Van Den Bergh v Lovett [1998] ACTSC 111 (16 October 1998)

Last Updated: 13 October 1999

Van Den Bergh v Lovett [1998] SCACT 111 (16 October 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Plaintiff struck by defendant's vehicle whilst a pedestrian immediately after the plaintiff's vehicle hit a tree - Plaintiff knocked unconscious - Post traumatic amnesia with ongoing occasional giddiness and mild cognitive dysfunction - extensive cuts and abrasions with mild residual scarring - Temporary aggravation of previously symptomatic degenerative back condition - No issue of principle.

No. SC 540 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 16 October 1998

IN THE SUPREME COURT OF THE )

) No. SC 540 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARIA VAN DEN BERGH

Plaintiff

AND: CARL BARRY LOVETT

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 16 October 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $97,880.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 6 July 1990. The plaintiff was at the time walking in a generally southerly direction on the edge of Hindmarsh Drive at Phillip in the Australian Capital Territory when she was struck by the defendant's vehicle which had left the road. Liability was admitted, and the matter proceeded by way of an assessment of damages.

2. There were in fact two accidents on that morning. The plaintiff, who was an enrolled nurse at what was then known as Woden Valley Hospital, had been driving to work. Her car hit a patch of ice on Hindmarsh Drive and she lost control, leaving the roadway and coming into collision with a tree. This was an impact of some force, with the plaintiff saying that she was travelling at between 60 and 80 kilometres per hour at the time, but probably more towards 60 kilometres an hour. There was extensive damage to her car, but she was able to get out of the vehicle. As she had left her vehicle from this accident the defendant lost control on the same patch of ice, and left the roadway, and hit the plaintiff. The plaintiff says that her last memory is of seeing the defendant leave the roadway and veer towards her. She says that she next recalls being in a ward at the hospital. It will be convenient for the purposes of this decision to refer to the incident in which the plaintiff hit the tree as the first accident and the incident in which the plaintiff was struck by the defendant's vehicle, and which is the subject of these proceedings, as the second accident.

3. The plaintiff suffered loss of consciousness and lacerations to the forehead, and abrasions in the second accident which are not disputed by the defendant. She also claims that the second accident aggravated a pre existing degenerative back condition, which she says has been the source of most of her troubles since. The defendant denies that this is solely arising from the second accident, arguing that to the extent that the plaintiff aggravated what the defendant argues was a previously grossly symptomatic degenerative back condition, this would have occurred as a result of the two accidents, and that the period of aggravation would have long since passed. The plaintiff also claims that she has suffered a loss of cognitive function as a result of the loss of consciousness caused by the second accident, as well as some scarring from the abrasions.

4. The plaintiff was born in Holland in August 1946 and was 43 at the time of the accident. She completed her education to secondary level in Holland and then studied nursing, qualifying in 1971 as an enrolled nurse. She came to Australia in 1972, and immediately found work as a nurse in Melbourne. At some time during this employment she had three weeks off work for a torn back muscle. In 1974 she found employment as a nurse in Canberra, and had worked as a nurse up to the time of the accident, with some periods working in other parts of Australia or travelling abroad, but with Canberra as her home base. She has lived with her present partner for many years, having first met him when he too was migrating to Australia from Europe in 1972.

5. A report of 11 January 1991 from Dr Crotty of medical administration at the hospital records that

"This woman attended the Accident and Emergency Department of Royal Canberra Hospital South at 07.31 hours on 6 July 1990. She was stated to have been involved in a motor vehicle accident. Her injuries included a puncture wound with skin loss on the right side of the head above the eyebrow, a laceration of the right hip that required suturing and a bruised right ankle. She was admitted to hospital and given antibiotics and tetanus prophalaxis. X ray of her skull, right foot and ankle, cervical spine and pelvis showed no fractures. A subsequent CT scan of her head was reported as normal. In hospital she complained of headache and dizziness on sitting up. These symptoms subsided in hospital and she was discharged on 13 July. After discharge she complained of nausea and giddiness and pain on backward rotation of her shoulder when seen on 27 July, and of the same shoulder pain when seen on 14 August. In September she complained of backache which was apparently a recurrence of a long standing condition."

