Kimberley Foster v Caroline Karam [1998] ACTSC 168 (13 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident - Soft
tissue injury to lower back - Ongoing symptoms and diability.

  

  

   CANBERRA, 23 February 1998 (hearing), 13 March 1998 (decision)

   #DATE 13:3:1998

  

   Counsel for the Plaintiff: Mr
F G Parker

   Instructing Solicitors: Barker Gosling

   Counsel for the Defendant: Mr C Leahy

   Instructing Solicitors: Deacons
Graham & James

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $146,731.20.

   2. The defendant pay the plaintiff's costs.

  

  

   MASTER T. CONNOLLY

  

   This is a claim for damages for personal injuries
arising from a motor
vehicle accident which occurred on 19 January 1995 at North Ryde in New South
Wales. The plaintiff, who was
then a resident of New South Wales, was
stationary at the intersection of Epping Road and Lane Cove Road, intending to
execute a
left hand turn into Lane Cove Road. The defendant collided with the
rear of the plaintiff's vehicle. Liability was admitted on the
pleadings, and
the matter proceeded before me by way of an assessment of damages only.

  

   The plaintiff was a young woman of
26 at the time of the accident. She was
employed in a quite senior position in a computer company as an events
manager, responsible
for organising and co-ordinating sales presentations. She
had been involved in the computer industry since she left school and completed
a six month TAFE secretarial course. At the time of the accident the company
that she was with was undergoing a major reorganisation,
and her position was
in fact to be abolished, but the plaintiff was in any event preparing to move
to the Australian Capital Territory,
where her partner had been transferred to
take up a position as regional manager for the computer company that he was
involved with.
The plaintiff commenced this action while a resident of the
Australian Capital Territory. She has since married, and at the opening
of
proceedings I granted leave to amend the plaintiff's name in the proceedings
from Kimberley Waterhouse to Kimberley Foster.


 

   The plaintiff claims that as a result of the accident she suffered soft
tissue type injuries to the neck and lower back. She
says that the neck injury
has resolved through physiotherapy, but that the lower back injury continues
to cause her significant difficulty,
both in terms of employment, and in the
course of her day to day activities. In December 1997 she gave birth to her
first child,
and she finds that the normal activities of caring for her son
aggravate her back condition.

  

   Soft tissue type injuries to
the lower back are notoriously difficult to
demonstrate objectively, as commonly there are no radiological abnormalities,
and frequently
matters proceed in this court with a group of doctors who
report for the plaintiff and describe injuries of some significance, and
a
group of doctors who report for the defendant and describe injuries of
minuscule significance, or indeed no injuries at all. In
the present case,
there is in fact a significant degree of agreement in the medical reports, as
the expert witnesses who reported
for both the plaintiff and the defendant
describe genuine ongoing symptoms of soft tissue injury to the lower back,
with genuine
ongoing disability. No attack was made on the credit of the
plaintiff, and no doctors were required for cross examination on the
medical
reports. The real issues before me concerned the extent and duration of the
injuries, and their impact on the plaintiff's
economic capacity.

  

   On the day of the accident the plaintiff was driving to a work
presentation. The car behind her, driven
by the defendant, was also on it's
way to this function. The plaintiff says that she was looking to the right to
observe oncoming
traffic before executing her turn when the impact occurred.
She described it as being of significant force, pushing her car across
to the
kerb of the laneway at the intersection. She said that she felt immediate
discomfort to the neck and back. Both cars appeared
to be driveable, and the
plaintiff and the defendant returned to the office. In fact the vehicles had
subsequently to be towed away
from the office. The plaintiff immediately took
a cab to a local medical centre, where she was seen by a general practitioner,
Dr
Steele.

  

   He diagnosed soft tissue injury to the neck and lower back, and referred
the plaintiff for physiotherapy. The plaintiff
says that she attended these
treatments over the next few weeks, and noted a gradual improvement to her
neck, but that the back pain
persisted. She returned to work on a part time
basis at the end of January, and persisted with this until 28 February, when
she left
her employment to move to Canberra. She says that during this return
to work for about 4 hours a day she was mainly engaged in instructing
the
person who was to take over her tasks, as she was preparing to leave in any
event.

