Linda Gajic v William Thomas Andrew Dawson [1996] ACTSC 73 (12 July 1996)

SUPREME COURT OF THE ACT

LINDA GAJIC v. WILLIAM THOMAS ANDREW DAWSON
No. SC373 of 1994
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 - Neck Injury - Pre-existing Neck Injury - Causation - Loss of Earning Capacity - No Issue of Principle.

March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

HEARING

CANBERRA, 26 June 1996
12:7:1996

Counsel for the Plaintiff: Mr B. Donovan QC and Mr B. Meagher

Instructing Solicitors: Scott Sheils and Glover

Counsel for the Defendant: Mr F.G. Parker

Instructing Solicitors: Deacons Graham and James

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $65,310.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injuries arising from a motor vehicle accident on 3 February 1992. The plaintiff was driving on the Kings Highway between Bungendore and Braidwood in New South Wales when her vehicle collided with that of the defendant. The defendant's liability was established by interlocutory judgment of 13 September 1994, and the matter came before me by way of assessment only.

2. There is no question that the plaintiff, who was 33 at the time of the accident and is now 37, presently suffers from a real disability to her neck, which significantly limits her earning capacity. The issue between the parties is whether this disability was caused or aggravated by the motor vehicle accident or was a pre-existing degenerative condition.

3. There is no dispute that the plaintiff had a pre-existing injury to her neck of some significance. After leaving school at 15 the plaintiff worked as a sales representative for some time before gaining employment as a receptionist. She has worked in this capacity for a range of employers, most recently at Finnemores, a transport business in Queanbeyan. She developed neck pain in 1989 while in this employment, and this grew worse. In 1990 she was absent from her job for about 6 weeks and in receipt of workers compensation in relation to her neck. X-rays were taken at this time. She attempted a graduated return to work, but her employment was terminated. She has a claim against her employer. She has not worked substantially since her employment was terminated in November 1990.

4. There is considerable conflict over the extent of neck pain in the period between her loss of employment and the motor vehicle accident, to which I will return.

5. The accident occurred while the plaintiff was driving at highway speed on the Kings Highway towards the coast. Her motor vehicle was written off, and I have no doubt that it was an impact of very considerable force. She was taken to Braidwood Hospital, but allowed to leave after some hours with a neck brace. I have no doubt that she was in very considerable pain.

6. She was driven home by her husband and went to bed. The pain continued and she saw a general practitioner the next day. X-rays were taken and pain killers were prescribed.

7. The real question in this case is whether the plaintiff's present condition is attributable to the act of the tortfeasor - that is, did the motor vehicle accident cause her present symptoms. The medical evidence in this case suggests three factors which may have caused the plaintiff's present condition - a pre-existing degenerative disease, an injury to her neck which occurred while she was an employee of Finnemore's, and the motor vehicle accident.

8. The legal consequences of a string of contributing possible causes is, of course, different from philosophical or scientific notions of causation so that, as Mason CJ said in March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509: "At law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage."

9. The law will recognise that successive tortfeasors may each contribute to a plaintiff's final injuries, and the courts "...readily recognise that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers" (per Mason CJ in March v Stramare Pty Ltd, op. cit. at 512).

10. In such a case, as in the present case, "...the law's recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are 'caused or materially contributed to by the defendant's wrongful conduct' " (ibid. at 514).

11. In making such an assessment the High Court has in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 provided guidance as to the methods to be used in evaluating degrees of probability. "When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred" (per Deane, Gaudron and McHugh JJ at 642).

12. Thus, while in looking at past issues a common law court will determine, on the balance of probabilities, whether a particular issue occurred or not, and if satisfied to the requisite standard of proof, regard that fact as proven and conclusive, it must necessarily adopt a different approach in considering hypothetical events. "Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded" (ibid. at 643).

13. It is thus for the plaintiff to establish, on the balance of probabilities, that the motor vehicle accident "caused or materially contributed to" the plaintiff's present disabilities.

14. There was a range of medical evidence before me. Reports from Dr Hutton, who had been the plaintiff's general practitioner, confirmed that the plaintiff had complained of a work related neck injury in October 1990. During cross examination the plaintiff acknowledged an incident at a stained glass craft class just before Christmas 1991 which caused "agony". I note that Dr Hutton ordered a CT scan on 9 January 1992 - that is, some three weeks before the accident. This is indicative of a serious underlying condition before the accident.

15. On 3 March 1992 Dr Chandran reported to Dr Armstrong, who had become the plaintiff's general practitioner, and concluded that the plaintiff's condition was degenerative: "It is difficult to accept that her symptoms can be attributed to her work. She has an underlying degeneration which is causing pain. Her pain is aggravated by physical activities including work. By her own admission the recent aggravation from the car accident is settling down."