6. The plaintiff has a long history of complaints of back pain. In May she was cycling to work when she experienced sharp pain in the back, and this resulted in her taking two months off work. She was in fact returning to her normal duties when the present accidents occurred, and she was driving her car, rather than riding her bike, in order to avoid further stain to her back. The extent of her previous back pain became an issue in these proceedings, and it is apparent that the full details of this history was not available to some doctors who have provided opinions to the plaintiff. The plaintiff's case is that the second accident aggravated an underlying degenerative condition. Her consultant orthopaedic surgeon, Dr Hopkins, stated in his report of March 1995 that

"As far as her lumbar spine is concerned she has ongoing intermittent discomfort which is probably on the basis of the degenerative changes which were almost certainly present at the time of the injury but have doubtless been aggravated significantly by it. The present findings on MRI suggest that she has some mild degenerative changes consistent with her age group."

7. Dr Hopkins acknowledged in his evidence in chief that he was not fully aware of the extent of the plaintiff's history of complaints of back pain, but he nevertheless expressed the view that the second accident was

"...a very significant traumatic episode which would have bumped up the level of problems she was having to the point where continuing on as an enrolled nurse became not a practical exercise."

8. In cross examination it was put to him that the plaintiff had a medical history showing complaints of back pain back to the 1970's, and that between January 1985 and the accident in July 1990 she had been having regular attendances at a chiropractor, with some 53 attendances during that period. It was put to him that

"...all of those 53 or 54 attendances endorse the proposition that the plaintiff, even in the absence of a motor vehicle accident, would have been very much at risk of suffering symptoms in her spine by exposure to other trauma such as lifting a patient or riding a bicycle?"

He replied

"Yes, on the basis of that history one would have to say that, yes."

9. Dr Hopkins was of the view that the second accident involved a greater degree of trauma than the first accident, but he said that it would be impossible to

"...say this or that one produced X per cent of the problem and the other one produced Y per cent of the problem."

10. Dr Keiller, who examined the plaintiff for the purposes of reports to the defendant, said in his report, and in his evidence in chief, that

"It is impossible to say what component of her residual complaints are due to the first incident in which she hit a tree, as opposed to the second when she was knocked down by the second vehicle as the interval was too short and the whole history is complicated by her loss of consciousness."

11. This was also the view of Dr Andrea, who examined her for the defendant.

12. A chiropractor, Ms Williams, reported for the plaintiff on 14 April 1993 that the second accident

"...has caused considerable damage to Ms Vandenberg's spine and has increased the rate of spondylosis."

13. This opinion was put in cross examination to Dr Andrews, a consultant neurologist, who reported for the defendant. Dr Andrews said that this was more of a hypothesis, which

"...seems improbable to me".

14. I prefer the evidence of Dr Andrews, which is consistent with Dr Hopkins, that trauma can result in some flare up of a degenerative spine, but that here there were widespread symptoms which were manifested well before the two traumas. Dr Andrews expressed the view in his reports, and in cross examination, that the effects of both the motor vehicle accidents has long since passed. Dr Keiller agreed that the second accident would have produced some aggravation to her degenerative condition, but that the effects had passed by June 1992 when he first examined her. This was also broadly the view of Dr Andrea.

