Peter Kittler v Michael Hawkins [1997] ACTSC 103 (12 December 1997)

SUPREME COURT OF THE ACT

PETER KITTLER v MICHAEL HAWKINS
No. SC 32 of 1996
Number of pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft tissue injury to neck - Undisplaced fractured vertebra - Ongoing symptoms of discomfort - No Issue of Principle.

HEARING

CANBERRA, 26 November 1997 (hearing), 12 December 1997 (decision)

12:12:1997

Appearances

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the Defendant: Mr F G Parker

Instructing Solicitors: Barker Gosling

ORDER

Order:

1. Judgment be entered for the plaintiff in the sum of $80,700.18.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the morning of 29 December 1993 on Barry Drive in Canberra City. No defence was filed to the claim, and an interlocutory judgment was obtained on 15 July 1997. The matter therefore proceeded before me by way of an assessment only.

The accident occurred as the plaintiff was stationary in a line of cars on Barry Drive shortly after 9am. The plaintiff would normally have turned into Marcus Clarke Street from Barry Drive on his way into work, but on this particular morning there was a police road block in place because of the siege in the nearby Jolimont Building, and police were directing traffic to alternative routes. The plaintiff recalls being stationary in his vehicle, with the radio on listening to news broadcasts of the events, and looking ahead, when he was struck from behind by a four wheel drive vehicle.

The plaintiff described the impact of the collision as severe. He says that he was pushed back and up over the rear of his driver's seat. Although he had his foot on the brake, his car was by the impact pushed forward and into the car in front, causing additional damage to the front of his vehicle. He described feeling a lot of sharp pain in the neck at this time. He attempted to get out of his car but says that he could not stand up, and fell back into his seat. He described himself as being in particularly severe neck pain, and feeling disoriented and feeling a loss of balance. He was assisted from the vehicle. He left his vehicle at the scene, and was driven to his place of employment by the woman in the car in front. He says that he did not feel competent to drive.

He says that he felt "not too good" at work, and that at about 10am he decided to see his general practitioner. He obtained an appointment, and his doctor suggested he obtain x-rays. He saw his GP and was told to take some time off work, and prescribed analgesics and physiotherapy. The plaintiff took analgesics for some time, but says that he prefers not to take medication, and continued with physiotherapy for some years. He was off work for about two weeks, and then started a graduated return to work. He has remained at work on a full time basis since about the middle of 1994, although he says that his ongoing complaints cause him difficulties at work.

Mr Kittler was born in December 1946, and completed his secondary education in Victoria. He obtained a degree in economics from Monash University and a certificate in secondary teaching, and taught in the Victorian system from 1969 to 1971. In 1971 he joined the Australian Public Service, initially in Melbourne, but he obtained a transfer to Canberra as a graduate clerk in 1972. He has had continual employment in the public service since, in Treasury, Transport and Defence, moving to the Australian Customs Service in 1989. He has been a Senior Officer Grade B since about 1989, and has accordingly had management responsibilities as a section head in a variety of posts in the Australian Customs Service.

As the accident occurred while the plaintiff was on his way to work, Comcare has assumed responsibility for his treatment expenses and has also made good the shortfall in his income during the period of his absence from duty, and throughout the graduated return to work. Counsel for the defendant agreed that the defendant was liable for these payments, which were agreed in the sum of $30,909.08, comprising medical expenses of $13,061.68 and salary payments in the sum of $17,847.50. It is appropriate that I award this sum in respect of past out of pocket expenses and past wage loss.

The plaintiff's claim for damages seeks general damages and a buffer sum to reflect the impact the accident related injuries will have on his future earning capacity. Leave was given at the hearing for a claim to also be particularised in respect of ongoing treatment expenses. Notice of this amendment had been given and no objection was taken to it being made at the trial.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, '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'."

In this case the plaintiff's claim for general damages is based on his ongoing neck pain and discomfort associated with the accident. His general practitioner reported on 13 December 1995 that on the day of the accident the plaintiff was visibly shaken and had severe restriction of all cervical spine movements, and said that he found deep tenderness over the trapezius and para cervical muscle group. He said that at the time of the report, some two years after the accident,

"Mr Kittler's cervical spine soft tissue injury follows a relapse and remission course, worse with stress and fatigue but often relapses without warning. An x ray suggests he suffered a fracture of the C6 vertebra."

