Jodie Lee Williams v Douglas Michael Baz [1997] ACTSC 65 (12 September 1997)

SUPREME COURT OF THE ACT

JODIE LEE WILLIAMS v. DOUGLAS MICHAEL BAZ
No. SC 505 of
1995
Number of pages - 10
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Negligence - Motor Vehicle Accident - Personal Injury - Rear end collision - Contributory Negligence - Whether plaintiff stopped suddenly without warning and for no apparent reason.

Podrebersek v Australian Iron & Steel [1985] HCA 34; (1985) 59 ALR 529

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash - Soft tissue injury to neck - Loss of earning capacity - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

HEARING

CANBERRA, 3-4, 30 June and 9 July 1997 (hearing), 12 September 1997 (decision)

12:9:1997

Counsel for the Plaintiff: Mr R Williams QC and Mr J Harris

Instructing Solicitors: Pamela Coward & Associates

Counsel for the Defendant: Mr M W Robinson

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $75,583.87.

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 13 July 1989 at a roundabout at the intersection of Erindale Drive and Sternberg Crescent in the Australian Capital Territory. The defendant's vehicle collided with the rear of the plaintiff's vehicle as they were both headed in a northerly direction along Erindale Drive. Liability is in issue. The plaintiff's case is that she was stationary at the roundabout to allow a truck to proceed through, and the defendant failed to slow or stop and collided with her. The defendant's case is that the plaintiff stopped suddenly when there were no other vehicles on the roundabout. The defendant acknowledges that there was a failure to keep a proper lookout, in that the defendant was watching towards his right to observe any other vehicles, but says that the plaintiff's decision to stop suddenly without reason and without warning amounts to contributory negligence.

The plaintiff was born in 1970 in Brisbane, and moved to Canberra in 1982. She completed her secondary education at Erindale College. She joined the ACT Health Department in January 1989, straight from College, as a dental nurse. At that time there was no formal educational course for dental nursing, and persons received on the job training. The plaintiff says that she had been a healthy and active young woman. She had been interested in gymnastics, and was a qualified coach. She says that she enjoyed her work, and was in good health, apart from colds and flu, which she says were something of an "occupational hazard" for persons working as a dental nurse in the school dental programme, as she was at the time.

Liability - The Accident.

At the time of the accident the plaintiff had been licensed for about twelve months to drive a car, and was driving her mother's vehicle, which was a 1967 Holden sedan. Despite it's age, this was the family car, and on the plaintiff's evidence, supported by her mother, it was well maintained and cared for, and was in good working order. It had one characteristic of relevance, and that is that it had to be stationary for it to be put back into first gear.

The plaintiff was driving from her home in Tuggeranong towards her then place of work, at Hughes Primary School, at around 8 am. She was driving along her customary route to work. She says that it was a dry cold day. She says that, as she approached the roundabout, she observed a truck negotiating a right turn around the roundabout, and she stopped the car, in the left hand lane on the edge of the roundabout. She says that as she was stationary, and changing back into first gear, she observed a dark four wheel drive vehicle coming up behind her, which was not slowing down. She says she closed her eyes and the vehicle struck her vehicle.

The defendant says that he was driving along Erindale Drive in his Hilux four wheel drive at around 8.15 on the morning of the accident. He says that traffic was moving slowly, and described traffic conditions as "fairly heavy". He recalls that the 1967 white Holden was before him. I will set out his description of events that followed:

"Well, just tell us, at what point did you first stop behind it?---I stopped behind it probably about 20 metres before the roundabout, and the vehicles just kept easing their way through the roundabout.

Vehicles in front of the Holden?---In front of the Holden, yes.

Right, well you just tell the Master, in your own words please, what happened after that. The vehicle started moving off, and you moved off and stopped again?---The white Holden came to the, I think its the dogged line at the roundabout, stopped waited for the traffic to clear.

Was there anything in front of the white Holden at that point?---Well, not when it finally got there, no.

