Jonathon Mark Pigott v David Eion Loosemore [1997] ACTSC 33 (9 May 1997)

SUPREME COURT OF THE ACT

JONATHON MARK PIGOTT v. DAVID EION LOOSEMORE
No. SC 224 of
1996
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 - Whiplash injury to neck - Acceleration of underlying asymptomatic degenerative desease - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

HEARING

CANBERRA, 14-15 April 1997 (hearing), 9 May 1997 (decision)

9:5:1997

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Abbott Tout Harper Blain

Counsel for the Defendant: Mr B Hull

Instructing Solicitors: Wood Fussell as agents for Malcolm Johns & Co

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $56,590.

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 which occurred on 19 January 1992. The plaintiff, who is a resident of the Australian Capital Territory, was holidaying in Queensland with his partner, and had driven from Brisbane to the Gold Coast for a day's surfing. While returning to Brisbane the plaintiff encountered very heavy traffic near Nerang on the duel carriageway double lane highway which connects Brisbane to the coast. He was stationary in his vehicle at the end of a line of traffic when his vehicle was struck in the rear by the defendant, who was driving a heavy truck. Liability was not in issue at the hearing, and I am satisfied that the defendant failed to brake, and that his truck drove into the rear of the plaintiff's vehicle at some 80 kilometres per hour. This makes this an accident of considerable force.

The plaintiff described his vehicle being struck very heavily from behind. He said that

"...it sort of just felt like there was an explosion. There were things flying all over the car. There was glass from the back window that shattered and came in. The radio from the dash flew out of the dashboard."

He described the car being forced across the other lane of traffic and through a culvert and across a large greened area before coming to rest just before the opposite, oncoming lanes of traffic. The plaintiff said that he was in shock as the car came to rest, and that his seat back had been broken by the force of the impact. He was more in shock than in pain at this point. Ambulance officers attended, and a nurse who was a bypasser also assisted. The plaintiff says that he was urged to attend with the ambulance officers to the Gold Coast Hospital, but that he preferred to return to Brisbane, where his parents lived. He accepted a lift to Brisbane, and later that evening his parents took him to a Brisbane Hospital, where he was x-rayed, provided with pain killers and sleeping pills, and allowed to leave. The next day he saw a general practitioner at Indooroopilly, a Dr Shepherd. He complained of headache and neck pains and limitation of range of movement of his neck. Dr Shepherd recorded on examination

"...bruising and contusion of the left jaw and bruising of the base of the left side of the front of the neck. There was tenderness to palpate the left sterno-ceido muscle. The cervical spine was not tender to palpate but movement range was diminished due to pain in the sterno-ceido mastoid muscle. Deep tendon reflexes were normal and no neurological signs were evident. Examination of the rest of the body revealed no other injuries. The findings were consistent with soft tissue injury to the skin and muscles of the jaw and neck from having been propelled forward from a blow behind in a MVA. He was prescribed simple analgesia (i.e. paracetamol) for pain and non steroid anti inflammatory drugs (Surgam) to reduce soft tissue and muscle inflammation. He was given a sickness certificate to cover incapacity until 29/1/92."

The plaintiff rested at his parents house and returned to Canberra, by car, at the end of January. He attended his Canberra general practitioner on return, and an x-ray of his cervical spine was obtained on 5 February 1992. This was to assume some significance. The x-ray taken at the Brisbane Hospital was not in evidence. No recent or old bony injury was detected on this x-ray, and limited flexion was put down to muscle spasm. The plaintiff was referred for physiotherapy, and attended the practice of Ms Bond. He presented for a number of treatments in February and March 1992, and through July and August of that year. The plaintiff has continued with intermittent physiotherapy. He continued, however, to complain of mild discomfort and pain in his left neck. This became worse when travelling, which he was required to do in the course of his employment, and after prolonged work at a computer or at meetings.

The plaintiff was born in 1960, and after completing his education to year 12 level he has had continuous employment in the Australian Public Service. He started at the bottom, as a Clerical Assistant Grade 1, and has had regular advancement since. He joined the Australian Taxation Office in 1981, at a very junior level, but has advanced steadily in that Office. He has developed considerable skill and expertise in computers and their applications, and has advanced to the Senior Officer ranks in the Tax Office. At the time of the accident he was a Senior Information Technology Officer Grade B, and was head of the Distributed Computer Services Centre at the Tax Office's national headquarters in Canberra, responsible for maintaining the operation of a vast network of computing resources in Tax Offices across the nation. This is a senior position. He reports to Mr Leech, who is a Senior Information Technology Officer Grade A, who in turn reports to a member of the Senior Executive Service. Mr Pigott was able to return to his duties in February 1992, and has continued in full time employment, in what is obviously a senior and demanding position, ever since.

