Christine Helen O'Brien v Kenneth Michael Woods [1996] ACTSC 84 (2 August 1996)

SUPREME COURT OF THE ACT

CHRISTINE HELEN O'BRIEN v. KENNETH MICHAEL WOODS
No. SC600 of 1994
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 - Soft Tissue Cervical Spinal Injury - Migraine Headaches - Causation - Loss of Opportunity - No Issue of Principle.

Laird v Smith (unreported, Supreme Court of the ACT, Miles CJ, Gallop and Higgins JJ, 31 May 1996)
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

HEARING

CANBERRA, 17 July 1996
2:8:1996

Counsel for the Plaintiff: Mr R. Mildren

Instructing Solicitors: Clayton Utz

Counsel for the Defendant: Mr C. Leahy

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $74,281.50.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages arising from a motor vehicle accident on 17 January 1990. Liability was not in issue and the matter proceeded by way of assessment only. The accident occurred at the intersection of Hindmarsh Drive and Athlon Drive at Woden in the Australian Capital Territory. The plaintiff was attempting to lawfully execute a right hand turn from Hindmarsh Drive to Athlon Drive in accordance with a green arrow, and was struck by the defendant's vehicle which proceeded against a red light travelling west along Hindmarsh Drive. It was undoubtedly a collision of considerable impact - the plaintiff gave evidence that her vehicle was "boomeranged" and had begun to split apart.

2. The plaintiff was born in March 1959 and moved to Canberra with her family in 1966, attending Aranda Primary and then completing her schooling to year 10 at Canberra High School in 1976. The plaintiff first worked as a pharmacy assistant, and then in 1977 worked for Medibank. Her first son was born in 1980, and she left the workforce until she started some casual cleaning work in 1981. In 1983 she commenced in a clerical position in the Department of Foreign Affairs. She left work again when her daughter was born in February 1984, but obtained work again in November with the Administrative Appeals Tribunal. In April 1985 she moved to Defence, working 5 days from 9am to 3pm. In all these jobs she had worked in clerical duties and, in particular, in finance areas.

3. The plaintiff's first marriage broke down in 1985, and she became a sole parent. She undertook a secretarial course at TAFE and in March 1986 entered the Australian Public Service with Security in a full time position. This continued until March 1989 when she resigned from her full time position, and started working part time, both as a shop assistant in a book store and with the Public Service. At the time of the accident she was working for Social Security for 20 hours per week, working from 9am to 1pm for 5 days. This employment was on a contract basis, and at the time of the accident the plaintiff's contract was near to its end, although she gave evidence that it was her expectation that she could have obtained further, similar, work.

4. The accident occurred as the plaintiff was returning from her employment to her home in Tuggeranong. The plaintiff was very shaken by the impact and says she was distressed and crying after the impact, which she described as "heavy and very strong". The ambulance officers who attended suggested the plaintiff go to hospital for shock, but by this time the plaintiff's spouse, who had been contacted by police, had arrived, and took her home. The plaintiff said that she felt that she had been "through a wringer" and she just wanted to lay down. Her sister came to the home, and suggested that the plaintiff did need to attend hospital, so that evening the plaintiff was driven by her spouse to the Accident and Emergency Department of Woden Valley Hospital. Here she was x-rayed and provided with analgesics.

5. The plaintiff remained at home and rested, but continued to suffer pain. She attended her general practitioner on 22 January, and continued to see him through the first half of 1990. She did not return to work until her doctor certified her as fit to do so in June of that year. In his report of 29 June 1990 Dr Richards said:
"On examination on 22 January 1990, she had restriction of

rotation of both her cervical and thoracic spine to the right, as
well as some restriction of cervical extension and left cervical
rotation. She was tender to palpation of her spine from C2 to L2,
maximally over C2, C7, and T6. The cervical facet joints were
tender from C2-6 on the left and C5-6 on the right. She had weak
grip in her right hand, but upper limb reflexes were intact. Her
trapezius and levator scapulae muscles were tender, as were the
parathoracic muscles, especially at the level of T6-7 on the
right. I prescribed an anti-inflammatory drug and referred her
for physiotherapy."