Yes?---So, the white Holden stopped and then the traffic cleared and the white Holden drove off, and I, because there wasn't any traffic coming on the roundabout, and I drove off about 5 metres to 8 metres, approximately, about a length of a car, and the white Holden suddenly stopped, and I went into the back of it. My vehicle drove into the back of it, I was in first gear.

Yes, well as the white Holden drove off, was there any vehicle on its right in the roundabout, within a collision distance?---No.

And as you followed it, what did you do?---It took only about one second.

Yes?---And the vehicle in front of me drove off and suddenly stopped and I couldn't stop, I just went straight into the back of it. Because I didn't know it was going to stop, it stopped for no apparent reason.

Where were you looking when the vehicle moved off in front of you?---Well it - the vehicle moved off and as I glanced to the right and the back, just to make sure there wasn't any more traffic, there wasn't any more traffic, and before I could breathe I was in the back of it.

Your vehicle struck the back of the Holden?---The back of the Holden.

Was the Holden stationary at that point in time?---Yes, yes.

Was there any reason that you could see why the Holden had stopped?---None whatsoever."

It is apparent from this version of events, which is the version which the defendant urges me to accept, that primary liability is made out, in that the defendant acknowledges that he was watching the road towards his right rather than the vehicle in front of him as he advanced through the roundabout. In written submissions the defendant's counsel admits, properly, that this involves an element of failing to keep a proper look out, but says that, on this version, there was no truck or other vehicle coming through the roundabout from the right, and so no reason for the plaintiff to suddenly stop, and pleads this as contributory negligence.

The defendant was firm in cross examination that he had observed that there was no other vehicle on the roundabout. He asserted that the impact did not push the vehicle forward, and that there were no skid marks.

The defendant says that after the impact the plaintiff got out from her car, and said "Sorry" to the defendant.

The plaintiff described the impact as violent. She estimated that her car was pushed 15 to 20 metres forward from the point of impact to where it came to rest.

The plaintiff said in her evidence that she had a conversation with the defendant after the accident and they exchanged names, and they went down to the police station, which was just around the corner from the accident site. Her counsel opened that she remembered apologising to the defendant, and she acknowledged in cross examination that this was so. She says that she did this because she

"...was in shock, I was scared, it was the first accident I'd been in and I was shaky."

She denied that she apologised because she stopped suddenly and for no reason. The plaintiff was asked

"So why did you, if you had just remained stationary and were run into by this fool who couldn't see you apparently, why did you apologise?---Because I was shaky, I was in shock."

She acknowledged, however, that she was able to drive to the police station, and then on to work after the accident.

Of the two versions of the accident, I prefer the version of the defendant. I find much of what the plaintiff has said exaggerated. I cannot accept that the collision pushed her vehicle forward some 15-20 metres, as she claims. I find the defendant's version, with his description of heavy traffic at around 8 am and a regular stop and start as vehicles flowed through the roundabout, inherently credible. This is consistent with an impact as described by him at relatively low speed as he was proceeding after stopping at the intersection. The defendant's version of events also best explains the uncontradicted evidence that the plaintiff immediately apologised to the defendant after the collision.

The defendant's credibility was not affected by cross examination, and his version of events itself involves an acknowledgement of primary liability. The plaintiff, who was subject to extensive cross examination in relation to many aspects of her claim, was, in my judgment, shown on a number of occasions to have been unreliable, and I will set these out in considering the question of damages. This is a further reason for a conclusion that, on the balance of probabilities, I find that the accident occurred in circumstances as contended for by the defendant, that is, that the plaintiff and the defendant were stopped in line at the roundabout, that the plaintiff proceeded with the defendant following, and that, as the defendant was observing the roundabout to the right, where no traffic was observed and none existed, the plaintiff stopped suddenly, with an impact then occurring. The impact occurred while the defendant was in first gear and accelerating from a stationary position, and the vehicles were not moved forward to any degree.

