Elizabeth Hart v Michael Mcglynn [1997] ACTSC 67 (12 September 1997)

SUPREME COURT OF THE ACT

ELIZABETH HART v. MICHAEL McGLYNN
No. SC 823 of 1994
Number of
pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft tissue injury to neck - Headaches - Pre-existing work related injury to right arm - Prior motor bike accident - Pre-existing headaches - Aggravation - Causal link - Subsequent aggravation of symptoms during pregnancy and post-natal period - No Issue of Principle.

HEARING

CANBERRA, 25-26 August 1997 (hearing), 12 September 1997 (decision)

12:9:1997

Counsel for the Plaintiff: Ms P Burton

Instructing Solicitors: Romano & Co

Counsel for the Defendant: Mr P J Deakin QC

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $39,810.

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 that occurred on 8 October 1992 at Latham in the Australian Capital Territory. The plaintiff was the passenger in a car being driven by her partner and was stationary at an intersection. The defendant collided with the rear of the vehicle in which the plaintiff was a passenger. Liability was originally denied, but had been admitted by the time the matter came to hearing, and the matter proceeded by way of assessment only.

At the time of the accident the plaintiff was a public servant, but she had been for some time absent from the workforce and in receipt of compensation in relation to a work related injury. The principal issue for determination in the hearing before me was the extent to which the plaintiff's present inability to work is related to the effects of the motor vehicle accident or the work related injury.

The plaintiff was born in October 1965 in Sydney. She completed her secondary education, and successfully undertook a course of study towards a Bachelor of Arts degree at the Australian National University. While a student, she undertook a number of part time jobs such as waitressing, bar work, and some receptionist type work. Before she had competed her degree she obtained a position in the Australian Public Service as an Administrative Services Officer Grade 1 in the Department of Immigration. She later completed her degree.

The plaintiff says that she was at this time a fit and active young woman. She had played A grade netball, and enjoyed swimming, tennis and aerobics. She enjoyed sewing, and making her own clothes. She undertook all household tasks and enjoyed gardening. She was at that time in a relationship with her present partner, and her aspirations were to develop a career in the Public Service, and at some time in the future to have a family, but to return to the workforce and continue with her career after the birth of her children.

By 1989 the plaintiff began complaining of pain in her right arm. She consulted her general practitioner on 4 September 1989 complaining of pain in the right arm, radiating to the shoulder. Dr Lai diagnosed regional pain of the right arm due to repetitive work. She was off work for a period, and commenced a graduated return to work in February 1990. She was back to full time duties by November 1990, but in February 1991 again consulted Dr Lai who put her off work until July 1991, when she commenced a graduated return to work. She was unable to return to full time work, and in February 1992 Dr Lai again certified her as unfit for work. In his report of 10 April 1992 he said that the plaintiff

"...has been suffering from recurrent pain in her right wrist, forearm and trapezius region of her right shoulder since 1989 and has been diagnosed as having chronic pain syndrome related to over use at work."

This condition has been extensively investigated. It is clear from medical reports tendered by the defendant that there is a considerable degree of scepticism on the part of some doctors who have examined the plaintiff for Comcare surrounding this complaint. However, this is not the issue before me. It is common ground that the plaintiff was off work as a result of this complaint at the time of the motor vehicle accident in 1992. Comcare continued to accept this injury as giving rise to compensation up to 21 January 1995. It is the plaintiff's case that from that date she has been prevented from returning to work due to her accident related injuries, although she acknowledges that she would in any event have taken some time away from the workforce at the time of the birth of her child, and that she would have remained away from the workforce for a time after that, returning to work on a part time basis only until her child reached school age. The defendant's case is that there is no evidence to support the view that the accident caused injuries would prevent the plaintiff from working, and that, on the plaintiff's own case, any barrier to her employment remains the work caused repetition injury.

The plaintiff describes being thrown forwards then back at the time of the accident. The car suffered some damage, but was drivable, and her partner drove her to the Accident and Emergency section of Calvary Hospital, where she was examined, x-rays were taken, and she was provided with a soft collar. She went home that evening, and the next morning attended her general practitioner. The Calvary Hospital notes record her complaint of painful neck. The x-ray report says

"Cervical spine: There is limitation of flexion consistent with muscular spasm, but no bone or joint injury."

Dr Lai's clinical notes show that he first made a note of a complaint of headaches in relation to the accident some years after the event, but Dr Andrews, consultant neurologist, saw the plaintiff in November 1992 in relation to this complaint, and recorded continuing pain in the base of the neck radiating to the right arm. He also said

"In addition, she has had an increase in the frequency of her intermittent bi temporal headaches."

