once again the relief provided for the treatment proved only temporary. Dr Cassar appears to acknowledge that the plaintiff's right knee, which was by now giving trouble, did not benefit. He even suggested that another opinion be sought with a view to arthroscopy. How the plaintiff's right knee began as a major source of trouble is not clear.

18. Dr Voon referred the plaintiff once again to Dr Ashman in August 1993, who concluded that the knee symptoms were probably due to chondromalacia (with no evidence expressed as to the origins) and no further investigation or treatment in that respect was likely to be of benefit. Further investigations as to continuing complaints about the left shoulder and the back pain were inconclusive.

19. Dr Voon reported at the end of 1993 that the plaintiff was complaining of stiffness of all the areas mentioned, but with the neck pain now extending to the fingers and thumb of the left hand and back pain radiating to the left ankle.

20. There was also growing marital discord between the plaintiff and her husband. Dr Voon considered, no doubt with justification, that the plaintiff's lifestyle and capacity to work full-time were limited by pain. The plaintiff said in her evidence that she refused work that was available to her beyond three days per week.

21. In April 1994 the plaintiff returned to Dr Cassar for a third lot of treatment after a bruise appeared in her back for no reason and after she felt that the inside of her back had "exploded". In July 1994 the laser treatment by Dr Cassar was augmented by physiotherapy for the left shoulder and the use of a TENS machine for the lower back. Again, this afforded the plaintiff temporary relief. Acting on Dr Voon's advice, the plaintiff also tried an anti-inflammatory ointment, Orudis, but it had unpleasant side effects and she changed to Voltaren tablets.

22. In February 1995 the plaintiff returned to Dr Cassar for another lot of laser treatment followed by physiotherapy and traction over a period of three weeks. Again there was limited relief.

23. Dr Cassar, in a report of 5 April 1995, expressed the view that the failure of the plaintiff to maintain regular back exercises and physiotherapy had led to "secondary back weakness, mechanical back disorder and worsening of the situation both in degree and radiation of back pain". He added, however, that the pain had "fortunately been eased" through the treatment instituted in his pain clinic. In May 1995 Dr Cassar instituted yet another course of treatment which continued into June and July but with little relief. On the other hand, the plaintiff told Dr Voon on 20 June 1995 that there was an excellent result and on 27 July an excellent recovery of her left femoral region. She was working three days a week at this stage and becoming more depressed. However, she did not like to take anti-depressant medication. Dr Voon noted, perhaps significantly, that "she can only manage small amounts of dusting, ironing, cooking and keeping up her interest in basket-ball coaching", which of course implies that these activities were not impossible for her.

24. The plaintiff's solicitors sent her for an assessment to Dr Saboisky, consultant psychiatrist, on 13 September 1995. This was the only medico-legal evidence in the plaintiff's case. Dr Saboisky reported to the plaintiff's solicitors that she told him that she had to give up basket-ball in 1990 because of pain. Dr Saboisky also elicited a new factor relating to recurrence of pain following the temporary easing after the treatment by Dr Cassar in 1991, namely that it occurred at the same time as she discovered her husband's infidelity. She also told Dr Saboisky that before the injury she was "grossing more than $1,000 per week". Dr Saboisky stated his opinion in somewhat unclear and guarded terms that the "marital difficulty does flow from the psychological and physical problems of her motor vehicle accident and in turn has led to an exacerbation of pain behaviour". At the time of this examination Dr Saboisky did not consider the plaintiff to be clinically depressed but he thought that in retrospect she had had "an adjustment reaction with a depressed mood in relation to the exacerbation of pain and also in response to finding out about her husband's dalliance" with no need for psychiatric treatment.

25. In September 1995 Dr Voon thought that the plaintiff's condition was such that she should not be required to work more than two days per week and he so certified. Those in charge at Auscript varied the plaintiff's terms and conditions of appointment to allow the plaintiff to continue on the roster and make herself available for only two days per weeks during a trial period of one month. During that trial period the plaintiff continued to experience low back pain during the use of a foot pedal whilst carrying out transcribing work. Dr Voon advised Auscript accordingly and suggested a further month of two days a week. Mr. Rodgers, Regional Manager of Auscript, took the view that the plaintiff should not be allowed to continue to undertake duties which would aggravate her condition or slow her recovery and accordingly she was considered "unavailable" from 2 November 1995 until there was medical opinion that she was fit to return to transcription duties, including the use of the foot pedal. As at the date of the hearing the plaintiff remained in effect suspended from duty without income.