Damages

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 order to assess the appropriate level of damages it is of course necessary to make findings as to the disabilities or injuries which have been produced by the motor vehicle accident. In this matter a very large volume of medical evidence was produced. The plaintiff's case is that the accident has produced quite disabling neck and back pain, and as a consequence, the plaintiff has been forced to take very considerable time off work, and has been and remains physically incapable of any work, or at best retains only a marginal residual capacity. The injuries said to produce these disabilities are soft tissue in nature.

Dr Chandran, consultant neurologist, who has provided a number of reports for the plaintiff, makes it clear that there is no radiological or neurological abnormality capable of objective observation. As well as medical reports generated in the normal way, there were a number of documents arising from public service assessment and work placement procedures tendered in this hearing, many of which had been tendered and been subject to cross examination in earlier proceedings in the Administrative Appeals Tribunal in relation to Comcare proceedings.

Dr Harrison, who was the plaintiff's general practitioner at the time, reported in August 1990 that the plaintiff presented on 13 July 1989 complaining of slight pain over the trapezius and deltoid muscle groups. He arranged a medical certificate for two days, and analgesia. He said that the plaintiff still complained of intermittent neck pain over the following eight months, and was seen again in May 1990, when an x-ray and later a CT scan showed no abnormality. He described her as having intermittent pain and headaches and mild restriction of neck movement. He said that

"I feel this is a soft tissue problem which is settling and should not cause long term complications. I feel that under some circumstances, work may aggravate this."

The plaintiff acknowledges that there were no specific complaints of neck or back pain to her doctor in the period from the accident to May 1990, although she did attend her doctor for other reasons. She said

"I know that I was in the pain all that time. I had been told that it was nerve and muscle damage and that it would go away."

She said that during this time she was struggling at work with the pain. I find this hard to reconcile with the visits to her doctor with no record of neck or back pain during this period.

The plaintiff had commenced her employment with the Public Service in January 1989, and in accordance with normal practice was required, towards the end of her first year, to undertake medical examinations in relation to her permanent appointment. The defendant places considerable emphasis on a document, signed by the plaintiff, in October 1989 and tendered as Exhibit 8. In this document she answered "Yes" to a question asking whether she had ever had neck or back injury. There is then a comment:

"Accident 1989. Back strain and neck strain to MVA 2 months. Good recovery."

The plaintiff denies that this document is in her handwriting. She was asked whether she signed the document knowing it to be true, and said

"I presume so, I don't recall filling it in."

She later said that

"I believed that I was getting better so I thought they were accurate at the time."

She denies that she would have told the doctor that she had made a "good recovery" from her 1989 accident. I found the plaintiff's answers to the cross examination in relation to this document unsatisfactory and evasive.

The plaintiff was also shown a medical questionnaire which had been completed in March 1990, and which was tendered as Exhibit 7. In this the plaintiff answered "No" to questions asking whether she had ever suffered from depression or sleeping difficulty. It is her case that she has been suffering from these conditions, attributable to the accident, from shortly after the accident. She said that she answered "No" to the question about sleeping difficulties and depression in 1990 because she had been told that it would go away.

The plaintiff also answered that she had never suffered from migraines. She now acknowledges that she suffered from migraines before the accident, but "of a different type", and claims that she now suffers from migraines as a result of the accident. She said that she could not recall why she had answered "No" to this question, and then said that she had been told that it would all go away. It was apparent from the course of cross examination that the plaintiff had been confronted with these forms in other proceedings before the Administrative Appeals Tribunal in 1996. I formed the impression that her answers were evasive and unconvincing.

The plaintiff maintained that she had answered "No" to a variety of conditions because Dr Harrison had told her it would go away. She acknowledges that the clinical notes show that she only consulted him at the time of the accident and then in May 1990.

The plaintiff says that her answers of "No" to complaints of neck and back pain were because of what she had been told by her doctor. I find this unconvincing. It was put to the plaintiff that the reason she said "No" to these conditions was because she had by early 1990 recovered from the injury she suffered in the motor accident. She denied this, and said that she was still suffering pain, but her doctor told her it would go away. I cannot accept this statement. Dr Harrison did say that when he saw her in July 1989 he formed the view that she had a soft tissue problem which was settling and would not cause any long term complications. But I cannot accept that because of this the plaintiff, who describes her condition through 1989 as quite severe, would have denied symptoms as she did in the relevant forms if they were causing her the difficulties she claims.