15. Ms Williams' report, which was tendered in the plaintiff's case, stated that the plaintiff first complained of back pain from the accident at a consultation on 6 August. The hospital records contain no record of complaints of back pain during the week the plaintiff was hospitalised following her admission after being knocked unconscious by the defendant. Much time was spent in cross examination of doctors on the assumption that the first record of complaint of back pain was the 6 August. In fact, there was a report to the Claims Department of the NRMA of January 1993 from another chiropractor, Ms Bond, which recorded that the plaintiff attended on 17 July 1990 with complaints which included pain in the cervical and lumbar spine. This consultation was 11 days after the accident, but only 4 days after her discharge from hospital on 13 July 1990. This report, although contained in material that was apparently in the possession of both sides in the matter, was sought to be tendered after the close of the defendant's case. After hearing argument from counsel, I allowed the tender of the report. Counsel for the plaintiff acknowledged that he had been remiss in not tendering the material in his own case, and it was clearly of significance as it brought forward significantly the first complaint of back pain. In such a case I formed the view that the plaintiff ought not be disadvantaged by such an error. I also allowed the plaintiff to be recalled and to give evidence that she had attended Ms Bond after the accidents for treatment which included treatment for her lower back.

16. I am satisfied that the plaintiff had a degenerative condition of her back at the time of the accident, and that this condition had been significantly symptomatic for many years, to the point where the plaintiff had just returned to work from a two month absence caused by back pain brought on by bicycling to work. I am satisfied that the plaintiff was involved in two accidents in quick succession, involving hitting a tree while driving her car with a seat belt on at a speed of at least 60 kilometres an hour, and then being struck while a pedestrian and knocked unconscious. I am satisfied that these incidents together did aggravate her degenerative symptomatic back condition, but that the effects of this aggravation would have now passed. Although I am not able on the evidence before me to say with confidence the degree to which each of the two impacts caused this aggravation, I am satisfied that the second accident was of greater effect, and I am satisfied on the balance of probabilities that the aggravation of the plaintiff's back can be largely attributed to this accident.

17. The plaintiff was knocked unconscious in the second accident, and has described a period of amnesia, in that she can now only recall the defendant's car coming towards her, and then waking in the ward at the hospital. She also complained immediately of a sensation of giddiness, and indeed this was the main reason for her continued stay in the hospital. The plaintiff continues to complain of occasional giddiness, and also problems with attention and concentration, which she attributes to the second accident. There is also some mild residual scarring around the head, which the defendant concedes was caused by the second accident.

18. Dr Chandran, a neurosurgeon, examined her during her inpatient stay and performed examinations following the complaint of dizziness. He found no evidence of significant injury to the brain, and concluded that

"She suffered a minor head injury, a few lacerations and disturbance of balance."

19. Dr Dhall, who was the surgeon who was responsible for the plaintiff's care while in hospital, reported in January 1993 that Dr Chandran examined the plaintiff and

"...concluded that her dizziness was probably of labyrinthine origin."

20. Dr Andrews, in his report to the defendant in June 1992 referred to her ongoing complaints of mild giddiness, and concluded that this

"...is presumably related to the labyrinthine injury that occurred at the time of the accident when she had a mild head injury. These symptoms, after this period of time would be expected to persist."

21. Dr Keiller, while noting that this was outside his area of expertise, also stated that the giddiness probably denotes some mild labyrinthine disorder. I am satisfied on all of the evidence that the head injury did cause some scarring which is still residually present, although concealed by the hair line, and that ongoing giddiness from time to time can be attributed to the accident.

22. Dr Glasser, a psychiatrist, has reported that the plaintiff has, as a consequence of the head injury, some mild cognitive problems involving concentration and memory difficulties. He also felt that the plaintiff's ongoing pain was contributing to her anxiety. In cross examination he conceded that he was unaware of her past history of back pain, and agreed that the history of problems up to the date of the accident would themselves produce a level of anxiety. As I have found that the plaintiff's complaints of neck and back pain are only partly attributable to the accident the subject of these proceedings, I am not satisfied on the balance of probabilities that the plaintiff can attribute any anxiety state to the accident on the basis of ongoing complaints of pain.

23. In relation to the cognitive difficulties, Dr Glasser in his report of June 1996 suggested that a formal neuropsychological assessment be undertaken to quantify her cognitive deficits. In fact a neuropsychology assessment had been undertaken in August 1995 by Ms Scarrabelotti, a senior clinical neuropsychologist at Woden Valley Hospital. This report concluded

"At current testing there was no evidence of consistent significant focal or diffuse neurological impairment. There was evidence of a mild reduction in attention in one particular test and also performance was significantly impaired in one test requiring the visual memory of a complex path. It is possible that Ms Van Den Bergh becomes particularly anxious when confronted with new and complex tasks especially if they are visual."