The plaintiff was referred at around this time by his general practitioner to Dr Chandran, a neurosurgeon. His report of 19 December 1995 states that

"The history given by this man indicates that he developed symptoms in his neck following an accident in November 1993. The injury involves the soft tissues and the CAT scan also reports a fracture. No disc protrusions are seen but there is some narrowing of the C6/7 intervertebral foramen which may explain the pain in his left arm. His symptoms have improved and have plateaued and further conservative treatment is being pursued. I do not see any indication for surgical treatment at present and he is unlikely to need it. It is to be noted that the fracture of the cervical spine has healed and functional views in 1993 have not shown any instability."

The plaintiff has also been examined by Dr Schaffer, a consultant neurosurgeon, for the defendant, who reported on 14 December 1996. He reported that he was unable to say whether the CT scan revealed a healed fracture at C6, but for the purposes of the report assumed that it was. I should observe here that the significance of this, on the plaintiff's case, was not that the fracture itself was productive of pain, but that it indicated that the trauma at the time was severe, and so productive of significant soft tissue injury as well as observable pathology in the form of the undisplaced fracture which has subsequently healed. I note that Dr Schaffer accepted that the impact would have been comparatively severe, and concluded

"The described incident would be consistent with some subsequent symptoms of ligamentous cervical strain superimposed upon a spinal column affected by a moderate degree of degenerative change. It is accordingly understandable that he would have subsequently developed some irritative symptoms in the neck region and a mild irritative brachialgia. A period of more than three years has now elapsed since this motor vehicle accident occurred. One would normally anticipate a progressive improvement well within this period of time but in the circumstances of this particular case he may well have been left with some mild intermittent irritative symptoms arising from the cervical spine. I accordingly consider that there is likely to be a genuine physical basis to his current presentation. At the same time I also formed the view that there was a superadded non physical element. In this regard his symptoms of headache and nausea are of a non physical type and his general demeanour is somewhat introspective."

From all of the medical evidence I can conclude that the plaintiff did suffer soft tissue injuries of some severity to his neck in the accident, which are still productive of genuine symptoms and is likely now to be stable for some time to come.

The plaintiff said that he had suffered a degree of soft tissue injury in a previous motor vehicle accident in 1988 when he was the driver of a car which was struck on the left hand side. He took some time off work, and his symptoms slowly resolved, to the point where, by late 1993 he considered himself to have fully recovered from this incident, although he did say that when he played golf in 1993 he could experience neck pain. This was referred to in Dr Schaffer's report where he said

"The history of the previous motor vehicle accident occurring in 1988, following which he experienced symptoms in the neck region for approximately three years, suggests to me that the collision may have also been responsible for some pre existing vulnerability in the cervical spine."

To the extent that this suggests that the 1993 accident rendered symptomatic a previously resolved episode of soft tissue strain, it of course assists the plaintiff's case. No evidence was produced suggesting that the 1988 accident was the ongoing cause of whatever symptoms the plaintiff now suffers, and I am satisfied that the plaintiff has been truthful about this episode throughout.

The plaintiff says that prior to the 1988 accident he had used a gym regularly, and occasionally jogged and played golf. By 1993 he was able to resume golf, albeit with some pain. He said that he attempted to resume jogging, but having been unused to this form of exercise for some years he found it a strain, and did not resume this activity. He avoided golf for some time following the 1993 accident, but has now resumed on an occasional basis, and he again suffers from occasional pain during and after a game. He says that he is restricted in his home activities due to neck pain.

The plaintiff's employment requires him to develop policy as well as administer a section of some 30 people. He uses a computer on a regular basis, and finds that he develops pain after about an hour of keyboard use, or in long meetings. He says that he becomes irritable and distracted with pain, and he is concerned that this will prevent him from continuing to perform at the high level expected of a section head. He was concerned at his concentration, and in May 1997 has some tests performed by Canberra Neuropsychological Services in relation to his memory and cognitive functions. This report, which was tendered by the defendant, found that the plaintiff achieved quite high scores in respect of memory and cognitive functions.

In respect of general damages, I assess the plaintiff on the basis of his soft tissue injuries and undisplaced fracture, which have caused ongoing pain and discomfort in the neck, and subsequent restrictions to his lifestyle. I would award damages on the basis of soft tissue injury in the moderate range, and assess damages at $20,000, half of which I would attribute to past loss, which with interest amounts to an award of general damages in the sum of $20,791.