26. Apart from the opinion of Dr Saboisky, the medico-legal evidence was presented on behalf of the defendant. It is not of much assistance. The evidence is restricted to reports from doctors who did not see the plaintiff until mid-1995 and their opinions all seem to be predicated on their rejection of the genuineness of the plaintiff's complaints. Should the Court decline to accept the plaintiff as a witness of truth, it would follow that the Court's findings would happen to coincide with the doctors' opinions. If the Court accepts her as substantially genuine, then the opinion of these doctors who dismiss her complaints as not genuine, can be of very little weight.

27. Dr Peter Battlay, a surgeon, in his report of 3 April 1995 stated that the plaintiff did not develop pain in the left hip until 1991 and that it was caused by walking. He recorded a history of positive improvement after the first lot of treatment by Dr Cassar with complete resolution of the hip pain and it was not until twelve months later that she developed pain in the left leg. The second lot of treatment by Dr Cassar beginning November 1992 resolved her backache and cured her left knee problem. The treatment in 1994 took the pain away from the leg but never fixed the buttock pain although she has been able to put up with the pain ever since.

28. The history so elicited concludes with the statement that the laser treatment "took the pain from her foot but she was left with a soreness in her right hip and still cannot move the right hip". At the time of examination the plaintiff was complaining of pain in the left shoulder joint which prevented her working more than three days a week, together with pain in the right buttock and groin and in the left leg.

29. In a second examination on 14 September 1995 the plaintiff told Dr Battlay that the pain in the left shoulder was caused by having to type in an awkward position because of pain in the left sacroiliac joint. Pain in the back and in the region of the left sacroiliac joint appeared then to be causing most of her distress. The examination produced what Dr Battlay called "exaggerated responses". Dr Battlay thought that the injuries sustained in the motor vehicle accident had resolved long before then and that although the plaintiff might have physically based aches or pains form time to time, they were exaggerated and not related to the motor vehicle accident. However, Dr Battlay did not say what the exact nature of the physically based pain was.

30. Dr Champion, a psychiatrist, reported on 17 May 1995. His summary of the history was that apart from back pain and giving up skiing and karate, the plaintiff was able to live a fairly normal life. That summary does not accord with the effect of the evidence as I see it.

31. Dr Champion thought there was no evidence of anxiety or other psychiatric disorder and that the plaintiff gave no indication of physical or emotional distress apart from two occasions when discussing her marriage problems.

32. Although it was outside his field of specialty, Dr Champion offered the view that the thermographic findings of Dr Cassar were inconsistent with the evidence based on the more conventional investigative techniques. He conceded, however, that the thermography as a diagnostic tool was "controversial" and that the injury may have acted as a precipitant in her marital problems, although he thought it unlikely. Dr Champion seemed to think that the continuation of deterioration in the marriage relationship made it unlikely that the injury played any causative role. This does not seem to me to be a conclusion based on medical expertise and, in my view, the reason given for it is, as a matter of common experience and logic, invalid.

33. The plaintiff also saw Dr Cameron for the defendant about this time, on 14 July 1995. Dr Cameron is a member of the Australian Occupational Medical Group, consultants in occupational medicine and rehabilitation. (Dr Battlay mentioned a Dr Cameron of Florey, a "new general practitioner" whom the plaintiff saw in August or September 1994.) Dr Cameron had documentation from the solicitors and his history reads as if it incorporates some of the documentation. In addition, however, he reports that in 1991 the plaintiff "frequently tried to play basket-ball". Such a statement on the part of the plaintiff is unlikely, in my view. What is more likely is that the doctor has misunderstood what he was told, or noted it down incorrectly. At the time of examination the plaintiff was "working three days a week as usual" and "continues to coach basket-ball weekly". Dr Cameron concluded that the physical examination carried out revealed obvious exaggeration of symptoms and no objective evidence to support them. He expressed the view that Dr Cassar's treatment had been inappropriate and of little apparent benefit. The examination was thorough and there was no complaint about either knee. Dr Cameron's view was quite firm that the plaintiff was fit for her normal employment from within a few weeks of injury and remained fit for that or any other employment with no requirement for rehabilitation at any time.