The nature of his claim for damages for economic loss is a claim that, as a result of the accident he now suffers ongoing neck pain and discomfort, albeit normally at a mild level, which is subject to periodic flare ups. While he has been able to continue in full time employment in a senior position, it is his case that while he is fulfilling the duties of this position adequately and properly, he is not able to excel, as was the case before the accident. Accordingly, he says that the consequences of the accident have placed him at a comparative disadvantage in what is now a highly competitive environment for promotion, either within the Australian Public Service or in an outsourcing organisation supplying computing needs to the public sector. He claims a buffer for such loss.

The plaintiff attended Dr Keiller for medico legal assessment in May 1993. He concluded that the plaintiff sustained soft tissue injuries, which were at that point continuing to produce genuine residual symptoms and restrictions of movement. His prognosis was good for complete recovery. In his later report, of April 1997, he found that the plaintiff

"...has genuine neck symptoms and there is objective evidence of minor muscle spasm and slight restriction of left lateral rotation."

By the time of this examination Dr Keiller had the benefit of additional radiological examinations, being a CT scan of his cervical spine, taken on 20 July 1993 and an MRI scan of 24 March 1997. These showed evidence of a degree of degenerative change which, in the opinion of all of the doctors who have examined Mr Pigott, predate the accident.

Dr Keiller concluded that the plaintiff will continue to have intermittent neck discomfort indefinitely, with irregular exacerbations. He concluded that

"It is probable that your client had early changes at the time of the accident, which may or may not have become symptomatic again, spontaneously, in time. He has been denied the change of a pain free neck for longer, or even indefinitely; and, on the balance of probabilities, I believe there was a significant contribution to any degenerative disc bulges already present in the incident described."

The real issue in dispute at the hearing of this matter relates to the extent to which the accident was the factor which accelerated or triggered a previously asymptomatic degenerative process. The plaintiff had, in August 1991, presented to his general practitioner, complaining of neck pain. The contemporary notes taken by the physiotherapist who has treated Mr Pigott throughout record

"Woke Thursday with neck pain and couldn't move neck. Went to doctor and prescribed Voltaren. Helped slightly but still stiff, presented to physio."

The notes then record one episode of treatment by the physiotherapist some five days after the onset of the pain, involving mobilisation at C/7 and massage, and giving the plaintiff a regime of muscle stretches and a range of movement exercises. There was no further treatment, and the plaintiff says there was no time off work, which is confirmed by his attendance records.

The plaintiff in his evidence in chief said that this episode occurred at a time when he was putting in long hours after work painting the ceilings of his home, and he attributed this "muscle spasm" to this. Counsel for the defendant notes that there is no reference to this in the notes. The plaintiff did not provide any doctors with reports of this incident until this year. He says that he forgot about this incident, which he says was a minor matter, until the physiotherapists notes came to light as part of the preparation for trial in this matter. Counsel for the defendant points to this as an episode demonstrating that the plaintiff's underlying degenerative condition had in fact become symptomatic before the motor vehicle accident.

Dr Scott Findlay, who examined the plaintiff on two occasions for the defendant, expressed the view that the plaintiff's present condition was principally attributable to his underlying degenerative condition. I note however that his report of March 1997 does acknowledge that the accident caused soft tissue injury to the cervical spine and the upper limb girdles associated with the cervical spine, and that the plaintiff would be subject to having to take a day or two off work should severe pain recur. Dr Scott Findlay says:

"I do not doubt that his injuries were the direct result of the accident",

but I take this to refer to the whiplash injury and not the underlying degenerative condition. It is significant that Dr Scott Findlay, who had not heard of the August 1991 incident before the hearing, expressed the view in evidence in chief that this was likely to be an early sign of a symptomatic degenerative condition. In cross examination he was shown the February 1992 x-ray, which he had not previously seen. He was asked whether, having now seen this x-ray which was clear of any sign of bony osteophytes or other indication of degenerative disease, he would consider the August 1991 incident to be more likely to be a simple case of muscle spasm or "wry neck" than an indication of a degenerative condition which had advanced to the stage of being symptomatic. He acknowledged that this clear x-ray pointed more in the direction of the August 1991 incident as a wry neck (Transcript, p.120). Dr Scott Findlay also acknowledged that a significant force would have been involved in this accident, resulting in a whiplash injury of some magnitude.

I am satisfied, on the balance of probabilities, that the significant force of the motor vehicle accident caused whiplash type injuries to the plaintiff, and that this has had the effect of aggravating or accelerating an underlying degenerative condition. I regard the August 1991 incident as a discrete incident of muscular pain, rather than a first manifestation of symptoms of the underlying condition. It follows from this that, for the purposes of assessing damages, I broadly find in the manner urged by counsel for the plaintiff.