The plaintiff's history from 1990 onwards has been one of increasing levels of complaint of lower and upper back pain, neck pain and headaches. She says that she battled through 1990 continuing to work as a dental nurse, and in May 1991 she was redeployed to a clerical position at the Tuggeranong Health Centre, and changed from full time hours to 25 hours per week. She maintained this employment, with, she says, some difficulties, until she commenced maternity leave in October 1993. She returned to work at the Tuggeranong Health Centre in April 1994, working for 30 hours per week. She says that she continued to suffer pain and depression.

From November 1994 she began seeing a new general practitioner, Dr Brown. Dr Brown has diagnosed her as suffering from a chronic soft tissue injury and secondary depression. Dr Brown formed the view that it was necessary for the plaintiff to have considerable time off work, which he attributed to the consequences of her accident related disability. The plaintiff was essentially absent from work on Dr Brown's certificate from late November 1994 through to April 1995, when he suggested a return to work starting at 2 hours per day. This increased to 4 to 5 hours per day by July 1995. In August 1995 the plaintiff left the public service, and commenced a new job as a receptionist working around 20 hours per week for a general practitioner in a private practice in Conder, a southern suburb of Canberra.

The plaintiff separated from her husband on 4 December 1995. On 8 December 1995 Dr Brown certified her as unfit for work. In January 1996 the plaintiff's employment with Dr Nimmo was terminated. I am satisfied from the evidence of Dr Nimmo that this was because Dr Nimmo had formed the view that the plaintiff had been untruthful in her dealings with Dr Nimmo.

Dr Nimmo said that she was aware that the plaintiff was in receipt of compensation from Comcare in respect of neck and back injury. She said that the plaintiff worked for about 22 hours a week, and appeared to be coping with her work. She said that the plaintiff made no complaints about physical difficulties with her work, or about pain restrictions. She did acknowledge that in a statement prepared for the purposes of the AAT hearing she had said, in relation to her hours of work

"She normally worked five to five and a half hours in a day. Some days she did six hours, after which she said she was a bit stiff."

Dr Nimmo was disappointed with the plaintiff's performance at work, with her main complaint being "too many errors and mistakes". In the last week that she worked with Dr Nimmo the plaintiff came to work very upset, and told Dr Nimmo that she had separated from her partner, the father of her child. The next day Dr Nimmo gave her what she described as a formal warning about her work standards. The plaintiff was at this time involved in a task of ensuring that a backlog of patient files were properly registered. On 7 December Dr Nimmo says that the plaintiff came into her office and told her that the numbers register was up to date, and that as she had finished her shift she was leaving. Dr Nimmo denies that the plaintiff said that she was in pain. Dr Nimmo denies the plaintiff's version of events, which is that she (Dr Nimmo) said

"You look like you're in pain, perhaps you should go."

The next day, 8 December, Dr Brown certified the plaintiff as completely unfit for work, and she has remained so, in his opinion.

The plaintiff phoned Dr Nimmo's practice later in December, and in January, to say that she was still unfit for work. In January Dr Nimmo noticed that the work that the plaintiff said that she had performed in December had not been done. On 15 January the plaintiff was handed by Dr Nimmo a notice of dismissal, dated 12 January 1996. This document was tendered, over objection by counsel for the plaintiff. It states

"Due to further errors discovered in your absence it has been decided to terminate your employment. On 7/12/95 you told me that the numbers register was completely up to date. This was in fact not true, as the 900's had not been written up due to the fact that there was no book for this series of numbers. You must have realised this but you did not say anything. Therefore to say that all of the numbers had been written up was either incompetence or a lie."

In cross examination the plaintiff insisted that she had told Dr Nimmo on 7 December that her co worker had not brought in the book for the 900's. This was denied by Dr Nimmo. On the whole, I prefer Dr Nimmo's version of these events to the plaintiff's.