34. My own assessment of the plaintiff after seeing her in the witness box over an extended period and considering the whole of the medical evidence, is that she is on the whole genuine in her complaints. Her husband's evidence supported her in this regard. However, the pattern of her complaints is not entirely consistent and I also think that this and some of the medical evidence suggests a strong functional element in her claim. The accident was one that clearly had a psychological effect upon her from the beginning, occurring as it did away from home and requiring a long and painful journey back to Canberra. I think that she was genuine in declining to apply for a permanent position in 1991 because of what she thought were her physical limitations and that she has continued to resent what she regards as a denial of career opportunity. I think it probable also that her irritability was due to this frustration, her inability to carry out the recreational and sporting activities that she liked so much, which in turn precipitated the marriage difficulties and it all compounded, so that ultimately she is and remains very resentful of the way in which she sees the accident affected her domestic and working life.

35. Whilst I think that it was probable that without the injury she would have applied for and been successful in obtaining an ASO 2 position in the Public Service (she would not have gained an ASO 3 position), it is by no means clear that a full-time position at that level would have been more remunerative than if she had simply followed a part-time career with payment at daily rates. The evidence in this respect, in my view, should be approached on a broad basis. I am not convinced that in the year or so following her return to work on 2 February 1990 there was much actual loss of earning at all, although it is likely that her earning capacity was exercised only with pain and discomfort. However, following her decision not to apply for permanent appointment, the conflicting emotional factors led to a greater perception of her pain and general discomfort and then to the pain management clinic of Dr Cassar. A paradoxical situation was then created. When she submitted to a course of treatment at the clinic, she felt subjectively better for a while, but the benefits wore off within a matter of months so that within a year the pattern was repeated with her feeling progressively worse each time there was a relapse after respite following a period of treatment. In the end, she finished up as she was at the time of the hearing, with those who have known her over a long period of time, particularly Dr Voon, quite pessimistic, and those who were seeing her for the first time puzzled and dismissive of her complaints. Shortly before the hearing of course she suffered the severe blow of being placed on the unengaged list which meant that she was not being offered any work at all and was in effect regarded as unemployed. Auscript will not take her back until the medical opinion supports her working three days a week without her having to take excessive sick leave. It is difficult to see how she can break out of the predicament she was in at the time of the hearing.

36. Although there was an abundant amount of mathematical evidence in the case in relation to her loss of earning capacity, with various hypotheses providing various alternative assessments for Macquarie Reporting Services to act and advise upon, in the end I think that the question of loss of earning capacity should be approached quite simply, and counsel for both parties appear to take the same approach. In my view, the evidence establishes as a reasonable likelihood that from about April 1990 if the plaintiff had not been injured she would have been offered and worked one more day per week than has been the case. On the rate she was being paid on a casual basis (about $130 per day) I think that the loss is best calculated at the sum of $100 net per week. This is a very approximate sum and does not bear being further adjusted by reasons of contingencies, half days work here and there and the like. I do not think that it is necessary to discuss all the other alternative methods of approach. In any event, they tend to come up with much the same sort of result on my findings as to actual disability. I would award the plaintiff a global figure of $30,000 to represent past loss of earning capacity. Interest is allowed on the past component of loss of earning capacity of $12,000.

37. For the future, the plaintiff presents as one who is unemployed but not unemployable. She is quite capable of working two days a week as a stenographer on any view of the evidence, but Auscript is not prepared to employ her on that basis. But although she might not have considered it and although no doubt jobs are hard to get, the plaintiff's earning capacity but for injury is not restricted to the plaintiff's pre-injury employment and her present earning capacity is not to be regarded as restricted to her looking to Auscript for a job for the rest of her life. She presents and impresses the doctors as a pleasant and intelligent person. I think it reasonable to consider that once the case is over the functional aspects of her disability may well resolve and she will look to use her experience and skills in a way that might never have occurred to her previously. For the immediate future I would assess her loss of earning capacity to be equivalent to about two days per week, about $250 per week, and allow a sum based on that for the next six months. The position thereafter must be regarded as quite conjectural. I am not convinced that the plaintiff's physical incapacity will continue indefinitely as a matter of probability. I think that all that can be done is to provide a sum which will reflect the unlikelihood that the plaintiff's muscular ligamentous injury in 1979 will continue to affect her earning capacity for the rest of her life. Similar considerations will apply of course to the award for pain and suffering and loss of enjoyment of life in the future.

