Sandra Di Sisto v Kylie Anne Mccormack [1997] ACTSC 8 (21 February 1997)

SUPREME COURT OF THE ACT

SANDRA DI SISTO v. KYLIE ANNE McCORMACK
No. SC55 of 1994
Number of pages - 10
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MASTER T CONNOLLY

CATCHWORDS

Negligence - Motor Vehicle Accident - Three car pile up - Plaintiff driving second car - Two impacts - Which impact occurred first - Failure to keep a proper look out.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Three car pile up - Two impacts occurring within seconds of each other - Attribution of damages - Whiplash - Injury to Lumbar Spine - Previous significant whiplash injuries requiring cervical fusion - Subsequent work related assault - Incapacity for work - Causation - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 136 ALR 1

HEARING

CANBERRA, 20-21 November 1996 21:2:1997

Counsel for the Plaintiff: Mr G Lunney Instructing Solicitors: Higgins Solicitors

Counsel for the Defendant: Mr G Stretton Instructing Solicitors: Phillips Fox

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $77,174.33. 2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY
1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the Tuggeranong Parkway in the Australian Capital Territory on 26 July 1991. There are two aspects to the plaintiff's claim which make the resolution of the claim more complex than most personal injuries claims. The accident in question occurred as part of a "three car pile up" in which the plaintiff was driving the second car. There were thus, on any view of the evidence, two impacts. The plaintiff's car struck the car in front of her. The plaintiff's car was also struck by the car behind, driven by the defendant. Thus, even upon the establishment of negligence on the part of the defendant, it will be necessary to sort out what aspect of the plaintiff's injuries from the incident of 26 July 1991 were caused by the negligence of the defendant, and what aspect occurred as a result of the plaintiff's collision with the first motor vehicle, for which the defendant is not responsible.

2. The claim is further complicated by the plaintiff's unfortunate history of other incidents, both before and after the motor vehicle accident the subject of these proceedings. The plaintiff was the victim of two motor vehicle accidents in 1983 which caused whiplash type injuries to the neck and shoulder. A cervical fusion procedure was performed in 1987 to attempt to resolve these problems. These accidents were the subject of separate litigation, which resulted, I was told, in a settlement in favour of the plaintiff. There was also evidence of a work fall in 1990 and a further minor motor vehicle accident in 1990 aggravating cervical pain. Since the motor vehicle accident the plaintiff has suffered a quite serious assault at work. Expert medical witnesses called by both plaintiff and defendant agree that, at present, she is quite incapacitated for work. In these proceedings it will be necessary to isolate the extent to which the 1991 motor vehicle accident has contributed to this incapacity.

3. The plaintiff was born in June 1942 and educated in Canberra. After leaving school she worked as a nurse at Kenmore. She married some 40 years ago, and she and her husband have four adult children. For some 25 years the plaintiff has worked in the hospitality industry, starting as an assistant in the kitchens and working her way up, without holding any formal qualifications. She has worked in and managed the kitchens in a number of well known Canberra clubs over the years. At the time of the 1991 motor vehicle accident she was working at the Zambian High Commission, cooking and looking after catering and hospitality for diplomatic functions and the like. At the time of the accident she was working for 8 hours a day 5 days a week, but in split shifts. The plaintiff returned to her duties after about 5 weeks, but she gave evidence that at this point she was only doing very light duties because the High Commission was due to close down, and at this point the High Commissioner's family had returned home. She continued in this light work until the end of September 1991, when the High Commission closed.

4. The plaintiff did not work again until March 1992 when she commenced duties as a cook and house mother at a woman's refuge run by the Society of St Vincent De Paul. This was originally on the basis of 20 hours a week, but she later took up some weekend overtime duties. It is the plaintiff's case that the motor vehicle accident the subject of this claim has reduced the plaintiff from a full capacity to work, evidenced by her full time employment at the High Commission, to the part time duties she was undertaking at the refuge. It is common ground that the assault at the refuge in August 1993 was responsible for reducing whatever her residual earning capacity was to zero.