Dr McEwin, a consultant orthopaedic surgeon, examined the plaintiff on a number of occasions for the defendant. He notes that there is no objective evidence of injury, a finding consistent with Dr Chandran's reports. He formed the view that the plaintiff may have had a musculo-ligamentous injury of the neck and to a lesser degree of the lower lumbar spine, but has said that, by the time of his examinations, which commenced in August 1995, he was unable to detect any disability. He conceded in cross examination that this meant, in effect, that the plaintiff was either consciously or unconsciously exaggerating her complaints. Dr McEwin relied on psychiatric reports obtained by the defendant to then exclude a psychiatric cause for her ongoing complaints.

Dr Veness, a consultant psychiatrist, examined the plaintiff for her solicitors. He concluded that the plaintiff suffered a whiplash injury which has produced a condition of

"...fibromyalgia, which affects muscles, tendons, ligaments and other soft tissues in the neck, shoulders and upper back. The condition is characterised by chronic pain and stiffness of the muscles together with pain and tenderness at their points of insertion into bone. It is chronic and there is no cure."

He then linked this chronic pain to a depressive illness. He concluded that at the time of his examination, in June 1996, she had a mild reactive depression, although he concluded that she has had episodes of major depression, which he said were treated effectively by Mr Nomchong, her treating psychologist.

Dr Tym, who examined the plaintiff for the defendant in October 1995 found

"...nothing clinically abnormal about the client's mental state."

Dr McEwin noted that Dr Veness' diagnosis of "fibromyalgia" amounts only to a description of ongoing soft tissue injury, which is the condition that he noted that she claimed to suffer from, but which he was unable to verify.

Drs Andrews and Hopkins, respectively a consultant neurologist and consultant orthopaedic surgeon, were of the view that the plaintiff sustained minor soft tissue injuries in the accident, which have become overlaid by a gross psychological factor. Dr Hopkins said

"I do not doubt she has some discomfort in her back and neck, nevertheless, I do not consider it is of a severity which can cause her present reactions to examination."

I find that the plaintiff suffered soft tissue injuries at the time of the accident. These caused the plaintiff to take some time off work. By late 1989 and early 1990 the plaintiff described her condition as resolved. She had not sought further treatment from the time of the accident to May 1990.

The plaintiff's mother said that she continued to show signs of pain. The plaintiff herself maintains that she was having difficulty at work during this period.

It is notoriously difficult to assess damages for injuries where there is no objective measure of the injury. The plaintiff's claim for soft tissue injury relies solely on her subjective complaints. In a number of areas I have had difficulty accepting the plaintiff's version of events. The diagnosis by the general practitioner, Dr Brown, of chronic soft tissue injury depends on his acceptance of the plaintiff's complaints, and he was adamant under cross examination that the plaintiff did suffer genuine soft tissue injury.

I find that the plaintiff did suffer a soft tissue injury, and that she continues to complain of this injury. I am not, however, satisfied that this injury is at the level complained of.

In relation to general damages I assess the plaintiff on the basis of ongoing soft tissue injury to the neck and upper back and some past depressive illness. I am not satisfied that this condition has created ongoing psychological difficulties. I note that the plaintiff was distressed at the break up of her relationship in December 1995 and that it was in this week that the plaintiff, who hitherto had been working 22 hours per week at Dr Nimmo's practice with no observable difficulties other than some stiffness, was certified by Dr Brown as totally unfit for any work due to a combination of soft tissue injury and depression.

I note that Dr Tym found nothing clinically abnormal in the plaintiff's psychological condition, and Dr Veness found mild reactive depression in June 1996, but concluded that there had been more severe episodes. Dr Skinner could find no recognisable psychiatric illness in February 1996, and said that past difficulties were, in her opinion, related to relationship difficulties.

The plaintiff claims that her weight has increased significantly as a result of her injuries, and resulting inability to exercise. I note that she presently weighs about 100 kgs. She says that her pre-accident weight fluctuated between 60 and 70 kgs.