6. Dr Richards records a series of visits until 14 May 1990 when the plaintiff was

"...still having twice weekly physiotherapy, and felt 'heaps
better', although she was still getting frequent headaches,
particularly with ironing, hanging out washing, or cooking. On
that occasion, all cervical movements remained restricted,
particularly right cervical rotation. I issued a certificate to
return to work on 4 June 1990".

7. Dr Richards made reference to previous episodes of neck pain and headache following a motor vehicle accident of March 1987, but concluded that the 1990 injuries were more severe and over a different area so that, in his opinion, they were not merely an aggravation of the previous injury. He concluded:

"In my opinion Ms O'Brien sustained significant soft tissue
cervical spinal injuries from the motor vehicle accident on 17
January 1990. These injuries have prevented her from being
employed in her usual jobs since the accident."

8. Following this advice the plaintiff looked again for work, and obtained one day a week at a bookshop in July 1990. Later that month she obtained another 20 hours per week position at Social Security in her old section. She said that this worked well as her workmates were familiar with her difficulties, and she could work well and vary her duties so as to avoid prolonged periods in one position over a computer terminal.

9. When this position finished in about September she looked for other positions both in the Public Service and as a shop assistant, and in November she obtained contract work at the Department of Veterans Affairs. This was a different type of work, as a clerical assistant in the mail room and registry, and involved quite heavy work, which the plaintiff found to be too much for her. She went home distressed, and resigned the position after two days.

10. The plaintiff has not worked in a Public Service position since, but has worked in a variety of part time shop assistant type positions at a bookshop and a newsagency. She lost the newsagency position in May 1992 as a result of a retrenchment, but obtained a position at a baby goods store working on Saturdays and one day a week in September 1992. She left this position in April 1993 when the store required her to work both days on the weekends - this would have made access to her older son, who lives with her former husband, impossible. She says that she has not worked since, apart from some work for her present partner's cleaning business, which she said involved answering telephones.

11. The plaintiff said that it would have been her intention to continue working in part time positions, preferably in the Public Service, until 1998, when her youngest child, who was born in 1993 reached school age. She would then have planned to return to work full time. The plaintiff's claim is that the accident has precluded her from both part time work and eventual full time work, as a result of neck pain and headaches.

12. Dr Richards certified her as fit to return to part time duties in June 1990. She attended his rooms in August 1990, February 1991, May 1993, June 1995 and August 1995. It was strongly argued on behalf of the defence that these relatively rare visits, combined with the evidence of various periods of employment, must establish that the plaintiff's condition has broadly resolved. The plaintiff said in her evidence that she did not regularly see her doctor because there was "nothing he could do", but the lack of treatment is a factor that I must consider.

13. The presence of genuine symptoms is however confirmed by reports tendered on behalf of the defendant. Dr Cairns examined her in April 1991, when he reported that her complaints

"...are generally fair and reasonable and consistent with the
injury arising from the alleged mechanism",

and in March 1992 when he reported that she had resumed part time work and said:

"The claimant has resumed light manual work as an assistant in a
newsagency. I believe that she remains fit for such work, or other
forms of light manual activity including sedentary, mixed
sedentary and standing, sales, supervisory or administrative work,
or any occupation not requiring repetitive bending or lifting or
the maintenance of postural attitudes such as sitting at a
keyboard or computer terminal, or for prolonged periods with the
arms extended at or above shoulder level or with the necessity to
repeatedly look overhead. She is unable to undertake any of those
activities which involve repetitive bending or lifting or
maintenance of prolonged postural attitudes as described."

14. Dr Griffith, a consultant surgeon, examined the plaintiff for the defendant in April 1994 and reported:

"In my opinion this young woman undoubtedly suffered a significant
acceleration/deceleration injury of the cervico-thoracic spine,
together with consequential musculo-legamentous strains to these
areas, and on the basis of clinical examination today, an ongoing
symptomatic myofascial syndrome which has become chronic, some
four years following the accident."