I am satisfied that this complaint was made in these terms to Dr Andrews. I note however that it is recorded as an increase in intermittent bi temporal headaches. This is consistent with the report of Dr Danta, who examined the plaintiff at the request of her solicitors in October 1996, and recorded in relation to the plaintiff's past history of headaches

"She remembers being involved in a motor bike accident at the age of 16 and having had headaches for a few months thereafter. Otherwise she was relatively free from headaches until a few years before her recent accident, and describes a bifrontal headache recurring every month or so."

She told Dr Danta that she now gets

"...different types of headaches which have been episodic. They are generally behind one or other eye but also affect the other one and this is often accompanied by a blurring of vision and nausea. At first she had them weekly, but lately she has had them once every one to three weeks."

In re examination the plaintiff said that the headaches which she had before the accident were associated with her periods. I find it hard to accept that this vital piece of information was not proffered to either Dr Danta or Dr Andrews, both qualified neurologists who were examining the plaintiff in relation to her headaches, and who both took a history of ongoing headaches in the years prior to the accident, but rendered more frequent by the accident.

Dr Andrews has conducted many tests and examinations of the plaintiff, but has found no explanation for her ongoing complaints. His report of April 1995 to Dr Corry, a rehabilitation specialist, says

"This lady remains off work. She continues to have neck pain, headache and vague arm pain. I have not found too much in the way of abnormality with her. I think she has probably had some soft tissue strain, some facet joint strain but it hasn't responded to physiotherapy with Jac Cousins nor anti inflammatory agents and facet joint blocks. She has been fully investigated with MRI scanning of the cervical spine, full electrical studies including peripheral studies, dermatomal somato sensory evoked responses - all of which have been normal. "

The plaintiff attempted a return to work in June 1995, but was unsuccessful. It is her case that this was due to the accident related injury. This is not, in my opinion, supported by medical evidence. Dr Andrews' report cited above notes her ongoing complaint of pain, and the failure of tests to disclose abnormality. He notes that the plaintiff has had some soft tissue strain, but he does not express a view as to the effect this may have had on her fitness to work.

Dr Lai, in a report of May 1997, said:

"I consider that Ms Hart suffered a whiplash injury on 8 October 1992. As a result she continues to have neck pain and headaches. She has headaches about twice a week, lasting from a few hours to 1-2 days. The headaches have become more frequent since her confinement in February 1996, and she has developed low backache since this time. Her response to treatment has been slow but I feel that her condition can still be improved. She will continue to have medical treatment. She has not been working since February 1992 as she has been suffering from chronic regional pain since 1989. An attempt was made in June 1995 to return to work but this was unsuccessful. She is unlikely to return to her pre accident employment in the foreseeable future. However, I am unable to say exactly what proportion is caused by her pre existing chronic regional pain and her whiplash injury."

In a claim for damages for personal injuries it is for the plaintiff to establish, on the balance of probabilities, their case. This applies to facts relevant to the assessment of damages as much as to facts relevant to liability. In the present case the plaintiff claims that, as a result of her accident caused injuries, she has been unable to work since January 1995. I am unable to find this on the medical evidence before me. The evidence presented in the plaintiff's own case does not make this assertion. Dr Andrews notes the plaintiff's complaint, and ventures an opinion as to the presence of soft tissue strain, but he does not provide any opinion in relation to the impact of this on her ability to work. Dr Lai notes that the plaintiff has not worked since February 1992 as a result of chronic regional pain since 1989, and states that she is unlikely (in May 1997) to return to employment, but he states that he is unable to attribute this inability between her accident related injury and her chronic regional pain syndrome. He has been the plaintiff's treating general practitioner for both complaints.

The high water mark of the plaintiff's case may well be Dr Danta's report. It concludes that the accident aggravated pre existing headaches, and caused a soft tissue injury to the neck. He notes that the accident

"...also partly aggravated her right arm pain."

He forms the view that

"...she is disabled in the office and also at home by both the neck symptoms and the right arm pain, but more by the former. In view of this history I very much doubt if she will ever be able to return to the workforce."

To the extent that Dr Danta can be taken to be stating that the neck pain is itself sufficient to prevent the plaintiff from returning to the workforce, it is dependant on his finding that the plaintiff is more disabled by the neck pain that by the arm pain. This is not consistent with the evidence the plaintiff gave in chief and in cross examination. In particular, she was taken back to the return to work attempt in June 1995, and she acknowledged that, even if she had not suffered from neck pain and headaches, she would not have been able to work due to her arm pain, being her pre existing complaint.

Dr Danta noted that the plaintiff had suffered from right arm pain before the accident, and says that she

"...had to take time off work between September 1989 and the last time she worked in January 1995, but she does not recall how much time she lost off work."

This does seem to understate the impact of her work related condition on her employment prior to the accident. I also note that Dr Danta takes no history of previous neck pain. A report of Mrs Dent, physiotherapist, to the plaintiff's solicitors dated April 1992 was tendered by the defendant, which stated that she had been providing treatment for the plaintiff in relation to the repetition strain complaint, and that

"Area of pain includes Neck and both Arms to fingers, right being more severe than the left."

