Helen Gwenth Mcalpin v Patricia Howlett and Christopher James Williams [1997] ACTSC 61 (4 September 1997)

SUPREME COURT OF THE ACT

HELEN GWENTH McALPIN v. PATRICIA HOWLETT and CHRISTOPHER JAMES
WILLIAMS
No. SC 232 of 1996
Number of pages - 7
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 and low back - Disc Prolapse - Possibility of having to undergo back surgery in the future - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245

HEARING

CANBERRA, 11 August 1997 (hearing), 4 September 1997 (decision)

4:9:1997

Counsel for the Plaintiff: Mr D Kennedy

Instructing Solicitors: Elrington Boardman Allport

Counsel for the Defendant: Mr R McIlwaine

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $94,993.10.

2. The defendants 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 18 February 1994 at the intersection of Constitution Avenue and ANZAC Parade at Reid in the Australian Capital Territory . The plaintiff was stationary at traffic lights and was struck from behind by another vehicle. Liability for the accident was admitted before the trial, and the matter proceeded before me by way of an assessment only.

The plaintiff was born in 1963. She completed her secondary education at Dickson College in Canberra in 1981, and in 1982 completed a one year certificate course in secretarial studies at the then Canberra Institute of Technical and Further Education, now the Canberra Institute of Technology. On successful completion of these studies she sat the entrance examinations for the Australian Public Service, and obtained a clerical position with the Institute of Technology, where she has worked ever since, achieving successive promotions to her present position of Senior Administrative Officer. The plaintiff is presently undertaking university studies on a part time basis, as well as continuing in her employment with the Institute.

There is broad agreement between the medical expert reports tendered by both the plaintiff and the defendant in this matter in relation to the nature of the injury suffered by the plaintiff in the motor vehicle accident. Immediately after the accident the plaintiff complained of pain in the neck and back, as well as shock. She went home to bed, and the day after the accident, which was a Saturday, presented to a 24 hour medical clinic. The doctor there told her that she had soft tissue injuries, and treated her with anti inflammatory medication, rest and physiotherapy. A plain x-ray revealed some degeneration of the neck and lower lumbar spine. She took two days off work, and her thoracic pain settled, but she continued with pain to the neck and lower back.

She attended her normal general practitioner on 21 February and was treated by a locum, who noted reduced neck movement and tenderness at L4/5 and L5/S1. She continued on Voltaren for a time, and was able to return to work, but not to take up much of the physical activity which she had previously enjoyed. She had recurring attacks of low back pain. Her neck pain began to ease, but the low back pain persisted.

In July 1995 the plaintiff drove to Queensland for a holiday. She gave evidence that over the years she had undertaken many long driving holidays, without any difficulties. On this occasion she found that the long period in the car caused low back pain of a severe degree. She required time off work on her return, and in early August she saw her general practitioner who noted a restriction of movement in her toe, and considered that her low back pain was probably due to an L5/S1 disc lesion.

A CT scan was performed in April 1996, which noted

"At L5/S1 there was a small central disc prolapse. Disc material was indenting the thecal sac anteriorly and abutting the left S1 nerve root as it exited the thecal area."

Dr McEwin, who examined the plaintiff for medico legal purposes at the request of her solicitor in July 1996, diagnosed a disc prolapse of the L5/S1 disc with irritation of the left sided S1 nerve root and consequent left sciatica. He also diagnosed musculoligamentous injury to the thoracic spine which had resolved, and musculoligamentous injury to the cervical spine which was still causing some problems. He favoured conservative treatment, and indicated that there was a good prognosis for recovery.

This report is broadly consistent with a report prepared by Dr Andrews for the defendant's solicitors in September 1996. He found that the plaintiff was

"...having continuing symptoms from the L5/S1 disc prolapse which presumably occurred at the time of the accident."

He expressed the view that the plaintiff's

"...symptomatology is likely to persist in much the same manner over many years. There is a small possibility that the disc could progress requiring a simple disc excision without fusion."

I am satisfied that as a result of the motor vehicle accident the subject of these proceedings the plaintiff suffered a prolapse to her L5/S1 disc, which continues to cause low back pain. The principal issue at the hearing was the extent to which this pain and discomfort was continuing, and the likelihood of surgical intervention to improve or resolve the matter. I note that Dr Andrews, the orthopaedic surgeon who examined the plaintiff for the defendant, conceded that there was a "small possibility" that the disc could require surgery. This is contrary to the view of Dr Kennedy, a rehabilitation physician who examined the plaintiff for the defendant in November 1996 and who said

"In my opinion conservative treatment is appropriate. There is certainly no indication whatsoever for surgery or invasive therapy."

Dr Andrews' opinion is consistent with the view expressed in the report of Dr McEwin, where he said

"I would favour conservative treatment for her lower lumbar spine with pain relief, exercises particularly swimming, walking and static exercises as she has already been told by her doctor, and limitation of her activities to avoid those that aggravate her back pain. I do not consider that surgical treatment is necessary at the present time but it may be necessary later."