38. For future loss of earning capacity I award the sum of $32,000.

39. For pain and suffering and loss of enjoyment of life I award the sum of $45,000 and I apportion $25,000 as to the past. Interest on the past component of pain and suffering I allow at $3,000.

"Out-of-pocket" expenses
40. The plaintiff's claim for medical, pharmaceutical and allied expenses are set out in great detail in a schedule. They are not accompanied by vouchers, accounts, receipts or the like. Some of them are obviously medico-legal expenses. Not all of them are obviously reasonably incurred. I have no idea, for instance, whether a CT scan of the brain on 11 May 1995 at a cost of $578 was reasonably incurred. Dr Voon, on the face of it, appears to charge more than most general practitioners, at least as far as his charges for the plaintiff are concerned. Dr Voon and Alice Chu, the physiotherapist, charged "accountancy fees" which would not appear to me to be the responsibility of the defendant. Apart from the pharmaceutical expenses, the plaintiff has paid hardly any of the expenses that she is claiming. There is an impression that many of the expenses may be charged simply because the plaintiff looks like recovering damages in a personal injuries accident. Dr Cassar, in particular, has over $8,000 awaiting the outcome of the case. I allow expenses paid by the plaintiff of $1,008.77 and of the nearly $16,000 unpaid, I allow $12,000, a total of $13,008.77.

Travel expenses
41. The plaintiff has assiduously calculated over nine typed pages the number of kilometres she has travelled between her home and Dr Cassar's clinic between 3 February 1992 and 3 March 1995. She claims travel expenses at 56.9 cents per kilometre which somebody had apparently discovered to be a figure which is allowed for whatever purposes by the Commissioner of Taxation. I presume that the plaintiff drove her own car for the purposes of the claim. She includes visits for "relaxation", "M3 Laser", and "review". Some of the expenses have the appearance of being of a medico-legal nature, but in the absence of a positive challenge, I accept the figures as representing a reasonable cost incurred by way of reasonable treatment for her injuries. I note that she does not claim similar expenses for visiting other doctors such as Dr Voon. The total is $1,124.24.

Loss of superannuation benefits
42. A claim was made under this head at the hearing although not in the particulars filed with the statement of claim or afterwards. Documents were tendered in evidence to support the claim. I examined the documents during the course of the hearing. They did not support any claim for loss at all. During the course of counsel's closing address this claim was abandoned. It is not necessary for me to publish the reasons which I had prepared. It is necessary to say, however, that the plaintiff should not recover costs in respect of this aspect.

Future out-of-pocket expenses
43. The plaintiff claims for continuing medication and treatment. I do not think that she would have more than one further bout of treatment from Dr Cassar, if she has that. I do think, however, that her medication is likely to continue for some time into the future. Her present medication costs about $5 per week. I would allow for monthly visits to her general practitioner at $35 per visit for the next five years or so, I would allow a round figure of $2,000 for pharmaceutical and general practitioner expenses together with $2,000 for Dr Cassar's clinic. I am not convinced that any costs recovered after that period would be referable to any condition which itself is referable to her condition.

44. The plaintiff's damages may be summarised as follows:
Past loss of earning capacity $ 30,000.00

Interest on past loss of earning capacity $ 12,000.00
Future loss of earning capacity $ 32,000.00
Pain and suffering and loss of enjoyment of life $ 45,000.00
Interest on past component of pain
and suffering and loss of enjoyment of life $ 3,000.00
Out-of-pocket expenses $ 13,008.77
Travel expenses $ 1,124.24
Future out-of-pocket expenses $ 4,000.00
Total: $140,133.01

Globally, this appears to be an appropriate amount having regard to the various imponderables in the plaintiff's case. I order that the plaintiff have liberty to enter judgment for $140,133.00.

45. Unless the parties wish to be heard I order the defendant to pay the plaintiff's costs on a party and party basis, except for the claim for loss of superannuation benefits and the costs of engaging Macquarie Reporting Services.