Ute Kuehnast v Rachael Rebecca Parkinson [1996] ACTSC 64 (14 June 1996)

SUPREME COURT OF THE ACT

UTE KUEHNAST v. RACHAEL REBECCA PARKINSON
No. SC 177 of 1994
Number of pages - 10
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Negligence - motor vehicle accident causing personal injury - liability in issue - no matter of principle. DAMAGES - assessment - whiplash injury - underlying degenerative changes in neck and hip of plaintiff exacerbated - no matter of principle.

HEARING

CANBERRA, 19 March 1996
14:6:1996

Counsel for the Plaintiff: Mr G Stretton

Instructing solicitors: Deacons Graham and James

Counsel for the Defendant: Mr F G Parker

Instructing solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $444,496.00.

DECISION

HIGGINS J This is a claim for damages for personal injury suffered by the plaintiff in a motor vehicle accident on 27 February 1992.

Liability was in issue.
2. The plaintiff was travelling west on Barry Drive intending to go to the University of Canberra to pick up a friend. She was travelling, she said, in the right hand lane as she approached the intersection with Moore Street. That intersection was then controlled by traffic lights. The lights were red facing her. Three or four cars were already stationary and waiting in front of her.

3. Her attention was then taken by a 'funny noise' behind her. She saw a car coming up rapidly behind her. Fearing that a collision was imminent, she applied the foot brake to prevent the vehicle she was in being pushed forward. There was a child in a restraint on the back seat. A collision occurred. The boot area was struck.

4. The plaintiff, having pacified the child who was, understandably, upset, spoke to the other driver, the defendant.

5. The defendant said to her, "I'm sorry, I didn't make it".

6. The plaintiff said, "We should call the police".

7. The defendant said, "I don't know what to do, I'm from Sydney".

8. A by-stander, probably another driver, then advised them to go to the police station. They were given directions. Both cars being drivable, they attended and reported the accident.

9. The defendant gave a different version of the accident. She said that she had been studying that day. She was an Australian National University student. She had lived in a University college for two years.

10. At the time of the accident, she was travelling west on Barry Drive with a view of returning to the University. It had been raining and the road was still wet.

11. She was, she said, travelling in the middle of three traffic lanes approaching the Moore Street intersection. At that intersection the left lane terminated, being a left turn lane only. As she approached the traffic lights, she observed that they were red and that there were two vehicles in front of her.

12. Those two vehicles came to a stop at the lights and she planned to stop behind them. The car with which she collided suddenly changed lanes from the left turn lane in front of her. She did not have time to brake so as to avoid the collision. She felt that when she applied the brakes hard, the wheels locked and the vehicle skidded.

13. The damage to the plaintiff's car was, she said, to the driver's side rear from the blinker assembly to the central boot area. She had only blinker damage.

14. A by-stander suggested they move the vehicles. They were moved to the centre of Barry Drive. They exchanged details. The defendant led the plaintiff to the Police Station where the accident was reported.

15. She denied that the plaintiff's vehicle was stationary when she hit it. The defendant also could not explain why, if the vehicles were moved after the collision to avoid obstructing the middle lane, they were moved so as to obstruct the right hand lane and not off the road onto the median strip.

16. That, at least, gives rise to a suspicion that the defendant was conscious of the fact that the vehicles might have been observed to be behind each other in the right hand lane following the collision. The defendant's description of the appearance in front of her of the plaintiff's vehicle did not seem persuasive. She said she was travelling at 35km/hr and was 1.5 car lengths away from the vehicle in front, behind which she had planned to stop when she first noticed the plaintiff's vehicle changing lanes. Of course, those estimates could be wrong but, again, it supports a suspicion that the defendant was not describing the event as it actually happened.

17. The details of the accident, as reported to police, do not support the defendant's version of the accident.

18. The Road Traffic Accident Report refers to the '2nd lane' as the place of the accident. That, in context, indicates the right hand lane. It refers to the plaintiff's vehicle as 'stopped', not 'slowing'. The road surface is described as 'good dry surface', not 'wet surface'. The weather was 'fine', not raining or overcast.

19. The description of the accident was,

V1 (plaintiff) stopped at intersection. V2 unable to stop in
time, collided with rear of vehicle one.