  

   The plaintiff and her husband moved
to Canberra on 3 March 1995. She
commenced physiotherapy treatment with a Canberra practitioner on 3 April. A
report from Ms Howell,
her physiotherapist, states that the plaintiff
complained of increased lumbar pain on 19 April after a trip to Sydney. During
the
first few months in Canberra the plaintiff was working on a casual and as
needed basis with her husband's firm, doing clerical and
receptionist duties
to fill in for other staff as required. She says that she pursued some
contacts about positions similar to the
one she had left in Sydney involving
presentation work and events management, and that she obtained two interviews.
She says that
she was frank at these interviews about her ongoing back pain,
and that no job offer was forthcoming. In June 1995 she obtained a
full time
position with a computer company in Canberra dealing with licensing enquires
from major corporate and government clients.
She says that this work was less
complex, and less well paid, than the work she had been doing in Sydney.

  

   The plaintiff says
that her return to full time work caused problems with
her lower back. She saw her Canberra general practitioner. No reports were
provided from her Canberra general practitioner. She saw Dr Robert Scott,
occupational physician, on 6 July 1995 for the purposes
of a medico legal
report. He found that she had normal neck range of movements, but with some
pain, but pain increasing in her lumbar
area, particularly after sitting. He
diagnosed soft tissue injuries, but said that it was too early to determine
the extent that
these left her with an ongoing incapacity. Dr Scott saw the
plaintiff again in October 1996, and reported that she continued to have
soft
tissue injury, which reduced her working capacity.

  

   The plaintiff was referred by her general practitioner to Dr Ashman,
an
orthopaedic surgeon, for treatment in August 1995. He said

  

  

   "Clinically this lady has sustained some form of soft tissue
injury as a
result of a motor vehicle accident and I have reassured her that her symptoms
will eventually settle with the passage
of time and she should have no long
term disabilities. I have pointed out however that this is a long slow process
and may take several
years. It sounds as if she is having appropriate
treatment and I have emphasised the need for her to continue with physical
therapy
particularly whole body aerobic exercise and back muscle strengthening
exercises."

   The plaintiff also attended Dr Chandran for
treatment, and he administered
two cortisone injections to her lower back. She says that the first such
treatment, in January 1996,
provided some relief, but that she obtained no
relief at all from the second treatment, in June 1996. No report was provided
by Dr
Chandran.

  

   The plaintiff cut down her work in July 1995 to 5 hours a day. In February
1996 she extended this to 6 hours a
day. In October 1996 she attended Dr
Brook, a rheumatologist, on the recommendation of her general practitioner. He
confirmed a soft
tissue type injury, and expressed the view that

  

  

   "...the prognosis for such symptoms after motor vehicle accidents is
good,
and I have encouraged her to get fit and improve the musculature that control
the symptomatic regions."

   The plaintiff was
examined twice by Dr Scott Finlay, a consultant
orthopaedic surgeon. In his report of 3 May 1996 he found that the plaintiff
had
a soft tissue injury as a result of the motor vehicle accident. He found
that

  

  

   "...the plaintiff is incapacitated for
some time as a sales representative
but I anticipate that with her motivation and her fairly intelligent approach
that she should
be able to get back to part time work and then gradually back
to full time work."

   He noted that she was presently away from work,
but was expecting to return
to her part time job. He noted that she was incapacitated for household and
leisure activities, and concluded

  

  

   "I think that Ms Waterhouse will endeavour to get back to work and overcome
her disability. The prognosis for the back,
however, is rather grim."

   In his report of 28 January 1998 Dr Scott Finlay concluded that the
plaintiff

  

  

   "...had a
soft tissue injury primarily of the right sacro iliac joint and
sacro iliac ligament as well as soft tissue injuries of the neck
and the lower
part of the lumbar spine. The latter 2 have resolved. The cause has been the
accident in the manner described. She
is fit for restricted work. She should
restrict herself to the advice offered of work intermittently on restricted
hours on restricted
days. She does not need alternate employment. The return
prognosis is probably good. The long term prognosis, however, is one fraught
with a great deal of discomfort. Even though it will subside, there will
probably be a background to it."

   The plaintiff has also
been examined by Dr Carr, a rheumatologist, on two
occasions. In his report to the defendant's solicitors on 20 October 1997 he
found
an ongoing impairment to the plaintiff's back as a result of the motor
vehicle accident which he put at 15% in his summary report.
In his more
extended report he expressed the view that the plaintiff would be fit to work
on a part time basis to 30 hours a week,
but he said

  

  

   "...her prognosis remains poor."