24. The complaints of cognitive difficulties became more pronounced when the plaintiff had been reassigned within the hospital away from nursing duties to clerical work in the pay office. When these operations were computerised the plaintiff says she had difficulties in learning the new systems. She has subsequently been assisted to find another job where she has successfully trained in the use of computer operations.

25. The defendant did not produce any medical evidence to challenge Dr Glasser's findings of mild cognitive difficulties, and I am satisfied that these can be attributed to the accident.

26. It follows that I find that the accident the subject of these proceedings caused the plaintiff to be knocked unconscious, and suffer post traumatic amnesia, cuts and lacerations which have left mild residual scarring to her head, ankle and hip, and ongoing occasional dizziness. I accept the plaintiff's evidence and that of Dr Glasser that there has been a mild level of cognitive dysfunction, but this is, as set out in Ms Scarrabelotti's report, mild and that generally she performs well with scores in the high average range for intellectual functioning, and memory functioning. I find that the plaintiff's longstanding history of symptomatic back problems was aggravated for a time by the accident, although the first accident where she struck a tree would also have had some effect on aggravating this condition. I find that there were some problems with her shoulder which were of a soft tissue nature and which had resolved by at least the time of Dr Chase's report of July 1991.

27. 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'."

28. In relation to general damages, the plaintiff is to be assessed on the basis of being struck by a vehicle, knocked unconscious, and hospitalised for a week, with a degree of ongoing tendency to dizziness, and some very mild cognitive difficulties. She also suffered extensive cuts and abrasions, which have left some very mild residual scarring, which is not readily visible, but nevertheless is still present. Her major complaint, her back and neck pain, cannot on all of the evidence before me be attributed solely to the second accident, and in any event amounted to a temporary aggravation of a previously symptomatic condition. I find that the effects of this aggravation would not have lasted beyond 1994, to the extent that the aggravation can be attributed in any event to the second accident as opposed to the first.

29. The plaintiff remains active despite her ongoing symptoms from her degenerative condition. She was before the accident a keen traveller, and she has remained so, with regular long overseas journeys with her partner as an independent traveller. While she is adamant that she can no longer carry a back pack over any distance, she does travel with a back pack, and carries a day pack on day walks. While she says that she is now more limited in her capacity to walk distances or over irregular ground, I find that her degenerative condition was in any event bringing her to this state.

30. Taking all of these factors into account, I assess general damages in the sum of $45,000, with $30,000 attributable to past loss, being principally the closed period for aggravation of her back condition, which generates interest of $3,200, resulting in a total award of $48,200.

31. The plaintiff's claim for past economic loss is particularised as a claim for $52,284.02. The plaintiff says that she was off work from the date of the accident until her return to work on light duties as a nurse commencing on 12 November 1990 working 4 hours 4 days a week, and rising from 19 August 1991 to 1 September 1991 to 5 hours 4 days a week. This rose to 30 hours a week to 27 October 1991. The plaintiff was then transferred to clerical work, due both to her back pain and, she says, her forgetfulness, which I have attributed to the mild cognitive defect. She was transferred to the payroll section at the hospital from 28 October 1991 and paid as an administrative officer for a full work week. The plaintiff experienced difficulties in adjusting to the new computer system at the hospital, and she was eventually placed in a position in the administrative unit to the Essential Services Review Committee, an agency of the Government of the ACT. This is a position on a permanent basis for three days a week, although the plaintiff is medically certified on her own case as capable of working for 4 days a week.

