Belinda Michelle Brown v Peter Deans [1997] ACTSC 37 (16 May 1997)

SUPREME COURT OF THE ACT

BELINDA MICHELLE BROWN v. PETER DEANS
No. SC 59 OF 1995
Number of
pages - 10
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 - Whether Plaintiff failed in her duty to mitigate her loss - Diminution in capacity to work - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

HEARING

CANBERRA, 29-30 April 1997 (hearing), 16 May 1997 (decision)

16:5:1997

Appearances

Counsel for the Plaintiff: Mr F G Parker

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the Defendant: Ms C E Adamson

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $169,223.39.

2. The question of costs is reserved.

DECISION

MASTER T CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred at Fyshwick in the Australian Capital Territory on 1 March 1991. The plaintiff was driving in a northerly direction along Dairy Road in Fyshwick approaching a roundabout at the intersection with Morsehead Drive. The plaintiff came to a stop at the roundabout to enable other vehicles to clear, and was struck from behind by the defendant's truck, which failed to stop at the roundabout. Liability was not in issue at the hearing of this matter, and I have no difficulty in finding that the accident occurred as a result of the defendant's negligence.

The plaintiff was born in 1971, and so was a young woman of 19 at the time of the accident. The plaintiff grew up and completed her schooling in Canberra. She left home at a young age before completing High School, and lived in Queensland for a time, finding steady employment in take away stores and the like, but she returned to Canberra and was re united with her parents in about 1987. She gained entry to secondary college and successfully completed her education to the end of year 12. In 1989, she attended the Metropolitan Business College for 12 months to complete an Advanced Secretarial Diploma. Having obtained this qualification, she sought employment through Templine at the end of 1989, and successfully obtained a placement with the Department of Primary Industry and Energy in January 1990. This was a three month temporary position, but the plaintiff was successful in having this position renewed successively, and was still employed there at the time of the accident, on a contract that was due to expire at the end of April 1991. At no time had she achieved the status of a permanent public servant, and her contract renewals were structured so as to preclude this from occurring.

The plaintiff said that she greatly enjoyed her job. She was employed in the section of the Australian Fisheries Service that was responsible for publishing a monthly magazine, "Australian Fisheries", put out by the service. This was considerably more than a mere in house journal, being a professionally produced colour magazine which circulated widely in fishing circles. The plaintiff's job was to look after classified advertising in the magazine, which involved a degree of client contact. It was clear from the plaintiff's evidence that she enjoyed the work, and saw herself as having a "foot in the door", as her counsel put it, in publishing and media type work. The plaintiff said that as fishing had been a long-standing interest of hers and her father's, this was an added dimension to the pleasure she took in the job. Her mother gave evidence that while she was working in this position she was very bright, bubbly and outgoing, and a photograph tendered of the plaintiff at her workplace clearly shows a young woman who is enjoying her work. A reference obtained in November 1990 from a journalist involved in the magazine was tendered as part of the plaintiff's case. This was certainly a glowing reference, concluding

"I cannot adequately express my high esteem for Ms Brown. She is a hard worker, committed to her work (which I respect and admire), yet has a sense of fun and positive outlook which makes it a pleasure to work with her. Over the past 11 months she has responded willingly to every challenge. She is very much a candidate for further development in the workplace. Any employer willing to make such an investment would reap rich rewards."

The accident involved a truck striking the plaintiff's car while she was stationery and the truck was travelling at about 60 kph. The plaintiff said that the impact was severe, and that her seat was torn from its mountings. Her vehicle was written off by the insurer, but her fiance is a qualified panelbeater, and they purchased the wreck from the insurer for some $400, and he repaired the vehicle. Nevertheless, I am satisfied that this was an accident involving considerable forces.

The plaintiff was taken from the accident scene to the Royal Canberra Hospital by her fiance, where she was x-rayed, given a soft collar to support her neck and some Panadeine Forte and allowed to return to her home with her mother. She said that at the time of the impact she was overwhelmed by pain in her neck and a ferocious headache. The hospital notes confirm that she presented with pain, but had a full range of movement and no abnormalities on x-ray. The accident occurred on a Friday, and she says that she spent most of the weekend in bed in pain, and on the Monday presented to her family general practitioner, Dr Meiklejohn. He recorded a reduced range of movement in cervical spine to 50% due to pain, with tenderness midline and at the facet joints. He advised physiotherapy, heat and analgesics and muscle relaxant. Dr Meiklejohn's report of 22 May 1991 records that he saw the plaintiff again on 14 March, where he recorded improvement which he put at 50%. He says that his locum saw her again on 27 March and 11 April, where improvement was again recorded, but the locum felt that she was still unable to cope with work, and kept her off work until seen by Dr Meiklejohn at the end of April. Dr Meiklejohn records that he saw her again on 1 May when she presented after attempting some clerical work at home to prepare herself for a return to work, and her condition deteriorated. His report, which is consistent with the plaintiff's oral evidence, is that the plaintiff was anxious to demonstrate her ability to work before her contract expired, in order, no doubt, to improve her chances of renewing that contract or obtaining something else. He concluded his report