16. A report from Dr Roebuck to the plaintiff's solicitors dated 20 September 1993 concluded: "Mrs Gajic sustained a cervical disc lesion originally at work approximately three years ago but aggravated this probably causing a further protrusion in the motor vehicle accident of 3 February 1992.

At the moment in total she has an 18% impairment of her neck and a 10% permanent loss of efficient use of both arms at and above the elbows from this cervical disc lesion. It would be fair to attribute half the neck impairment to her work approximately 3 years ago and the other half to the motor vehicle accident of 3 February 1992, but all of her loss of efficient use of both arms to the motor vehicle accident of 3 February 1992.

This is sufficient to give her a permanent alteration to her employability making her unfit for any but light sedentary work permanently as a result of her injuries."

17. The plaintiff was examined twice for the purposes of a medico legal report by Dr G Stubbs, an orthopaedic surgeon. His reports were tendered by the defendant, and are adverse to the plaintiff's claim.

18. He extensively reviewed the radiological reports in his report of 17 July 1995. It is useful to refer to this review in full: "A series of x-rays, CT scans and MRI studies were reviewed. The earliest were some plain x-rays going back to 18 October 1990. These presumably were taken in the course of the examination of her work related injury of that year. The plain x-rays show that there is some slight narrowing of the C5-6 intervertebral disc space and in particular, a change in the angle of the cervical lordosis at this level. The change of angle is significant and suggests intervertebral disc disease and some instability present at the C5-6 level.

The next x-ray is a CT scan performed on 9 January 1992 at the request of Dr Hutton. This is regarded as being normal. This is reasonable since there are only cross sectional views of the cervical spine and the lateral reconstructions are too small to be of any help.

The next x-ray is of 4 February 1992 and is a plain x-ray of the cervical spine taken at the request of Dr Armstrong. This shows narrowing of the C5-6 level and the development of a small anterior marginal spur on the lower border at C5. This has developed in the interval between this x-ray and the x-ray of October 1990. It is indicative of evolving intervertebral disc disease. The last set of films is an MRI study performed in August 1992. This reveals slight posterior bulging in the intervertebral disc at C5-6 level. There are no other changes." He then refers to her symptoms and says: "She has a previous history of neck problems, developing spontaneous onset of neck pain in October 1990 which resulted in six weeks off work. It is her contention that the symptoms were largely resolved and she would only suffer recurrences when riding horses. It is noted that she had a cervical CT scan performed 25 days before her second accident which would suggest that the symptomatology from her original problem was more pronounced than she remembers." His conclusion was: "In short then this lady suffers from cervical intervertebral disc disease which is degenerative in nature. It is probable that she has had an exacerbation because of the road traffic accident - whether this is a permanent or temporary exacerbation depends on demonstrating a need for increased medical care since the accident."

19. Dr Stubbs again examined the plaintiff on 22 May 1996 and reported to the plaintiff's solicitors. He confirms his July 1995 assessment in relation to impairment, in which he assesses a 5% impairment. He then said: "My assessment is that she would be able to carry out many of her former activities in regard to work. I note particularly that she does part time bookkeeping work in her husband's business. Her disease process is not incompatible with full time employment. I would caution though that she would not manage work that required heavy lifting and carrying." He then said: "The second matter to assess is causation. She already had neck problems prior to her road traffic accident. She suffers from intervertebral disc degeneration at C5-6 level. The question therefore is whether the road traffic accident has resulted in any permanent deterioration in her condition. My view is that it does not."

20. This view is broadly shared by Dr Cairns, an orthopaedic surgeon who examined the plaintiff in 1992, 1995 and 1996 for the defendant.

21. In his report of 7 June 1995 he said that the plaintiff "...would be fit for work of a light manual nature, including mixed sedentary and standing, sales supervisory or administrative work, or any other occupation satisfactorily fulfilling the criteria of light manual duties to the exclusion of repetitive bending or lifting or the limitations described above. She would be fit for such employment on a full time basis."

22. His view on causation was similar to that of Dr Stubbs: "In my opinion this incapacity is not due to the injuries sustained in the incident alleged. She provides a history of antecedent neck disability which was aggravated in the motor vehicle accident in question, and which gradually subsided to the pre accident level over the ensuing 7 months. I believe that this history is consistent with aggravation caused by the motor vehicle accident but resolving within a reasonable period of time, as reported by the claimant. Her ongoing incapacity is due to the pre-existent cervical spondylosis which had caused termination of her previous employment some 18 months before the accident occurred."