5. Before attempting to assess her medical condition and attribute responsibility for this to the various contributing factors as a prelude to assessing damages, it is of course necessary to establish liability for the accident. The circumstances of the accident appear to be that an unidentified vehicle struck a kangaroo on the Tuggeranong Parkway. In Canberra the city's "bush capital" planning does mean that kangaroo strikes on even major highways are not uncommon. This vehicle stopped, and then drove away. A vehicle driven by Ms Taylor was travelling behind that vehicle, and Ms Taylor brought her vehicle to a stop. The red car then took off, but before Ms Taylor could proceed she said that she was hit from behind. The vehicle that hit her was the plaintiff's vehicle, and no claim for liability is made by the plaintiff in these proceedings against Ms Taylor. The plaintiff was also hit from behind by the defendant. It was the plaintiff's evidence at the hearing of this matter that this impact in fact occurred first, but this seems inconsistent with all the other evidence. While I am sure, as counsel for the defendant conceded, that the plaintiff is trying to be truthful in this respect, I must conclude that the course of events was that the plaintiff's vehicle collided with Ms Taylor, and that the plaintiff was then struck by the vehicle driven by the defendant. All of this occurred within a very short space of time, a matter of seconds on the evidence of Ms Taylor.

6. It is the defendant's primary case that, if I find as I do that the impacts occurred in this sequence, I should find no liability, as the defendant had no opportunity to avoid the collision, which was in effect the fault of the driver of the unidentified red vehicle which stopped suddenly after striking the kangaroo. While this submission has prima facie merit, the evidence of the defendant herself, who was patently honest and helpful, does establish a requisite degree of negligence to establish liability for the purposes of these proceedings. The evidence of all the drivers establishes that the impacts occurred in the right hand lane of the parkway. The defendant gave evidence that she had changed lanes just prior to the accident, and although she saw the yellow car driven by Ms Taylor, she said that she did not see the car driven by the plaintiff, which I must find from all of the evidence was at that time travelling behind the yellow car driven by Ms Taylor and in front of the defendant as the defendant moved to the right hand lane. The failure to observe the plaintiff's vehicle until the impact establishes failure to keep a proper lookout and is, in my view, sufficient to establish liability.

7. Having found liability, it is necessary to establish the extent of the plaintiff's injuries which are attributable to the negligent conduct of the defendant in order to properly assess damages.

8. 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) 136 ALR 1 where his Honour said (at 4): "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'."

9. The plaintiff's case assumes a full capacity for work at the time of the subject accident which has subsequently been reduced. Counsel for the defendant tendered medical reports and statements of claim generated in relation to litigation surrounding the 1983 motor vehicle accidents, in which a global claim was made for future economic loss on the basis that the plaintiff's duties at the High Commission were essentially light duties. The Statement of Claim in matter SC 1953 of 1986 states "It will be alleged that if she was terminated from this position, she would have great difficulty in obtaining work as a chef or cook or waitress which involved anything other than the lightest of duties. Her incapacities mean that a job involving any lifting cannot be available to her. Accordingly a global claim for future economic loss is made."

10. In a report relevant to those proceedings Dr Andrea said in March 1990 "She appears to be able to cope with the cooking for the High Commissioner and his wife and seems to obtain some relief from physiotherapy. She could probably continue on as she is, more or less indefinitely, but she is a little worried that she may lose the job she has when the High Commissioner leaves."

11. The plaintiff clearly emerges from the evidence in these proceedings as a person with significant medical difficulties before the subject motor vehicle accident. These included significant damage to the cervical spine necessitating cervical fusion at C5 and depression arising from the 1983 motor vehicle accidents. In medical reports generated in relation to that litigation her prognosis is described as poor by physiotherapist Mr Maher in his report of April 1990. Her treating general practitioner, Dr Voon, has prescribed anti depressant medications on a number of occasions before the present motor vehicle accident, and in a report of March 1990 said "Mrs Disisto has residual problem with her post traumatic cervical disc lesion. Her pain is chronic with intermittent exacerbation. She required daily analgesic and anti-depressant and physiotherapy with the exacerbation." Dr Voon had previously observed in that report that on examination on 7 March 1990 "She was rather depressed because of the state that she is in following the accident. Her reduction in domestic and family life with constant complaints of pain are wearing her family members down."