"I feel that Belinda has made a good recovery but attempted to do too much too quickly as is the nature of the girl. I feel that Belinda will do well following this accident because of her work ethic, her determination to get better and her overall understanding of the problem."

Dr Meiklejohn was not called for cross examination, and this is, properly, a quite normal course in personal injuries litigation in this Territory. But I do attach some significance to the remarks that I have set out above, because they are totally at odds with the defendant's case which, at it's highest, is that I should find that the plaintiff suffered only very minor soft tissue type injuries as a result of the accident, and that she was probably fit to return to work by April 1991. The defendant's case is that the plaintiff, knowing that her temporary employment was likely to end and not be renewed, exaggerated her condition in order to be assessed as unfit for work and so attract ongoing Comcare benefits. This was flatly contradicted by the plaintiff, who did not present as someone with a sophisticated knowledge of the Comcare benefits system in 1991. It is totally at odds with Dr Meiklejohn's assessment of the plaintiff's condition and character expressed in his report of May 1991.

The defendant says that I should come to this conclusion on the basis of a letter to the plaintiff's solicitors of July 1991, in response to an enquiry of the Department of Primary Industries and Energy, in which it is stated

"It is unlikely that even if Ms Brown had not had the accident that her contract would have been renewed due to restructuring currently taking place within the Australian Fisheries Service."

This letter was in response to a letter sent by the plaintiff's solicitors on March 21 1991. While it may show that the plaintiff had concerns at the time of the letter being written, the advice that her contract was unlikely to be renewed was not received at the time that, on the defendant's case, the plaintiff entered into this ruse. The plaintiff says that she had no knowledge of the detail of the letter of 21 March, and her counsel invited me to look at the form of the letter as a standard first enquiry of an employer produced by a word processor at a law office. Indeed, the letter does not ask a specific question about renewal of her contract, rather it asks generally about how prospects for advancement could be affected by the injuries.

I am satisfied that the plaintiff had a genuine belief that she could return to her job, and that she tried hard to demonstrate a capacity to work, and as a result suffered the set back described by Dr Meiklejohn. I found the plaintiff to be truthful, and the scenario suggested by the defendant is totally inconsistent with the picture of the plaintiff I was left with after quite extensive cross examination, and with the view of her long-standing family general practitioner, who was not cross examined as to whether he had been unwittingly fooled.

The plaintiff was examined for the defendant by Dr Andrews, a consultant neurologist, in May 1992. He found on examination tenderness and movement restriction, and said

"I believe the injuries here are facet joint on the left at C5-6 and 6-7. There is no evidence of cervical disc injury from the scans. She has had fairly adequate treatment so far including physiotherapy, anti inflammatory agents, exercises but I think her facet joint problem will require facet joint blocks before her condition settles fully. I think there is a genuine degree of pain still present with her. If it has been severe enough to prevent her from working is of course debatable."

I find it significant that Dr Andrews, reporting to the defendant, has found a genuine condition still present in May 1992 which he felt at the time may need facet joint blocks. While he says that the question of whether her condition would prevent her working in May 1992 is debatable, he certainly falls short of contradicting Dr Meiklejohn on this point. Dr Andrews did say, in his oral evidence, that video material he saw of the plaintiff engaged in a range of activities in her garden in September 1993 led him to the view that she would at that time have had only minor neck pain,

"...and that she would be fit to return back to clerical duties",

but he conceded that the video material did not show the plaintiff maintaining her neck in a constant posture as is adopted at a desk operating a computer.

Dr Meiklejohn again reported on the plaintiff in 1993 following a review in August of that year. He said

"Her general condition seems to have stabilised but she is still not physically able to return to her pre-accident duties."