20. Whilst the report is in error in assigning the child passenger to the defendant's vehicle, it seems unlikely that, if there was a serious difference between the description of the accident given by the plaintiff and the defendant, that difference would go unnoticed.

21. It seems to me, therefore, that the plaintiff's account of the accident is the more probable. I therefore find that the accident was caused by the negligence of the defendant.

22. I am not satisfied that there was any contributory negligence on the part of the plaintiff.

Damages
23. The plaintiff was born at Hamburg, Germany on 2 May 1943. In 1963 she graduated from Domestic Science College as a qualified housekeeper. She had married in 1962. In 1963 and 1965 she gave birth to daughters. She worked as a housekeeper in a day nursery and child care centre, then as a domestic manager in a home for veterans.

24. She had two further daughters in 1969 and 1971 respectively. Between 1978 and 1979 she worked as a housekeeper.

25. After that the plaintiff completed a tertiary entrance course during 1979 and 1980. Between 1981 and 1987 she attended the University of Oldenburg, graduating as an educationalist. During that time, in 1985, she was divorced.

26. There was some difficulty obtaining employment in that field but she did, during 1988 and 1990, work for seven months as a sales manager in a shop.

27. Between 1990 and September 1991, the plaintiff was employed as a real estate marketing consultant, at first part-time and then full-time. She then left that employment to travel to Australia.

28. It will be observed that, although she had not engaged previously in long term full-time employment before the accident on 27 February 1992, the plaintiff had qualifications and skills which did qualify her for full-time employment.

29. The plaintiff did not have any relevant prior disabilities. She had no immediate reaction to the accident. Later that same day, however, whilst at dinner, she states that her "eyes went funny". She experienced a headache and nausea. She felt tightness in the neck area.

30. She arranged to see Dr David Lee, a general practitioner, the next day. By then she could not move her left arm. There was pain in the neck, shoulder and hip, mainly on the left side.

31. Dr Lee prescribed medication and recommended physiotherapy. The plaintiff was supplied with a neck collar for use when travelling.

32. She also noticed a 'numbness' in the hand sometimes extending into the fingers.

33. Her next destination was Melbourne. She needed to seek both laser and manipulation treatment. Neck pain continued, adversely affecting the plaintiff's sight-seeing plans.

34. The plaintiff travelled to Darwin but needed further physiotherapy treatment there. The collar was particularly uncomfortable in the heat. Neck pain continued.

35. On 4 April 1992, the plaintiff left Australia. She had planned to go to New Zealand and the United States of America. However, the planned three week tour was reduced to one because of the headaches and neck pain.

36. On her return to Germany, the plaintiff consulted Drs Dickmann and Goeing. She obtained temporary relief from their treatment.

37. Then, from 1 September 1992, the plaintiff secured an employment contract, in Germany, as an 'educationalist/social worker'. The duties of the position, according to the contract,

... will focus on educationalist expert consultancy with the
child care staff employed at the centre, the expert care of
equipment, as well as consultancy with the association
(Infant School Association Oldenburg Inc) during renovations
and equipping improvements, and consultancy with establishing
and running parent initiated projects and managing related
paper work.

38. The plaintiff had believed that the employment would be in the Oldenburg area. It was, however, spread over a 200km radius. Her neck was continuing to cause trouble. She was advised that the level of driving required would exacerbate her symptoms. She was given medical advice to limit her driving. However, that proved unacceptable to the employer. As a result, before she took up her duties, the contract was, by mutual agreement, cancelled. The plaintiff would have been paid DM 5,245.73 gross and DM 3,412.58 net of social security and tax.

39. Whilst the plaintiff registered for work, she obtained no further offers of employment. The authorities in Germany classified her as 30% disabled.

40. In December 1993, the plaintiff returned to Australia to prosecute her claim. She had further treatment both in Hobart and at Manuka Physiotherapy. However, the plaintiff's personal injuries claim did not then proceed.

41. In April 1994, the plaintiff received a job offer in Germany. On 15 June 1994 she obtained a one year contract with ALSO Unemployment Self-Help Reg. The gross salary for that position as 'a social adviser' was DM 4,320.66 gross, net DM 2,813.32, after tax, health insurance, pension insurance, unemployment insurance and 'payment VWL' (whatever that was).