12. This history was not before Dr White, a consultant psychiatrist who in a report of October 1994 attributes the "major probable cause" of the plaintiff's depression to the motor vehicle accident the subject of these proceedings, although he says that the assault at work in 1993 worsened the depression, and caused her present panic disorder and post traumatic stress disorder. In cross examination Dr White said that a condition such as depression is caused by a variety of factors, and that all stresses are significant.

13. Given the history of depression prior to the accident, which was not fully communicated to Dr White at the time of his medico legal assessment, I am unable to ascribe fully her present depression to the accident. Dr Duke, a consultant psychiatrist who examined the plaintiff for the defendant in July 1996 found that she suffered from anxiety and agoraphobia, which he associated with the assault at work. He found that she also had a pre existing condition, which he described as "anxiety, not amounting to post traumatic stress disorder". He said that this was more difficult to attribute, but noted a report from Dr Andrea prepared in relation to the claim following the 1983 accidents, which reported "On 26 May 1988 she was crying all the time and could not sleep in July 1984". He noted, however, that she did respond to her general practitioner's suggestion of a less demanding job. He also took account of Dr Voon's report of March 1990 which referred to prescription of Tryptanol, although he noted that "It is not clear that this was for anxiety or depression or some other indication." Dr Voon said in his evidence that this was in fact primarily for headaches, although he conceded that she had been treated for depression. Dr Duke would attribute psychiatric condition at approximately 10% for each of the motor vehicle accidents (which I take to mean the two 1983 incidents as one and the 1991 accident the subject of this claim) and 80% to the more recent work assault.

14. The plaintiff has also made a claim in respect of disability to her knees and a condition of her right wrist of carpal tunnel syndrome. A report was tendered by the plaintiff from Dr Coyle which made some connection between the motor vehicle accident and her knee complaint, although this was qualified and states "I also informed her that I did not believe that the direct impact injury she claimed she had sustained in the motor vehicle accident of 1991 could have been the primary cause of her knee condition although it may have aggravated it and rendered it symptomatic." In cross examination Dr Coyle agreed that this history was based on the plaintiff's statements of swelling and bruising at the time of the accident. When it was put to him that there was no history in the hospital notes or in Dr Voon's notes of knee problems until the 1993 work incident he agreed with the proposition that the 1991 accident had no part to play in her present knee problems. I so find.

15. In relation to the claim for carpal tunnel syndrome, there is not sufficient evidence to connect this to the 1991 accident. The high water mark of this claim is a report from Dr Tuck who examined the plaintiff in 1992 and said that "The carpal tunnel syndrome may have been caused by weight gain. The stress associated with the accident and subsequent pain will have contributed to the weight gain and therefore indirectly to the development of carpal tunnel syndrome."

16. In cross examination Dr Tuck acknowledged that he had assumed that the plaintiff's problem of weight gain was associated with the accident. When he was advised of Dr Voon's evidence that the plaintiff had been treating the plaintiff for weight gain prior to the accident, including prescribing medication for that problem he agreed that any connection between the carpal tunnel syndrome and the accident was "quite remote." The evidence does not establish a sufficient connection between this condition and the accident, and I so find.