Comcare had attempted a graduated return to work at her old jobsite in May of 1993, but this was apparently vetoed by the line agency. In preparation for the placement, a medical diagnosis was obtained from Dr Meiklejohn on 21 May 1993, which was tendered by the defendant. He described her condition as

"...neck pain - radiates to shoulders at times"

and said of the expected prognosis

"...pain variable dependant on activities still actual prognosis difficult to give. May still have some neck problems for 12-18 months yet."

Nevertheless, he approved her attempt at a graduated return to work on conditions that she not be subject to long periods of sitting at a keyboard, or heavy lifting, and that she was able to move around freely and perform exercises as required.

The plaintiff said that she was very upset and disappointed that this return to work did not proceed. She acknowledged in cross examination that she had "got her hopes up" and was upset when the plan fell through. The defendant tendered a document from Comcare. It is under the hand of her case manager at the time, and reads

"Following work visit to new area and no work found suitable a proposal was put forward to rehabilitate Belinda back to work in her previous section (which was no longer part of the Dept of Primary Industries and Energy). The area was assessed ergonomically and appropriate equip/aids recommended including a visit to the Indep. Living Centre. Belinda was keen to RTW here and had a lot of support from her previous peers. On 25/5/93 the managing director said NO to the proposal. The client was very upset and was not prepared to accept other job offers - Nothing else has been offered and Belinda has been advised by her solicitor to have no further involvement with the RTW programme."

The defendant's case is that this establishes an unreasonable failure on the part of the plaintiff to mitigate her damages, and that I should find that, from this point on, her absence from the workforce was caused by her refusal to co-operate with Comcare rather than her accident caused injuries. This is a strong case to make on the basis of a short note alone, and I note that the Comcare case manager was not called to expand on this issue. I note also that in fact the plaintiff did, in late 1994, co-operate in a return to work programme, at a different workplace. I have no doubt that the plaintiff would have been very disappointed and upset by the late closure of what was clearly her preferred option, of attempting to return to a workplace which she enjoyed, and where, on the evidence of the document tendered, her former peers were supportive of her. I do not find that this establishes an unreasonable failure to mitigate her damages.

The plaintiff was asked why she did not apply for jobs during this period, and her answer was that her family doctor still certified her as unfit for work. This is a reasonable response.

I am reinforced in this finding by the medical evidence concerning the plaintiff's physiological condition following the accident. The plaintiff, and her mother, said that she has changed as a result of the accident, and become a more withdrawn and sometimes angry person. This is confirmed by reports from Mr Mitchell, a clinical psychologist, tendered by the plaintiff, and by Dr Robbie, a psychiatrist, tendered by the defendant, as well as Dr Dunlop, a rehabilitation specialist who reported to Comcare in 1994 and whose report was tendered by the defendant. I note also that the plaintiff was, around the time of the attempted return to work, assessed by Dr McGrath, a rehabilitation specialist, whose report was not tendered by the defendant. Counsel for the plaintiff noted the absence of any such report, and invited me to draw the appropriate inference, that the report would not further the defendant's case.

Dr Dunlop's report to Comcare, tendered as part of the defendant's case, relates to an assessment conducted in July 1984. He concluded that she

"...has a history of flexion extension injury which I understand is the result of a motor vehicle accident in March 1991. Ms Brown continues to experience significant symptoms and activity limitation."

He concluded

"It is clear, however, that her physical injuries have been accompanied by a significant psychological reaction, with unresolved feelings of grief and loss, as well as anger which she attributes to her injuries and also to her perceptions about how her injury has been managed by her employer and Comcare. She is distressed about the termination of her work contract and her loss of a job in which she felt secure and which she enjoyed."

This report is consistent with that of Mr Mitchell, who reported in November 1994 that the plaintiff was depressed and suffering from post trauma difficulties. Ms Brown said that she found her consultations with Mr Mitchell to be quite helpful, and his update report of 1 January 1997, relating to an examination in November 1996, reported that she no longer warrants a diagnosis of depression, although he noted that she was still somewhat distressed by the ongoing medico legal process of resolving this case. He concluded

"In my opinion, Ms Brown's presentation in this regard will desist when the current situation is resolved and that she does not warrant a formal psychopathological diagnosis at this stage."

Dr Robbie, who examined the plaintiff in July 1996 for the defendant, has provided a report which is broadly consistent with the others. He concluded

"I accept that she did become depressed, probably for around a year, in 1994, but she seemed to come out of it when she got her second job. I would suggest that what she now has is an adjustment disorder with depressed mood."