42. That employment was full-time. However, the plaintiff suffered numerous headaches, shoulder and neck pain. She needed pain-killing drugs during the day and also physiotherapy to keep going.

43. The quantity of painkillers led to the development of gastritis. She consulted Drs Bauer and Ebbinghaus. As a result, she obtained a special mattress and car driving seat. These aids have lessened her reliance on drugs and have improved her ability to drive long distances.

44. However, from then until November 1995, whilst she was seeking work, she could not find it.

45. Her search for work was interrupted by her need to prosecute this claim.

46. She intends to continue to seek work. She remains unable to stand around and lift things as would be required of a shop manager. Even with the special seat, her ability to drive would not exceed one hour without serious neck, arm and shoulder pain.

47. Sometimes she has pain in the left hip but injections will control it. Relief will last some months before recurrence.

48. The plaintiff's main complaint is of neck pain and headaches. They occur two to three times per week, sometimes daily. The neck is always stiff, sometimes including the shoulders. There is numbness in the morning. Otherwise it occurs once or twice per week.

49. She still takes medication and has about six physiotherapy sessions monthly.

50. Prescriptions cost about DM 3-6 monthly. Visits to Dr Bauer cost DM 5. Each physio visit costs DM 16.

51. She had previously had problems of a lesser frequency in the left hip.

52. She no longer engages in social pursuits such as skiing, dancing, and rock and roll. Housework is 'not that good'. She obtained assistance when she was working.

53. Her health insurance still needs to be paid, which costs DM 200 monthly whilst she is not employed. She does not now pay into her pension scheme. That may have some long-term consequences but the evidence does not address that question.

54. Since the accident, the plaintiff has taken an interest in further education. She would like to do a PhD. Reading a lot does cause a flare-up of her symptoms. She still would like to travel but cannot now tolerate 24 hours continuous travel.

55. She also revealed that in October 1993 she broke her right ankle. Then, in January 1994, she broke her left ankle. She had fainted. However, there is no evidence that these events were contributed to by the effects of the accident.

56. The medical evidence was not challenged. The diagnosis was that there had been hyper-extension injury to the neck and shoulder strain. There had been spondylosis at C4/5, C5/6 and C6/7 levels. Dr Dickmann, a neurologist and psychiatrist, considered that there was sensory compression syndrome of the nerve root C7 left.

57. Dr Robson, neurosurgeon, considered that, at least without surgery to repair damage to discs in the neck, the plaintiff's condition will continue.

58. The accident did not cause degenerative changes in the plaintiff's neck or her left hip. It did stir up the hip and exacerbate its condition. It caused the neck to become symptomatic and exacerbated the underlying degenerative changes. But for the accident that might never have occurred. The fact that a plaintiff is more susceptible to serious harm from a relatively minor impact does not reduce the defendant's responsibility for the consequences. It may, of course, have an adverse effect on the assessment of unfavourable vicissitudes.

59. In this case, the consequences of the accident have seriously affected the plaintiff's enjoyment of life. She is significantly disabled. I would assess general damages accordingly at $80,000.00. I would attribute $40,000.00 thereof to the past. Interest on $40,000.00 from 27 February 1992 to date is $9,946.00.

60. Out-of-pocket expenses were not in dispute, assuming liability to be found. The Australian component was $3,447.96. The German component was DM 9,082.39. I was asked to assume an exchange rate for $A to DM of 1.1379 (buying) and 1.1208 (selling). This award must be in Australian dollars and converted then to Deutschmarks. To compensate the plaintiff for her expenditure (or incurring of liability) in Deutschmarks, the rate for purchase of Deutschmarks is, I think, the more appropriate. That results in an award of $7,982.00 for the German component.

61. Travel expenses are also claimed, ancillary to medical and treatment requirements. That seems reasonable. I allow the Australian component at $379.15 as claimed. The German component has already been converted to Australian Dollars. I allow $396.14 accordingly.

62. No interest is claimed for any of those expenses which might have been actually outlaid.

63. Future medical expenses including physiotherapy and medication is claimed at DM 6.46 per week. The total for the plaintiff's life expectation, allowing the same on the 3% tables, would be DM 6,563.36. I reduce that for contingencies to DM 5,250.69 (20% reduction). The Australian equivalent is $4,614.00. The 20% reduction takes account of greater than usual adverse health risks.