He noted that, while such injuries usually subside over 18 months,

"In this case she remains quite markedly symptomatic some four
years following the incident".

15. The plaintiff gave evidence of a severe episode of headaches in January 1995 which resulted in an overnight admission to hospital.

16. Dr Ashman, who examined the plaintiff in May 1996, diagnosed

"...a post traumatic regional pain syndrome secondary to soft
tissue injuries to the cervical spine as a result of the motor
vehicle accident in January 1990",

but his prognosis was

"...that she will continue to experience the symptoms of this
condition for a period of up to five years from the accident
thereafter there should be spontaneous subsidence and she should
not be left with any long term or permanent disabilities."

17. I assess this case in terms of general damages as a genuine, soft tissue injury with associated headaches, albeit at the lower end of the spectrum. I must look at the relative lack of treatment in recent years, and I note that out of pocket expenses in relation to treatments amounts only to some $2,031.50, of which sum $750 is attributable to a single MRI investigation. In respect of general damages I award $30,000, $25,000 of which I attribute to past loss, generating interest of $3,250.

18. In looking at economic loss, I must take into account the plaintiff's work history since the accident. While she was unable to work at all for six months after the accident, during which time she was in receipt of Comcare benefits, she did return, successfully, to a part time position in her former Department for some months from July to September 1990 when this contract expired. A different Public Service contract position, involving heavy lifting in a mail room was unsuccessful in November 1990, but she has worked in a variety of part time positions since, which have come to an end for reasons unrelated to the accident.

19. The plaintiff has not worked since 1993, but this coincides with the birth of the plaintiff's last child. The plaintiff says that, but for the accident she would have continued to work in part time Public Service positions until her child reached school level age in 1998, and would then look for a full time position. But there has been no really satisfactory reason given for her cessation of the regular and varied part time jobs that she undertook from 1990 to 1993 in the later period.

20. This is not a case where the plaintiff's past and future economic loss are capable of precise mathematical calculation. The plaintiff's pre injury employment was on a part time contract, which was due to expire in a matter of days from the accident. While it was her hope to renew this contract, which she indeed did later that year, there remains a level of uncertainty. I am mindful of the comments of Miles CJ and Gallop J in Laird v Smith (unreported, 31 May 1996) that in some cases:

"...to make an assessment of the respondent's future by reference
to what the respondent would have been earning at the date of
assessment if there had been no injury, which is purely
speculative, and doing the calculation for the future on that
figure is not appropriate in this case and involves not merely
double prophesy but guess work. It gives a false sense of
mathematical accuracy in a case where it is impossible to achieve
accuracy of that nature."

21. For past wage loss I award a discretionary sum of $10,000 inclusive of interest. For future wage loss I find that a buffer is appropriate to acknowledge a genuine barrier to the plaintiff undertaking certain forms of employment involving repetitive keyboard duties or more manual activities, such as the mailroom job. I award $24,000 under this head.

22. There is a claim for gratuitous services provided by family and friends. In relation to the first six months after the accident there is evidence that there was considerable assistance provided by members of the plaintiff's family, as well as therapeutic massage provided by a masseur friend one hour per week for 26 weeks. Counsel for the defendant argued that the plaintiff had failed to establish this claim to the requisite standard of proof, and that, in any event, some of the assistance was assistance to the broad family unit rather than to the plaintiff personally - Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. While some of the assistance may fit into this category, I do accept the plaintiff's evidence that there has been such assistance, and this I find to be compensable. I award $3,000 under this head.

23. I am not satisfied that there has been any need for ongoing assistance established on the medical evidence, or that any additional assistance presently being provided by the plaintiff's older children or partner go beyond ordinary domestic duties which would have been provided in any event.

24. Out of pocket expenses have been agreed at $2,031.50, which I award. The plaintiff gave evidence of an ongoing use of over the counter pharmaceuticals at between $5 to $10 per week, although she could not produce receipts, and acknowledged that she could not say exactly what her expenses were. I award $2,000 for future out of pockets as a discretionary sum.

25. This amounts to an overall award of $74,281.50 which I find to be appropriate in all the circumstances.