I prefer the opinions of the orthopaedic surgeons in this matter to that of Dr Kennedy, who is quite dismissive of the likelihood of surgery.

On the state of the written medical evidence the plaintiff emerges as a person with a genuine and well documented physical injury to her back, occasioned by the trauma of the motor vehicle accident, and with ongoing pain and disabilities. The written medical evidence indicates a possibility, nothing more, of surgery, and a fairly good prognosis for eventual recovery without surgery. The plaintiff has remained in full time employment, with some time off work when her back becomes inflamed, and in addition has commenced part time university studies. The plaintiff has tried a range of alternative therapies to provide relief for her back, including acupuncture, which was not helpful, massage, which provides relief, and osteopathic treatments, which she finds helpful.

Ms McAlpin felt that she had been slowly recovering from the effect of the collision for the first two years, but that her condition has been stable now for about twelve months. She acknowledges that surgery was raised as an option some time ago, but she was optimistic about recovery without surgery, which given the state of the written medical evidence, is entirely reasonable. She said that she would now seriously consider getting advice as to surgery, as she is frustrated at not being able to participate fully in many activities which she used to enjoy and which her husband continues to enjoy, such as skiing, camping and bushwalking. She says that she is distressed by not being able to fully participate, and at having to be cautious and guard her back when she does take part in activities, such as light bushwalking, or an hour and a half of gentle skiing which she tried this year. She now feels that her condition will not change without an operation, but that it may improve with an operation.

At the hearing it was indicated that the plaintiff would give evidence that her condition had deteriorated, and a request was made that Dr McEwin be permitted to remain in court to hear her evidence, so that he could bear this in mind when expressing his views on the likelihood of surgery. I permitted this.

Dr McEwin said that, after listening to the plaintiff's evidence, he was less hopeful that she would have a complete recovery without surgery. The fact that there is objective evidence, by way of the plaintiff's difficulty with her toe, that the disc is impacting upon her nerve, means that he feels that it is more likely that she will continue to have problems unless surgery is undertaken. He expressed the view that a prolapse at this location would be a good prospect for correction by way of fusion.

The effect of the evidence of the plaintiff and Dr McEwin is to add a considerable degree of uncertainty as to the future course of the plaintiff's condition and likely recovery. On the medical reports a clear picture was emerging of a genuine injury with a good prognosis for recovery. On the evidence before me at the hearing, however, the likelihood of the injury resolving itself must be taken to have considerably reduced, but the likelihood of successful surgical intervention is strong.

Where a person suffers an injury as a result of the negligent actions of another, the law requires that they be compensated. 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'."

Where the assessment of loss involves speculation as to future events, the court must take all of these factors into account. This is a different process from finding whether, on the balance of probabilities, a past event has occurred. In Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642 the Court (Deane, Gaudron and McHugh JJ) said

"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. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."

On the facts of this case a degree of speculation about the future was inevitable. On the evidence of the written medical reports, that would have involved speculation based on the likelihood of eventual resolution of the plaintiff's complaints. Following the oral evidence of the plaintiff and Dr McEwin, however, the likelihood of the plaintiff's condition resolving must be taken to have greatly reduced (which would tend to inflate the quantum of damages), but on the other hand the likelihood of successful surgical intervention that would resolve the plaintiff's condition must be taken to have increased (which would tend to reduce the quantum of damages, while adding a sum for the likely cost of the surgery).

In relation to general damages, I assess the plaintiff on the basis of a person who has suffered both soft tissue injuries and a disc prolapse as a result of the accident. While the soft tissue injuries are largely resolved, the plaintiff continues to suffer pain and inconvenience as a result of the injury to her L5/S1 disc. Before the accident the plaintiff engaged in a range of vigorous sports and recreational activities. She enjoyed netball, tennis, squash, skiing and bushwalking. She has had to avoid any body contact sports, and limit her outdoor activities, although she has taken up swimming and cycling by way of exercise to improve her back. As well as the frustration of not being able to enjoy her previous level of physical activity, the plaintiff is frustrated at being unable to participate as before in these activities with her husband, and is always conscious of guarding or protecting her back. The plaintiff has continued in her career with some limited time off work, and has been able to take on part time university studies. She is conscious of ongoing pain, which flares up from time to time on activity, and can require periods of immobility. She continues to take medication. While she was originally advised that her problems would resolve, she is now coming to the realisation that surgical intervention, which may offer a very good recovery, is a real possibility.

I award $40,000 by way of general damages, with half attributed to past loss, generating interest of $1,419, a total award of general damages of $41,419.

The plaintiff claims a limited sum in respect of past wage loss, being $6,500 in respect of some 42 days taken off work as a result of the accident. I award this sum which, with interest calculated in accordance with the Practice Directions, amounts to $7,650.