17. Mrs DiSisto's principle present difficulty arises from her back and neck. There is no question that she suffered a considerable degree of difficulty in relation to her neck prior to this motor vehicle accident, but her claim is that her present lumbar spine complaints are related to this accident. Moreover, it is the plaintiff's case that, when it becomes necessary to seek to divide those symptoms attributable to this accident between the first impact (that is, the collision where the front of the plaintiff's car struck the back of Ms Taylor's car and the plaintiff was thrown forward) and the second collision (where the rear of the plaintiff's car was struck by the front of the defendant's car and the plaintiff was thrown back), I should find that the first impact probably aggravated the neck by the familiar whiplash mechanism, whereas the second impact, which the plaintiff says caused her to be forced back in her seat to the point where her seat back snapped at her lumbar region, caused the damage to the lumbar spine. There was however insufficient expert material to support this proposition. On the contrary, in a report to the defendants which was tendered as part of the plaintiff's case Dr Corry, a specialist in rehabilitation medicine, stated "There was nothing about the nature of her injuries which allows discrimination between an initial rear end or front end impact. In general terms sudden acceleration injuries such as found in rear end impacts are more likely to cause neck hyper extension injuries, whereas sudden deceleration injuries, such as seen in front end impact are more likely to cause low back injury."

18. On this view the plaintiff's neck difficulties are more likely to have been raised by the conduct of the defendant, while her low back injuries were more likely to have been caused by her collision with Ms Taylor.

19. In Dr Voon's report of April 1993 he records that on the day of the accident "The whole of her neck was painful with radiation to her left ear, the mastoid region and the left shoulder. She could not move her jaw and has lower back pain radiating to her right hip." He records that x-rays taken on the day of the accident recorded "Lumbar spine: No fracture shown. There is early degenerative change at L2/3 and L3/4 levels. Thoracic spine: There is a scolliosis concave to the left. There is degenerative change throughout the thoracic spine. No fracture shown. Cervical spine: There is bone fusion of C4,5 and 6. There is early cervical spondylosis at C6/7. No fracture shown."

20. Dr Voon records: "She was treated with a neck collar and analgesic. She consulted me on the same day. On examination she was extremely tender over the mid cervical, upper third thoracic, lumbo-sacral joints, the right hip, left more than the right para cervical, mid trapezius, left anterior shoulder joint and right upper anterior chest wall." Dr Voon records a pattern of headaches and neck pains leading up to her return to work in August 1991. He records on 28 August 1991 headaches and neck pain, as well as painful right hip and lower back pain. He records that on 31 August 1991 she was reviewed and was diagnosed to have post traumatic aggravation of the cervical and lumbar spondylosis and was treated with Feldene as anti inflammatory." He continues to record complaints of neck and low back pain, with the note for 1 November 1991 recording "Her neck pain is worse than her back pain."

21. Following complaints of neck and lower back pain she was referred for a CT Scan with a report of 16 February 1992 recording marked hypertrophic degenerative changes in the right L3/4 with associated calcification and encroachment on the spinal canal. This scan also observed mild degenerative facet joint changes at L4/5 and a mild wide based posterior disc bulge at L5/S1 with mild degenerative changes in the facet joint.

22. The only specialist orthopaedic opinion tendered as part of the plaintiff's case is that of Dr Coyle. His report of August 1996 records that he saw the plaintiff in November 1993, and that he observed "Her lumbar spinal movements were grossly restricted and her reaction to percussion over the spinous processes was extreme and inappropriate for purely organic pathology in my opinion."

23. Dr Coyle ordered an MRI scan of her lumbosacral spine which is attached to his report, and is consistent with the findings of some degenerative change in Dr Voon's report. The bulk of Dr Coyle's report then deals with the claimed connection between the 1991 accident and the plaintiff's knee condition. He notes that when he saw her in relation to her knees in 1994 "She had seen Dr K Nadana Chandran in the meantime for advice about her low back problem which I therefore did not go into again at that time; I would refer you to Dr Chandran for further advice about this but I understand that he also did not feel that she had a surgically treatable back condition."

24. No report was produced from Dr Chandran.

25. Dr J Hopkins, an orthopaedic surgeon who examined the plaintiff for the defendant, concluded on the basis of examination of the plaintiff and previous investigation reports that "I believe that the motor vehicle accident of July 1991 has produced an aggravation of pre existing degenerative changes in the cervical and lumbar spines. I believe that aggravation was significantly improving until she severely injured her back again on the stairs and in the assault. I believe it is the latter two episodes which are the major cause of her present apparently severe symptoms and are almost certainly compounding her significant depression. I would at a reasonable guess on probabilities and possibilities suggest that approximately one third of her present syptomatology is related to the motor vehicle accident of July 1991."