Dr Robbie has noted the significance that losing her favoured job at the Fisheries Service has had in the plaintiff's thinking, but I find it hard to reconcile his report with the suggestion of the plaintiff as a person who has feigned disability in order to increase Comcare payments. Dr Robbie noted

"...she still has physical symptoms, which I leave to others",

and certainly does not suggest in his report any exaggeration or lack of candour in the plaintiff.

I am satisfied from all of the evidence that the plaintiff's physical injuries, which caused her to take an extended period away from work, has materially caused a genuine psychological condition which has been described above, and which was particularly severe in the year or so before her eventually successful graduated return to work in late 1994. As a consequence, I am satisfied that the combination of her physical condition and her psychological condition has genuinely meant that she lost her capacity to work up to that period.

Extensive video material was shown of the plaintiff engaged in gardening tasks about her home in September 1993. These often involved quite vigorous bending from the waist and squatting, but the plaintiff has of course never claimed low back type injuries. The plaintiff agreed in cross examination that the activities pictured were typical of her physical abilities in the period since the accident, and it was argued that this established that she was at all time capable of resuming her full time clerical duties. However, the video also showed her frequently changing tasks, did not involve heavy work, and did not include the type of activities which she claimed, and Dr Meiklejohn certified, would be likely to give rise to problems. The video material, taken in its entirety, does not persuade me to disregard the medical reports I have referred to above. The video material, of course, is incapable of bearing any light on the psychological conditions described by experts reporting to both sides in this matter.

In December 1994 the plaintiff commenced a graduated return to work, facilitated by Comcare, in her old Department, but in a different section. She was engaged in similar duties to her original position, but working in a section responsible for producing a publication which advised consumers on the fuel efficiency of vehicles available for purchase in Australia. While she commenced on short hours, she increased her hours, and returned to full time duties as a contract employee in March 1995. She was seen on 1 February 1995 by Dr Stevenson, a general physician, for Comcare, and Dr Stevenson's report is by far the strongest report adverse to the plaintiff's case. He concluded on examination that the plaintiff was suffering from no substantial symptoms or affects from her whiplash type injury, and that she was in no way restricted in her employment capacity, other than being "deconditioned". He made no reference at all to the psychological aspects noted by other experts. His conclusion that the substantial affects of the condition (which refers only to the whiplash) ceased in approximately March 1993 or earlier, is difficult to reconcile with the report of Dr Andrews, a consultant neurologist, who in May 1992 considered that facet joint blocks were likely to be needed, and Dr Dunlop, who acknowledged

"...significant symptoms and activity limitation"

in July 1994.

I am not prepared, on the basis of Dr Stevenson's opinion, to find that the plaintiff had no incapacity to work from March 1993. I am satisfied, from the material referred to above, that the plaintiff did suffer a continuing incapacity to work, on both physical and psychological grounds, up to her return to full time employment in March 1995.

The defendant urged me to find that the plaintiff's ability to return to full time work in March 1995 demonstrated that she had this capacity all along, and that it was Dr Stevenson's report, which prompted Comcare to cease incapacity payments on 10 March 1995, which precipitated this. For the reasons set out above, I am not convinced that Dr Stevenson's opinion of her economic capacity, which seems to differ from the opinion of other expert reports tendered as part of both the plaintiff's and defendant's case, is correct. Nevertheless, it is clear that the plaintiff successfully fulfilled all of the requirements of her job, on a full time basis, from March 1995. She says that she was able to vary her tasks to avoid stress to her neck, but it is also clear that, on some days, she worked well in excess of normal hours.

The plaintiff, and her mother, both said that she was happy to be back at work. The work was similar to her original job, being involved in the preparation of a departmental publication. The plaintiff continued in this position on a full time basis until 18 August 1995, when funds for the position ran out, and the plaintiff's contract was not renewed.

The plaintiff has not been able to obtain employment since, and has been in receipt of Job Search Allowance since 5 October 1995. I am not persuaded, to the relevant standard of proof, that the plaintiff's accident caused disabilities constituted an impairment to her ongoing earning capacity beyond March 1995 so that the tortfeasor can be held responsible for her ongoing actual loss of earnings after her contract expired in August 1995. It was clear that the plaintiff could, and would, have continued in this employment if the position had been able to be funded. Her own general practitioner, Dr Meiklejohn, whose opinions I have found convincing in relation to her earlier periods of incapacity, said in a report of December 1996 that the plaintiff had a reduced range of symptoms, only brought on with activity of a marked degree, and displayed a full range of movement. The report concluded:

"I would say that Miss Brown has made a very good, if however incomplete, recovery from her whiplash injury, but I would not anticipate that her current limitations would cause any long term problems in the future."