In respect of future loss of earning capacity, the plaintiff claims a likely time off work of 2.8 weeks per year, which is the amount taken off work to date, projected across her employment to age 65 - a total claim of $33,522. She also claims a period for 12 weeks away from work for an operation, and a sum by way of general loss of earning capacity. I am not satisfied that this is an appropriate case for projecting future income loss to retirement age by way of the time taken off work to date. The written report of Dr McEwin which was optimistic suggested that the plaintiff could look forward to eventual resolution of her complaints. His opinion after hearing the plaintiff was that her condition was now unlikely to spontaneously resolve, but that surgical intervention was likely to lead to resolution of her complaints. In either scenario, it is unlikely that the plaintiff would be taking a regular time off work to retirement age, and I am not satisfied that this aspect of the claim is properly made out.

In the alternative, the plaintiff makes a claim by way of a buffer in respect of future income loss. This is clearly an appropriate case for such an award. The plaintiff's career to date has involved steady advancement in the Australian Public Service and now the Australian Capital Territory Public Service to a position of Senior Administrative Officer in the Canberra Institute of Technology. This involves a mix of functions and some, but generally not prolonged, keyboard duties. The medical evidence supports the view that this is an appropriate range of activities for the plaintiff, but that she should avoid and is permanently unfit for heavy or medium work, or work involving bending or lifting. In considering this aspect of the claim, I must bear in mind all of the Malec v Hutton factors - the possibility of the injury resolving, or stabilising at its present level (which I find to be more likely) against the possibility of successful surgical intervention (which I find to be likely). I award $20,000 under this head of damages.

I am satisfied that it is more likely than not that the plaintiff will undertake surgery, and the claim for $8,400 by way of 12 weeks away from work for the operation and recuperation is made out. This amounts to a total award for future loss of earning capacity of $28,400.

Past out of pocket expenses have been agreed at $3,524.10, which I award.

Future out of pocket expenses were particularised to include general practitioner visits, physiotherapy, massage and osteopathic care, medication and exercises, as well as the costs of an operation. Dr McEwin indicated that he did not agree with some aspects of the plaintiff's present care regime, and the claim for massage and exercise was not pursued.

I am satisfied, for the reasons given above, that the claim for the costs of surgery is made out. Dr McEwin gave an estimate of $8,342 - $9,360 for the cost of such surgery, and I award $9,000. I award this because I am satisfied from the evidence that this procedure will give the plaintiff substantial relief. It follows that, having made this award, I am not satisfied that it is appropriate to work out the average cost of treatment to date, excluding some items of expenditure that Dr McEwin felt were not appropriate, and then project this to the future using the life tables. Such an approach would be appropriate where the plaintiff's condition was expected to be stable, but the claim for, and award of, a substantial sum for future surgery is premised on that surgery having a substantial beneficial impact on the plaintiff's condition, such that ongoing accident related expenses would be considerably below the ongoing rate to date. Taking into account all the factors involved in such a projection, I award $5,000 as a discretionary sum for other future expenses, resulting in a total award for future out of pocket expenses of $14,000.

There is a Griffiths v Kerkemeyer claim based on two hours per week of gratuitous care at $15 per hour projected out on the life tables for the rest of the plaintiffs life, leading to a claim of $39,360. I am not satisfied to the requisite standard that such a claim is made out. There is a preliminary difficulty with making a straight projection based on 2 hours of assistance given the uncertainty concerning the likely course of the plaintiff's condition. As is apparent from my assessment of damages, I am awarding the costs of surgical intervention and taking into account the likelihood of improvement following surgery, and it would follow that the plaintiff's likely need for domestic assistance would be reduced.

The plaintiff gave evidence that as a result of her painful lower back, she and her now husband have shared duties around the house. Her estimate is that her husband is doing some 2 hours of additional work about the house. I accept that her condition has limited her ability to undertake heavy household tasks. This was the view of Dr McEwin in his report, and in his oral evidence he said that the division of household labour was "reasonable" in so far as the plaintiff's husband undertook the heavier duties. While I accept that a sharing of household tasks in such a way that the plaintiff's husband undertakes some of the heavier tasks, while the plaintiff continues to work and undertake the lighter duties around the house is "reasonable" as described by Dr McEwin, I am not satisfied that the plaintiff has established, on the balance of probabilities, the reasonable need for the services claimed on the test laid down in Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 and Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. I am not satisfied that the arrangements described by the plaintiff as the basis of this claim are other than the ordinary incidents of a domestic relationship and the give and take of the parties to it. As Deane and Dawson JJ said at 343 in Van Gervan v Fenton, the ordinary give and take of a domestic relationship will not give rise to a damages claim unless

"...such services will be taken out of the area of the ordinary give and take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services."

I decline to make an award under this head of damages.

This amounts to a total claim of $94,993.10, which I am satisfied is appropriate in all the circumstances.