The plaintiff's claim for damages for future economic loss is based on a claim for a general buffer, which is a familiar form of claim where soft tissue injuries do not exclude a plaintiff from the workforce, but where the injuries cause ongoing pain and difficulty in the workplace. Dr Schaffer for the defendant described the plaintiff's duties as clerical and managerial, with no duties of a heavy manual type, and recorded that he is presently working full time in his normal duties, but

"...prefers to avoid doing overtime because this will result in a augmentation of symptoms the following day."

This is consistent with the plaintiffs evidence, where he said that he had difficulty in maintaining the long hours and consistent quality of work expected of a person in a section head position in the Australian Customs Service. Dr Schaffer concluded that

"...his normal duties are of a very light nature and in my opinion it is unrealistic to suggest that he has any loss of working capacity."

While I accept that the plaintiff is, as he indeed concedes, physically able to undertake his duties, and indeed he has been in full time employment since he resumed normal hours in 1994, I am not satisfied that this opinion fairly disposes of the plaintiff's claim. It is indeed itself consistent with the plaintiff's claim, supported by medical evidence, that while he can perform his duties he does suffer ongoing discomfort . This is the view which emerges from all but one of the plaintiff's medical reports. The exception is a report from his general practitioner, dated four days before the hearing date, where his general practitioner puts the view that the plaintiff's working career will be shortened by several years, perhaps 5 to 6 years, due to the ongoing pain.

The plaintiff said that it had been his intention to work to normal retirement age, which he said these days in the public service meant about 60, but that he was now concerned at whether he could continue at his present level for that long. This seems a rather more pessimistic view than that which had emerged from the plaintiff's medical evidence. Taking into account all of the evidence, I am satisfied that there is a real impairment to the plaintiff's earning capacity. I thus reject the defendant's view, based on Dr Schaffer's conclusion that the plaintiff is able to physically work his normal hours on a full time basis, that there should be no award for loss of earning capacity.

I am not, however, satisfied that this can be quantified with any degree of precision by way of an award for loss of earnings for a defined period of years. It seems more appropriate here to make an award by way of a general buffer. I award damages for future economic loss in the sum of $25,000.

The plaintiff was given leave to amend his statement of particulars to include a claim for ongoing treatment expenses. This was particularised at ongoing monthly visits to an osteopath costing $60 per month and ongoing monthly general practitioner visits costing $35 per month. The plaintiff admitted in cross examination that the Comcare records showed that Comcare had paid for three visits to his GP in 1996 and four to October 1997.

The plaintiff had undergone extensive physiotherapy up to May of 1997, but he said that he was not satisfied that this was providing ongoing relief, and that he commenced seeing Mr Webb, an osteopath, in May 1997, and has returned for treatment since. Mr Webb reported on 4 November that he had provided 10 occasions of treatment, and that this produced a noted improvement in symptoms, but that the plaintiff would need further treatment for an indeterminate period of time due to the chronic nature of his condition.

Dr Schaffer reported that he disagreed with a need for long term physiotherapy. He did not address the question of osteopathy, but he did say that

"Long term physiotherapy in this situation is not only unhelpful but can be counterproductive in that it has a tendency to reinforce the subject of symptom complex. In other words I consider that there are likely to be iatrogenic factors which serve to perpetuate the situation. I strongly disagree with the comment of his treating doctor who suggests that he will require $10,000 worth of physical treatment in the next few years. I consider this to be unnecessary and also on account of the absence of compressive features I can see no indication for operative treatment."

I note that the plaintiff's general practitioner has expressed the view that the plaintiff will require ongoing treatment costs of $10,000 in a report in December 1995, but that in a report of 23 September 1997 he said

"As a conservative estimate I would advise that Mr Kittler will require some form of ongoing physical therapy for another two to three years. An estimate of cost would be in the order of $80 per week, say $4,000."

I am satisfied on all of the material that the plaintiff will require some additional treatment which will incur expenses which ought be attributable to this accident. As a discretionary sum I would award $4,000 by way of compensation for future medical and treatment costs.

This amounts to an award of $80,700.18 which I consider to be appropriate in all the circumstances, with costs.