   He confirmed these views in a report of 6 February 1998 where he said

  

  

   "Kimberly continues to suffer from chronic persistent localised right sided
lumbo sacral pain since her motor vehicle
accident of 19 1 1995, though the
source of these symptoms is uncertain, be it discogenic origin, facet joint
origin or sacroiliac
joint origin. I feel she has had a definite injury and
her back has been injured. In my opinion she has a 15% permanent impairment
of
her back as a result of motor vehicle accident of 19th January 1995."

   Mrs Foster said that her lower back pain caused her
real distress and pain
both at work and in her day to day activities. She is limited in the amount of
time that she can sit at a
desk, but finds some relief in standing up and
walking around. She is unable to tolerate long car trips. Carrying and lifting
cause
difficulties. She has encountered difficulties in lifting and carrying
her new son, and indeed found constant breastfeeding caused
real pain. She now
partly breastfeeds and partly formula feeds, so that her husband can assist.
She no longer does the heavier household
tasks such as vacuuming, mopping and
cleaning baths. For a while these tasks were performed by her husband, but now
they engage a
cleaner.

  

   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'."

   Counsel for the defendant acknowledged that the medical evidence indicated
that the plaintiff had suffered ongoing soft tissue
injuries, but argued that
this should only attract general damages at the lower end of the spectrum.
Taking into account the whole
of the medical evidence, and the plaintiff's own
evidence, I am unable to agree that this is only a minor difficulty. I find on
all
of the evidence that the plaintiff has suffered soft tissue injuries,
originally to her neck and back, but with ongoing and moderately
severe
symptoms affecting her lower back. I am satisfied that her back gives her
ongoing pain and discomfort and affects all aspects
of her life. I note that,
while the doctors are hopeful of an eventual return to full work hours, and
have noted her positive approach
to her rehabilitation, they note that she
will continue to experience pain and discomfort indefinitely. I note also that
the plaintiff
is a young woman who has recently given birth to her first
child, and that her accident related back condition is causing her pain
and
discomfort in the care of her child, who is still only ten weeks old. As her
counsel observed, her son will not be getting any
lighter, and it is clear
that the plaintiff is going to experience further difficulties over the years
in relation to the provision
of care for her son.

  

   In relation to general damages, I would award the sum of $40,000, which is
toward the higher range for
soft tissue type damage. I note that the plaintiff
is likely to continue to suffer pain and restrictions on her lifestyle for
many
years to come, and particularly in the provision of care for her child,
and future children. Accordingly it is appropriate to allocate
only half of
the overall award for past loss, generating interest of $1,262, leading to a
total award for general damages of $41,262.

  

   Out of pocket expenses have been agreed for the past in the sum of
$6,469.20, which I award. The plaintiff has particularised
a claim for future
out of pocket expenses at the rate of $15.20 per month for pharmaceuticals,
$18,000 per annum for supervised exercises,
including physiotherapy and
hydrotherapy, $250 per annum for general practitioner visits, and a sum of
around $300 for future psychological
treatment. The plaintiff acknowledged in
cross examination that she has not taken any medication since early last year,
because of
her pregnancy and the fact that she is continuing to breast feed,
and that she had not had specific general practitioner visits due
to her back
for the same period. Nor has she had regular ongoing physiotherapy or exercise
programs.

  

   While the defendant
argued that no claim for ongoing out of pocket expenses
is made out, I am satisfied that, even though she has not had ongoing
medication,
she will over future years have the need for periods of pain
relief and physiotherapy, as well as occasional visits to a doctor.
While
there have been references to the possibility that she could benefit from
counselling due to the likelihood of her condition
becoming chronic, there is
no opinion from a psychologist or psychiatrist recommending such treatment,
and the defendant's doctors,
while acknowledging the plaintiff's genuine pain
and disability, have noted her positive approach for recovery. In the absence
of
any clear ongoing regular expenses, it is appropriate to award a modest
global discretionary award for future out of pocket expenses,
which I award in
the sum of $4,000.

  

   The plaintiff makes a claim for both past and future economic loss. This
was particularised
as an arithmetic ongoing loss, based on the difference
between what had been her wages in her position as an events manager for a
Sydney computer company, and her earnings in the years since. Counsel for the
plaintiff produced a schedule which calculated her
loss up to November 1997
when she ceased work to take maternity leave, at $48,161.57.

  

   The plaintiff acknowledged in cross
examination that the job that she had
held as an events manager was in fact to be abolished as part of the
restructure of the company,
and that she had been offered the chance to remain
with the company, but in a reduced role. As these events coincided with her
planned
move to Canberra due to her husband's transfer, she did not pursue the
matter further, and voluntarily left that employment to come
to Canberra. She
said that she had expected to be able to find similar employment here, but she
was frank about her disabilities
in two interviews, and eventually found work
in the computer industry, but at a reduced level, and accordingly at a reduced
rate
of pay. While she initially obtained work on a full time basis, she
subsequently reduced her hours.