23. He confirms this view in his report of 9 May 1996 In this report Dr Cairns notes that the plaintiff presented with a history different to that contained in his previous notes.

24. The high water mark of the plaintiff's medical evidence is the report of Dr Ganora who examined the plaintiff in 1994. Dr Ganora is a consultant in rehabilitation medicine. He did not examine x-rays. He said: "The clinical picture is suggestive of continuing pain arising from the neck and associated with the effects of trauma to the neck, attributable to the motor vehicle accident. The pathology is likely to be a cervical disc strain at the C5-6 level and her continuing symptoms and disability are entirely consistent with the nature of such pathology.

It would be difficult for her to tolerate prolonged periods of sedentary work in an office capacity without experiencing significant aggravation of pain, and I would therefore regard her as relatively unfit for such work, certainly not fit for full time work of that kind but possibly capable of performing such work to a restricted extent of approximately 50%."

25. There is however a significant problem with Dr Ganora's report, in that he says that after her previous injury the plaintiff "...was off work approximately six weeks, subsequently relieved by chiropractic treatment and left with mild residual discomfort. After returning to work her employment was terminated within some days and she did not experience any problem with the neck until the current motor vehicle accident." This is inconsistent with her acknowledgement of an incident around Christmas 1991 causing "agony" and the subsequent CT investigation before the accident. Given the significance of this I cannot prefer the views of Dr Ganora over those of Drs Stubbs and Cairns. When a report is based on a history which is shown to be wrong, then "...the physician's opinion may have little or no value, for part of the basis of it has gone" per Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ, Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 649.

26. Added to this must be the views of her treating general practitioner. In his report of 13 June 1996 to the plaintiff's solicitors, but tendered by the defendant, he provided a history of his treatment and continued: "She initially suffered quite significant pain and disability with her neck which slowly subsided to pre accident levels over the 10 months after the accident. She was examined by Dr Tony Cairns in December 1992 when she described aching in her neck and shoulder girdles about 40% of the time, easily precipitated by gardening, vacuuming, hanging out washing and prolonged sitting. This was a return to the pre accident symptomatology that had caused her to lose her employment 18 months before the accident. Mrs Gajic would have been totally incapacitated for work for 7-8 months after the accident. She began to get good relief of her symptoms between September 1992 and November 1992 while having the regular massage with Suzie Bullock. From that point until the 10 months that she reported her return to pre accident levels of symptoms, she would only have been able to return to short periods of light duties. Your client's capacity for work now would seem to be related to her pre-existing degenerative changes that caused her loss of employment prior to the accident. There is no radiological, neurological or clinical evidence that the accident of 3 February 1992 has caused acceleration of pre-existing changes."

27. Viewing the medical evidence before me I am unable to come to the conclusion, on the balance of probabilities, that the motor vehicle accident of February 1992 "caused or materially contributed" to the plaintiff's present disabilities on the March v Stramare test.

28. Accordingly, I must assess her damages on the basis only of an aggravation to her underlying condition which has since generally subsided.

29. In relation to general damages, the plaintiff is entitled to be assessed on the basis of the undoubted pain and suffering during this period of aggravation. I note, however, that there has been no surgical intervention, and indeed she was discharged on the day of the accident and has had comparatively few medical interventions since.

30. I award $30,000 in this head, $25,000 being for past loss resulting in interest of $2,220.

31. For past income loss, having found that the plaintiff was only incapacitated by this injury for a period of under 12 months, during which time she was previously unemployed, I can only award a modest sum based on net earnings of $376 over that period. I award a discretionary sum of $13,000 inclusive of interest.

32. On the medical evidence I must conclude that there is little, if any, impact on her future employment. I award, however, a discretionary sum of $10,000 by way of a buffer against any residual impact on her earning capacity. Considerable evidence was given about the plaintiff's intention to go into business running a mobile food van to cater to the building trade in Canberra's developing suburbs. This was the subject of an accountant's report looking at superannuation from such a business. Given my findings as to the cause of her disabilities, however, this evidence is of no assistance.

33. There is a Griffiths v Kerkemeyer claim which is based on both past and ongoing assistance. As I have found that this accident only caused a limited period of disability, I can only make an award for the period immediately following the accident. I award $2,000 as a lump sum for this head.

34. Out of pockets were agreed at $4,090 which I award.

35. As I have concluded that there is little ongoing effect I award only a modest discretionary buffer for future out of pocket expenses of $4,000.

36. This results in an overall award of $65,310, which I consider appropriate as an overall sum, plus costs.