While Dr Meiklejohn refers to the presence of ongoing limitations, the report does not assert an ongoing incapacity to work, and refers only to the fact that the plaintiff

"...has not worked since August 1995 despite multiple applications."

Dr Scott, an occupational physician, examined the plaintiff in February 1997 and reported to the plaintiff's solicitors. His report also falls short of establishing an ongoing incapacity past the date of her contract termination. He notes that the plaintiff has had some part time work since that date, but he did not find an ongoing inability to work. He did, however, express the opinion that, as a consequence of her past incapacity,

"...her career prospects have been diminished. She has stated that her absences from work and consequent 'gaps in her CV' have reduced her opportunities for success in applications for positions."

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 circumstances of this case I assess the plaintiff's claim to general damages on the basis of her soft tissue injuries, which have been of a mild to moderate level of intensity, together with her psychological condition. This elevates this claim above a range for moderate soft tissue injuries which do not substantially impact on a plaintiff's ongoing lifestyle or career.

The plaintiff had, as her counsel put it, a "foot in the door" of a potential career in the public service or publishing at the time of the accident. She was clearly a person of some initiative, as her successful return to school and completion of year 12 studies demonstrates. The accident and its impact, physical and psychological, have had a marked impact on the plaintiff. I note that Dr Robbie, in his report to the defendant, recorded his impression on examination in 1996 that

"She did not seem to have the confidence or the dash of the girl she described running away from home at fourteen and making her own way."

This accords with my own impression, and well shows the impact this accident has had on the plaintiff.

I assess general damages at $45,000, with $30,000 attributable for past loss; generating interest of $3,700, a total general damages award of $48,700.

In respect of the plaintiff's claim for economic loss I am satisfied, for the reasons set out above, that the plaintiff's accident caused disabilities were sufficient to establish a loss of earning capacity sufficient to preclude her from employment from the date of the accident until March 1995, when she recommenced full time employment after Comcare payment ceased. This results in an award of damages for past loss calculated, on the basis put forward in the plaintiff's schedule of past wage loss, of $77,811.78, being the period lost to the date the plaintiff ceased work in August 1995. I note that, from March to August 1995, she was in receipt of salary and no claim is made. I thus take $77,811.78 as the appropriate figure for past wage loss, which generates interest of $6,572.55, totalling $84,384.33. I note that incapacity payments to Comcare amount to $62,569.32. I award the sum of $84,384.33 under this head.

There is a Fox v Wood component, based on the differential between Comcare payments and tax paid, of $9,263, which I award.

I am not satisfied that, in the period after her contract expired in August 1995, the plaintiff has demonstrated an ongoing incapacity resulting from her accident caused disabilities which should sound in an award of compensation for weekly loss. It follows from this that I am equally unable to find a quantifiable future ongoing loss. I thus have no need to consider an economic loss report tendered as part of the plaintiff's case projecting a wage loss beyond March 1995 by comparing the plaintiff with a permanent public servant of a similar age in 1991. In any event, there are difficulties in comparing a permanent employee, who enters the public service as a trainee, with a temporary employee, in relation to future promotion opportunities.

The plaintiff claims, for the future, a buffer award to reflect the impact her extended period away from the workforce has had and will have on her employability. Thus put, this would not of itself justify an award, for the claim focuses only on the plaintiff's economic disadvantage, rather than on incapacity reflected in economic disadvantage. I am, however, satisfied from all of the medical evidence cited above that the plaintiff does have an ongoing albeit minor incapacity which will render her less competitive in her efforts to obtain employment. The plaintiff will need to set certain limitations on her employment. While her successful period in 1995 demonstrates that she can function effectively in the workplace, her need to enquire of an employer, willingness to allow her some flexibility is an ongoing disadvantage. The assessment of Dr Robbie also persuades me that, notwithstanding her period in full time work in 1995, she retains a residual incapacity which should be reflected in a modest buffer in respect of economic loss arising after her successful return to full time work and into the future. I award $20,000 under this head.

Out of pocket medical expenses paid by Comcare to date amount to $6,876.06. I am satisfied that this amount is recoverable, although I note from the detailed breakdown of these figures that some monies, amounting to some $395, appears to relate to ergonomic equipment purchased as part of her work placement. I will adjust this award if the parties seek leave to do so when the question of costs is argued.

This amounts to a total award of $169,223.39, which I award. Counsel requested that costs be reserved, and I will hear the parties as to costs.