32. I am not satisfied that from the time the plaintiff commenced her present work she has suffered any real ongoing loss. I am satisfied that by the time at least that she commenced with the Essential Services Review Committee in November 1995 she was capable of full time clerical work at the level which she is presently performing. I note that on the plaintiff's own case such work would mean the plaintiff would earn $460.06 a week net, as opposed to $450.32 as an enrolled nurse. I note that on the basis of the claim as particularised, the amount of income claimed to be lost during the period since she commenced work with the Essential Services Review Committee is some $27,318.95. This should not all be deducted, however, because the plaintiff did take some time off by way of leave without pay for travel purposes, which she says she would have taken in any event, and 9 weeks and 4 days of this fell within the period since she has commenced this job.

33. I assess the plaintiff's past economic loss attributable to this accident at $25,000. I should observe that this is a finding only in relation to the second accident, and that to the extent that her ongoing back problem relates to the first accident or to the effect of her long term employment as a nurse on her back condition, it is not the responsibility of this defendant, although it does not follow from this that payments made by Comcare have been in error.

34. Interest on the past economic loss is complicated by the fact that the plaintiff had been in receipt of ongoing compensation payments up to hearing date, and so her actual loss for interest purposes was the economic loss claim less her actual workers compensation payments. This was a claim for interest of $5,794.44. As I have found that not all of the past loss claimed is established, I cannot award this amount. Doing the best I can, it would seem that as the discretionary amount for past loss amounted to about one half of the amount claimed, an award of $2,900 would be appropriate.

35. The Fox v Wood component attributable to the defendant raises a similar complication, as I find that not all of the payments which have been made by the compensation insurer are in effect to be replaced by an award of damages. The loss claimed was $11,622.39 to 6 August 1998, and applying the same approach as to the claim for interest on past loss, I award damages for the Fox v Wood component of $5,800.

36. I am not satisfied that there is an ongoing future economic loss. The plaintiff claims that she is only fit to work for 4 days as a clerical worker, and claims that she has a net loss of $90,592.10 based on a claimed fitness for only four days work, and her employer's present ability to only offer her 3 days work. I am not satisfied that the plaintiff is capable of only 4 days work due to her accident related incapacity, which is now limited to a mild cognitive difficulty and occasional dizziness. I accept that the plaintiff is truthful when she says that she can be tired and sore after work, but I have found that her neck and back condition is now solely attributable to her degenerative condition, and not to the impact of the second accident. I accordingly make no award for future economic loss.

37. The plaintiff makes a claim for loss of future superannuation benefits. As I am not satisfied that there is any ongoing loss of earning capacity, no award is appropriate under this head.

38. There is a modest claim for assistance with personal care provided by her partner during the closed period from her release from hospital to the end of the first week of September 1990. This was particularised as $980, being 2 hours per day for 6 weeks and 1 hour per day for 2 weeks, and based on 75% of the present quoted rate for domestic assistance from Home Help ACT. I am satisfied that the nature of the plaintiff's injuries justify such an award inclusive of interest, on the basis of the evidence of the plaintiff and her partner.

39. Out of pocket expenses were claimed in the sum of $23,345.73. This includes ongoing chiropractic and some osteopathic services running through to 1998. As I have found that the impact of the second accident ended by 1995 at the latest, I must discount this amount. I award out of pocket expenses in the sum of $15,000. It does not, I should add, follow that the payments beyond this were made in error by Comcare, but this is, on my judgment, the outer limit of the defendant's responsibility taking the view most favourable to the plaintiff.

40. Future out of pocket expenses relate to ongoing osteopathic attendances, and four visits a year to her general practitioner. To the extent that this relates to her ongoing problems with her back and neck, the tortfeaser cannot be held responsible for these ongoing expenses. There is no evidence to satisfy me that the ongoing mild dizziness and impairment in cognitive function is likely to be productive of future medical expenses, and I decline to make any award under this head.

41. This amounts to a total award of $97,880 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 16 October 1998

Counsel for the Plaintiff: Mr B Salmon QC

Instructing Solicitors: Clayton Utz

Counsel for the Defendant: Mr M McDonogh

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 15 and 16 September 1998

Date of judgment: 16 October 1998