A report by Dr Hudspith, a Commonwealth Medical Officer relating to an examination in December 1991 was tendered by the defendant. In this report Dr Hudspith noted that the plaintiff had been involved in a motorcycle accident at the age of 16 as a pillion passenger, and he suggested that this may have resulted in soft tissue injuries to the neck which could be relevant to her then complaint. The plaintiff acknowledged in cross examination that in this incident she was thrown from a bike and struck her head on a car windscreen, and was admitted to hospital overnight.

Dr Hudspith's report records complaint of neck pain in 1991. Dr Lai's reports refer to pain in the shoulder region about this time. Dr Sangster, who examined the plaintiff for Comcare in March 1997, took a history of ongoing complaint of neck pain from 1989. To the extent that Dr Danta's report is silent as to previous neck pain, I have difficulty in accepting his conclusions that the plaintiff's major complaint is neck pain related to the motor vehicle accident.

Dr Danta notes in his report that he has not viewed any radiology. Dr Andrews' reports refer to extensive tests which failed to show any abnormality. Dr Cairns, an orthopaedic surgeon who examined the plaintiff for the defendant, formed the view that the plaintiff may have had some soft tissue injuries which would have resolved within 2-3 years of the accident. He expressed the firm view that the plaintiff's prior condition would not have been aggravated by the accident.

Dr Joubert, consultant neurologist, examined the plaintiff for Comcare in April 1995. He expressed the view that there was no sequelae resulting from the motor vehicle accident, and expressed the view that the plaintiff was fully fit for normal duties. The plaintiff tendered a report from Dr Lark, an occupational physician in the Government Health Service, who made some criticisms of Dr Joubert's report, and noted that the absence of neurological lesions or normal nerve conduction studies does not exclude the presence of the type of pain disorder which it is claimed was caused by the work incident, and which for the purposes of this hearing I am not required to examine.

I am not satisfied, on all of the evidence before me, that it is more likely than not that the plaintiff has been prevented from returning to her employment as a consequence of the motor vehicle accident on October 1992. I find that the plaintiff did suffer soft tissue injury to the neck in this accident. I note however that she has had prior complaint of neck pain deriving from her work injury, and that she has since 1989 had extensive time off work attributable to this complaint. I am not satisfied on the evidence before me that from January 1995 it was the accident related injury, which I find to be a soft tissue injury to the neck aggravating pre existing headaches, which has prevented her from working.

I am not satisfied that the accident has had any relationship to the plaintiff's complaint of low back pain, which emerged at the time she was pregnant with her child, and has continued as she now cares for her baby. There is no medical evidence to link this with the accident, or to suggest that it is other than a form of back pain commonly associated with childbirth.

It follows from these findings that I must reject the plaintiff's claim for damages based on an ongoing wage loss to date of trial and beyond. The defendant conceded at the hearing, correctly, that the plaintiff is however entitled to a buffer award, which the defendant says should be of a modest range, to reflect the fact that the accident related injuries, while they have not prevented the plaintiff from returning to the workforce, have had some impact, and will continue to have some impact, on her earning capacity.

I award the sum of $18,000 by way of a buffer in respect of both past and future income loss, inclusive of interest.

In relation to general damages, the plaintiff must be assessed on the basis of a claim for soft tissue injury, with no objective verification of injury, causing a degree of ongoing neck pain and an aggravation of headaches. I must also be mindful that in the circumstances of this case, the type of loss flowing from this type of injury was already present at the time of the accident. That is to say, the plaintiff at the time of the accident was off work as a result of her work related injury, and on her evidence many of the activities which she had previously enjoyed, such as sporting and recreational pursuits, were already denied to her. While submissions were made that the accident represented a blow to hopes of an earlier recovery, this was not supported by medical evidence. Counsel for the defendant acknowledged that some award was appropriate, but noted that the accident has not had a marked impact on the plaintiff's life as she was already restricted by her work condition, and that she has continued to be able to engage in a range of domestic activities. Counsel for the plaintiff urged me to take into consideration the fact that the plaintiff has recently become a mother, and that she said that her neck causes considerable difficulties in caring for her child, and that while she would like to have more children, these difficulties make her feel that this will not be possible. A figure of $15,000 for general damages would fall in the middle of the range for soft tissue type injuries. While the plaintiff's pre existing condition would indicate that this award ought be lower, I conclude that the impact that the plaintiff's accident related condition has had in relation to her child can offset this reduction, and I award the sum of $15,000 by way of general damages. Attributing $10,000 of this to past loss generates interest of $984, making a total general damages award of $15,984.

Out of pocket expenses were agreed in the sum of $4,826.00, which I award.

I am not satisfied that the evidence establishes a claim for anything other than a very modest sum for future out of pocket expenses, and I award the sum of $1,000.

This amounts to a total award of $39,810, which I award.