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 the present case this means that, in assessing general damages, I must look at this case as one involving whiplash type injuries arising from an accident of considerable force involving the acceleration of an underlying asymptomatic degenerative disease. I accept the evidence of Dr Keiller that it would not be possible to say with any certainty when, if ever, the underlying condition would become symptomatic. This is consistent with Dr Scott Findlay's evidence also, who said that many adults would, on appropriate radiological examination, be shown to have significant degenerative changes to their spine, yet have few if any symptoms. The plaintiff has nevertheless been able to continue in full time employment. He gave evidence that he is able to continue with a broad range of recreational and sporting pursuits, albeit with restrictions. The plaintiff was frank about this, and has not tried to exaggerate the extent of his ongoing disabilities to medical experts or in his evidence in chief. I assess this matter as being at the lower end of the spectrum of soft tissue type injuries, but I must also bear in mind the acceleration of the underlying condition, and the fact that the plaintiff will have to persevere with this condition for the rest of his life. The onset of such disabilities, albeit relatively minor, in a comparatively young man, are significant. It is to the plaintiff's credit that he has persisted in rehabilitation efforts. He has seen a range of general practitioners, and has been referred to Dr Chandran, who advised surgery as an alternative. He does not wish to attempt surgery unless there is no alternative, and in 1995 another general practitioner referred him to Dr Corry, who specialises in rehabilitation medicine. The plaintiff has undergone a course in exercise therapy, utilising a machine, which has over time built up his neck and shoulder strength, and provided a degree of relief. Dr Scott Findlay expressed some scepticism as to the efficacy of the machine, and was of the view that a regime of self administered exercises could have the same beneficial effect. In fact Dr Corry has instructed the plaintiff in such exercises, which he continues with.

In relation to general damages, I award the sum of $27,000. Given that the condition will be permanent, I assess $15,000 for past loss, generating interest of $1,590, a total award for general damages of $28,590.

Out of pocket expenses were agreed at $4,485.45. This included only one amount of $30 for lawn maintenance, and did not include any amount for cleaning costs. The plaintiff gave evidence that he and his partner, who was also injured in the accident, were required to engage a cleaner to do heavy cleaning work in the period after the accident, and that they paid something in the order of $30 per session. This has not been the case continuously since the accident, as for an extended period a relative lived with them, and undertook cleaning duties . No receipts for past cleaning services have been provided, but I accept the plaintiff's evidence that he has had to incur expenses for some cleaning and household maintenance tasks over the period since the accident that he would otherwise have done himself or with his partner. Counsel for the plaintiff urged that this could be quantified as a claim for about $1,250 for cleaning and $2,500 for household maintenance. I am not satisfied that these sums can be made out, and as a matter of discretion I will award $6,000 for out of pockets as a global sum including cleaning, maintenance and expenses for travel to medical appointments and the like.

The plaintiff says that he continues to spend about $6 a fortnight for analgesics. He may at some time need to undergo a further course of exercise from Dr Corry, which would cost about $400. I am satisfied from the evidence of all the doctors who gave oral evidence, and the plaintiff's own views, that surgery is a very remote possibility indeed. There will also be a need for ongoing visits to a general practitioner. I award the sum of $2,000 as a discretionary sum for future out of pocket expenses.

A claim by way of past economic loss was made in respect of the plaintiff's use of sick leave which, it was said, he would not otherwise have utilised to the same extent. Notwithstanding the legal difficulties associated with this type of claim (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340), I was not satisfied from the evidence that specific periods of sick leave could be attributed to the accident to the requisite standard of proof. I decline to make an award under this head of damages.

The plaintiff's claim for future economic loss is based on a claim for a buffer to recognise that the ongoing consequences of his injury will have an adverse impact on his future promotional prospects, either within the public service or in the private sector. I am satisfied from the evidence of Mr Leech, his supervisor, that this claim has been made out, in that I am satisfied, on the balance of probabilities, that Mr Pigott is now in a less advantageous position in relation to his future promotion prospects than he was before the accident, and that this is attributable to the accident. Damages are awarded for earning capacity, and I accept and find that the plaintiff's economic capacity is now lower than it was before the accident.

The plaintiff continues, of course, to fulfil the duties of his present senior and responsible position. He continues to aspire, properly, to advancement in his career, and it is clear from Mr Leech's evidence that, even after the accident, the plaintiff remains a valued employee, and one capable of promotion. Counsel for the plaintiff was unable to point me to a decision which provides an appropriate guide to quantum in such circumstances. Mr Leech spoke of the highly competitive nature of employment at this level in the information technology industry. He said that, at present, competition for positions within the public service is very intense, and competition for positions in outsourcing organisations even more so. Mr Leech said that before the accident the plaintiff would have been one of the top contenders for any position, but that now there would be peers who have overtaken him. He said that the plaintiff's inability to put in long hours and his travel restrictions place him at a comparative disadvantage.

The appropriate level of buffer in such a case is, of its nature, speculative. However, on the findings that I have made as to his changed earning capacity as a result of the accident, I award the sum of $20,000 as a buffer for future economic loss, that is, to provide appropriate compensation for the reduction in the plaintiff's prospects for advancement due to his accident caused injuries.

This buffer is also inclusive of, and takes account of, the plaintiff's claim that the ongoing effects of the accident will cause him to take more sick days from work than would otherwise be the case.

This amounts to a global award of $56,590, which I consider appropriate in all the circumstances.