Dr Harrison, who had been the plaintiff's family doctor, noted that the plaintiff's mother was of a large build, which is consistent with her presentation when she gave evidence. Dr Brown noted that the plaintiff had a lifelong struggle with her weight. I am not satisfied that the injury has had a significant impact on the plaintiff's weight gain.

The plaintiff had undergone extensive investigations in her late teenage years for a range of joint pains, which she described as "growing pains". I am satisfied that these investigations excluded any underlying arthritic condition, and that this episode is not related to her present complaints. She continues to complain of ongoing pain, and there are claimed limitations in relation to her activities of daily living.

Taking all of these factors into account, I assess general damages in the sum of $25,000. Allocating $15,000 of this to past loss generates interest at $2,450, making a total award of general damages of $27,450.

The plaintiff's claim for past wage loss is premised on the assumption that all her time off work has been due to her accident caused injury. I am not satisfied on the evidence before me that this is so. In particular, I cannot accept that the plaintiff has been unable to work at all due to her accident caused disability from the time she left Dr Nimmo's practice in December 1995.

The claim for past wage loss is particularised to $64,557.48 to the end of the 1997 financial year. The claim is modest in the years up to 1994-5, averaging a claimed net wage loss due to the motor vehicle accident of $2,269, but assumes a total loss of income from December 1995, which I do not find justifiable. I award a sum of $20,000 by way of a discretionary global sum to cover past income loss, inclusive of interest.

The plaintiff's claim for future loss is based on a total incapacity to the end of the plaintiff's life, based on a loss of $479 net per week, generating $491,796. Counsel for the plaintiff conceded that I might find that the plaintiff had a residual capacity, which he said could range up to her previous working hours of some 22 hours per week, and suggested an alternative buffer approach. I do not find a claim based on a total incapacity to work consistent with the evidence. Nor do I find that the plaintiff is left with a markedly reduced earning capacity. In my judgment, and considering all of the evidence, the plaintiff's ongoing pain and discomfort from soft tissue type injury can only justify a buffer of modest proportions. I accept that her previous career of dental nursing may now be closed to her because this requires a degree of physical effort and the adoption of uncomfortable postures while assisting in procedures. But the plaintiff had developed skills in clerical work which she continues to possess. I am only able to justify a buffer of $25,000 on these findings. On all of the medical evidence I am not satisfied that she can only work for 22 hours a week.

Out of pocket expenses were arithmetically agreed at $26,726.95, which I award.

The plaintiff claims for ongoing out of pocket expenses at $1,200 per year, a total claim of $36,000, including $500 per year for gym membership. As I have found that her accident caused disabilities now amount to ongoing soft tissue injury I do not find this claim made out. A modest discretionary sum of $4,000 for future out of pocket expenses is all that I feel can be justified.

The plaintiff has continued to undertake self care and household duties. She claims a sum of $5,000 by way of Griffiths v Kerkemeyer damages for assistance from her husband and her mother at around the period of the birth of her child. I am not satisfied that this is made out on the evidence.

There is a Fox v Wood claim for $4,800, which I allow.

There was a claim for loss of opportunity as a commercial gym instructor. I am not satisfied that this claim is made out.

This amounts to a total award of $107,976.95. It is of course necessary to apportion this award of damages due to my findings on liability. The defendant urges that this is a case where liability ought be set at equal levels. I do not think this is appropriate. Even accepting the defendant's version of events, he ought, as the driver following, have kept the car ahead under observation and kept a safe distance. The plaintiff, on the defendant's version, had only just moved off, and a prudent driver would have kept her under observation and remained a safe distance behind. Although I find that the plaintiff stopped suddenly and without warning, I find that the greater degree of liability ought fall to the defendant.

Taking all of the evidence into account, and observing the test for contributory negligence set out in Podrebersek v Australian Iron & Steel [1985] HCA 34; (1985) 59 ALR 529, I assess liability for the accident at 70% to the defendant and 30% for the plaintiff.

This results in an award of damages for the plaintiff in the sum of $75,583.87, which I consider to be appropriate in all the circumstances.