26. Counsel for the defendant urged that, if I find liability, the safest course, rather than attempting to attribute individual symptoms to the two impacts, which clearly occurred within seconds of each other and which, on all of the evidence I should find were of about equal severity, would be to take the plaintiff's problems arising from the accidents as a whole, and then discount by 50%, in effect finding that the global consequences of the two impacts were equivalent. I find that in the circumstances of this case that is an appropriate course to adopt.

27. In assessing the general damages I must take into account the plaintiff's pre existing condition, which was clearly of some significance, as well as the fact that, on all of the evidence, her condition has deteriorated significantly as a result of the assault at work. Moreover, any general damages award must reflect the fact that, whatever her loss consequent to the accident was, only one half of this loss is attributable to the conduct of the defendant to these proceedings. I award, in all of these circumstances, $30,000 by way of general damages, with $20,000 being for past loss resulting in interest of $2,232.33, a total general damages award of $32,232.33.

28. The plaintiff's past economic loss is claimed at $18,750, made up of $2,220 for the period of about six weeks she was absent from her work at the Zambian High Commission. She lost this job on 26 September 1991 when the High Commission closed, and she claims full wage loss until she recommenced employment with the St Vincent de Paul Society on 4 March 1992. This is a claim for $7,770. Up until the time of her assault at work the plaintiff claims that her net weekly income was about $120 per week less than her former employment and so a claim is made for $8,760. This amounts to a total claim for past loss to date of $18,750.

29. This claim for $18,750 assumes, however, that this total loss, if established, was the responsibility of the tortfeasor, whereas I must find that the loss was in fact jointly caused by both accidents. This would mean an award for past loss of $9,375, which I find to be appropriate, which, with interest of $3,067, amounts to $12,442.

30. The plaintiff seeks to establish an ongoing loss of $120 per week to normal retirement age, which would generate a loss to age 65 of $112,000, which would of course be reduced to $56,000. I am not satisfied that an ongoing arithmetical loss of $120 is justified. The evidence of the manager of the refuge, and a co-worker, indicated that the plaintiff was working a full job, and indeed had been increasing her hours by way of additional shifts. While a co-worker said that the plaintiff had some restrictions, the centre manager was unaware that the plaintiff had any restrictions at all on her work capacity.

31. While looking at the actual reduction in earnings has been appropriate for calculating past loss, I am not satisfied on all of the evidence that it is appropriate to extrapolate this to the future and that I must find that her working capacity was fully extended at the refuge before the assault. Indeed, she had been increasing her hours. Nevertheless, the plaintiff clearly suffered a loss to her ongoing earning capacity. This is an appropriate case for a buffer, taking into account the impact of her injuries and the attribution between the two impacts. I award $25,000 by way of a buffer.

32. Out of pocket expenses in this matter are not capable of precise quantification. The plaintiff was in need of treatment at the time of the accident for her earlier accident caused disabilities. The treatment following the subject motor vehicle accident was of course in relation to two impacts. And as a result of the work related assault of August 1993 the plaintiff has, regrettably, become significantly disabled and incurred substantial treatment costs which have been covered both by the insurer of her employer and the insurer of the defendant. By agreement, solicitors for the parties inspected the medical accounts, and agree that $10,552.05 was paid between the accident and the work assault, and $17,811 has been paid since that assault. I award the sum of $7,500 by way of out of pocket expenses, reflecting half of those expenses incurred up to the work assault, and a discretionary sum to reflect the ongoing effect of the subject accident, recognising that its effect was substantially overshadowed by the 1993 assault.

33. This amounts to a total award of $77,174.33, which I consider appropriate in all of the circumstances.