  

   Counsel for the defendant
argued that the plaintiff should be entitled only
to a modest buffer amount in respect of past wage loss, which he suggested be
in
the sum of $10,000 to $15,000. He argued that the plaintiff had reached a
relatively senior position with one company, only to find
that that position
was to be abolished, and that she would have had to start again with another
company before reaching an equivalent
position. He also argued that the
plaintiff had to expect, because of her decision to transfer to another city,
to suffer some interruption
with her career.

  

   Counsel for the plaintiff acknowledged that these factors would mean that
the precise arithmetic schedule
that he had prepared would not be appropriate,
but he argued that the plaintiff could, absent the accident, have reasonably
been
expected, after some disruption, to obtain an equivalent senior position
in the computer industry in Canberra after her move, and
again upon her return
to Sydney. He pointed to very favourable references which were put in
evidence. I am satisfied that given the
medical evidence, which makes it clear
that the plaintiff has been clearly restricted to part time employment in
recent years, that
she has indeed suffered a significant real wage loss as a
direct result of the accident, and that, absent the accident, she could
have
expected that her skills and experience would mean that she would experience
little difficulty in finding appropriate employment
in Canberra or Sydney.
Accordingly, a substantial discretionary sum for past wage loss, recognising
that the precise schedule prepared
by the plaintiff's counsel does not take
into account the inevitable adjustments for two moves of city in the period
from the accident
to the trial, is appropriate. I award the sum of $35,000 for
past wage loss inclusive of interest.

  

   In relation to future
loss, counsel agree that this must be a matter for a
discretionary buffer award. Counsel for the defendant argued that this again
should be modest in around the same sum as for past wage loss. Again, based on
the whole of the medical evidence, I am unable to
accept this submission. I am
satisfied from all of the medical evidence that, while the plaintiff may be
able to achieve full working
hours, this will only be in a more sedentary form
of employment than she previously enjoyed, and even this is not certain. She
will
certainly continue to suffer pain and discomfort, which will put her at a
disadvantage in a competitive industry such as computer
sales and support. She
will be unable to work the prolonged hours that may be expected in a position
such as she had previously occupied.

  

   The plaintiff acknowledged that it would be her hope to return to the
workforce some time between three and six months after
the birth of her child,
and to obtain part time work at first, building up to full time work. She
acknowledged that at some time
she may well have another child, but not for
some years. She said that she would not feel able to do the extended long
hours of her
pre accident employment, but would hope to be able to achieve the
occasional long day where necessary.

  

   Overall, I am satisfied
that this young woman has suffered injuries that
are going to have a marked and long term impact on her earning capacity. While
she
has been able to return to the workforce, she has not achieved long term
full time hours, and indeed was forced to cut back her hours,
first to 5 hours
a day and then to six hours. She will continue to be at a marked disadvantage
in the open market, even where she
is able to achieve full time hours. She is
still only 28 years of age. In respect of future economic loss, I award the
sum of $60,000
by way of a general discretionary buffer.

  

   A claim has been particularised for Griffiths v Kerkemeyer damages, that is
an
award to compensate the plaintiff for the cost of personal services which
have been required because of the accident. This relates
to the plaintiff's
evidence that, before the accident, she did all of the work about the house,
but that after the accident her husband
did a couple of hours a week of
heavier housework, such as vacuuming and mopping. During this time the
plaintiff continued to perform
other household duties, and she said that she
and her husband were putting in about the same amount of time on household
duties.
She acknowledged in cross examination that both she and her husband
took benefit from the household chores that each performed. The
plaintiff and
her husband have, since late last year, engaged a cleaner to attend to the
heavier duties around the house on a fortnightly
basis at a cost of $50.

  

   Counsel for the defendant argued that this type of rearrangement of duties
does not sound in Griffiths
v Kerkemeyer damages. I am not satisfied from the
evidence that the domestic services described by the plaintiff are anything
other
than the mutual give and take of persons in a domestic relationship
which, on the authority of Van Gervan v Fenton [1992] HCA 54;  (1992) 175 CLR 327, does not
sound in damages.

  

   This amounts to a global award of $146,731.20 which I consider to be
appropriate
in all the circumstances, and award with costs.