64. As to past wage loss, the net monthly wage should be the gross sum, less only the tax thereon. Deductions for voluntary or discretionary purposes, for example, child care, mortgages, health insurance and the like, should be ignored. Thus the remuneration for the plaintiff's position with the Infant School Association would have been DM 4,356.07 monthly or DM 1,005.25 weekly.

65. The subsequent employment contract with ALSO was, on that basis, DM 3,768.16 monthly or DM 869.58 weekly. The plaintiff's particulars claim an earning capacity of DM 853.15 per week. The past wage loss was calculated by applying an earning rate of DM 3,412.58 monthly. That would have been DM 787.52 weekly.

66. Those rates are less than the apparent rate warranted on the assumption that the employment contracts the plaintiff obtained represented her capacity for full-time employment. They do not include allowances for superannuation and health insurance. I accept the earning rates particularised on that basis.

67. The amount the plaintiff could have earned net of the sum she did earn would be DM 126,631.42 up to the date of judgment. The plaintiff's employment history persuades me that there may have been significant gaps for personal reasons which would have reduced the average net earnings. I consider a further discount of 12.5% would allow for that. I therefore award DM 110,802.50, that is, $97,375.00 for the past wage loss. The award of interest thereon is claimed from 1 September 1992 to 30 June 1993 at 7.5% and to date at 5% on that figure. That yields a figure of $20,449.00.

68. For future wage loss, the claim is to age 60, approximately eight years. That, in itself, contains an element of discount having regard to the chance that the plaintiff might have worked until age 65 or, at least, beyond 60. However, for reasons given by the plaintiff in evidence, it seems that German labour market conditions generally make it more difficult for older workers to obtain employment. They are more expensive to employ. Given the plaintiff's desire to travel from time to time, it seems to me that the figure to age 60 should be further discounted for contingencies by reason of that general factor and by reason of the residual capacity of the plaintiff to earn. I consider that as the plaintiff becomes more adept at coping with her disability and puts this case behind her and proceeds with her life, her residual earning capacity will be reflected at more than her earnings since the accident would indicate.

69. I have noted that the plaintiff had not had a steady work history before 1990. However, she was in constant employment until September 1991. Further, had she been able physically to perform the duties of the position she was engaged to perform in July 1992, as from 1 September 1992, I consider she would from then on have been in constant employment in that or a similar capacity until retirement at least to the extent she desired to be. It is, therefore, legitimate to use the level of earnings from her employment contracts following the accident as a guide to her earning capacity but for the injury.

70. I consider her residual capacity, including other contingencies, require a 40% discount of the total value of the lost earning capacity, having regard to the choice of age 60. The figure of DM 317,371.08 will, therefore, be reduced to DM 190,422.64, that is, $167,346.00.

71. The sums claimed for superannuation credits lost should be allowed subject to similar contingencies. For the past, I award DM 5,687.00, or $4,998.00. Interest thereon as for lost earnings will be allowed at $1,050.00.

72. For future benefits lost, I award DM 52,927.00, or $46,513.00.

73. It is not clear to me, and the evidence does not indicate, what benefits the plaintiff has forgone or will forgo by making the reduced health insurance contribution. If the same benefits are accorded for the lesser contribution, then no loss is sustained. The evidence does not exclude that hypothesis. Accordingly, I do not make an award for this item.

74. In summary, I award,

General Damages $80,000.00
Interest on past loss (27/2/92 to 30/6/93
at 7.5% thereafter at 5%) $9,946.00
Out-of-pocket expenses including travel $12,205.00
Future medical expenses $4,614.00
Past wage loss $97,375.00
Interest thereon (1/9/92 to 30/6/93 @ 7.5%
thereafter at 5%) $20,449.00
Future wage loss $167,346.00
Past superannuation loss $4,998.00
Interest thereon (1/9/92 to 30/6/93
at 7.5% thereafter at 5%) $1,050.00
Future benefits lost $46,513.00
TOTAL $444,496.00

75. I direct judgment for the plaintiff in the sum of $444,496.00.

76. I will hear the parties as to costs.