Deborah Diane Rath v Graham Edward Quigg and Australian Postal Corporation [1998] ACTSC 210 (8 May 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident - Soft
tissue injury to cervical spine - Ongoing restrictions - Chronic Pain
Syndrome
- No issue of principle.

  

  

   CANBERRA, 14-15 April 1998 (hearing), 8 May 1998 (decision)

   #DATE 8:5:1998

  

   Counsel for the Plaintiff: Mr G Stretton

   Instructing Solicitors: Snedden Hall & Gallop

   Counsel for the Defendant:
Mr R McIlwaine SC & Mr B Skinner

   Instructing Solicitors: Australian Government Solicitor

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff against both defendants in the sum
of $404,995.85.

   2. The defendants pay the
plaintiff's costs.

  

  

   MASTER T. CONNOLLY

  

   This is a claim for damages for personal injuries arising out of a motor
vehicle accident on 17 April 1986. The plaintiff, who was then a young woman
of 23, was stationary in a line of traffic on Wentworth
Avenue Kingston when
she was struck from behind by the first defendant, who at the time was an
employee of the Australian Postal
Corporation and was driving an Australia
Post Ford Truck. The plaintiff suffered soft tissue type injuries to the
cervical spine.
While the initial medical advice was that these injuries would
settle and eventually resolve, the plaintiff has continued to complain
of
disabling pain for twelve years. Liability was not in issue, and the matter
proceeded by way of an assessment only.

  

   The
plaintiff was born in Tumut, New South Wales in December 1962, and
completed her education to Year 10 at Woden High School in 1978.
In early 1979
she undertook a three month typing and office skills course on a full time
basis at the Metropolitan Business College,
and in April of that year obtained
full time employment as a pharmacy assistant at a Canberra pharmacy. In 1980
she applied for entry
to the Australian Public Service, and she successfully
sat the entrance examination . In February 1981 she commenced work as a
Clerical
Assistant Grade 1 with the Department of Defence at Russell Offices.
Over the years she achieved promotions to the level of Clerical
Assistant
Grade 3 and at the time of the accident she was acting in a position of Clerk
Class 5.

  

   The plaintiff says that
she had been actively involved in a range of
sporting and recreational pursuits up to the time of the accident. She had
been in generally
good health, although she had injured her lower back while
moving a Chubb safe drawer at work in late 1985. She consulted her general
practitioner Dr Hardy, and returned to work after a few days, and had ongoing
physiotherapy thereafter. She had a "niggling" low
back pain for some time,
and indeed had attended physiotherapy the day before the accident the subject
of this claim.

  

   The
plaintiff described the impact as involving a sudden jolt forward in
her seat, and then a further jolt as she slammed on her brakes
to avoid
hitting the car in front of her. She said that she immediately noticed a
burning feeling at the base of her skull, and consulted
Dr Hardy that
afternoon. He ordered x rays, which reported as normal, and referred her to
physiotherapy. Her symptoms of stiffness,
soreness and tenderness about the
neck continued, and in early May she experienced a cracking sensation and
difficulty with neck
movements when getting out of bed, and attended at the
casualty department at Woden Valley Hospital. Her general practitioner then
referred her to Dr Tymms, a rheumatologist. In April 1987 he reported to the
plaintiff's then solicitors that

  

  

   "My opinion
was she had a classical traumatic cervical syndrome, that is,
whiplash injury and this sort of injury which involves soft tissue
often does
take some months to improve and in almost all cases resolve."

   He indicated at that time that he felt that the long
term prognosis was
good.

  

   The plaintiff was off work until July 1986, when she returned to work. She
says that she had great
difficulty in coping with her duties, and would rest
under her desk at lunch times in order to relieve the pain. Mr Phillips, who
is a manager in the public service and who had been the plaintiff's line
manager at the time, confirmed that the plaintiff was in
obvious difficulty at
this time.

  

   Around this time the plaintiff and her now husband moved their residence,
and she became
a patient of Dr Stevenson, who has remained her general
practitioner. He varied her medication due to weight gain and noted that
she
was continuing to complain of pain and depression. In March 1987 she was
referred to Dr Chandran. He found no abnormalities on
x ray or CT scan, and
concluded that she was suffering from soft tissue injury which he expected to
resolve. Throughout this period
she continued to work and complain of pain.

  

   In May 1988 the plaintiff was referred to Dr Cassar a physician who
conducts
a pain management clinic in Canberra. He confirmed that the
plaintiff's injuries were soft tissue in nature, and provided a course
of
treatment. In a report of August 1989 he noted that the plaintiff had taken
maternity leave, but felt that the prognosis for return
to work was good.

  

   The plaintiff reduced her hours of work in February 1989 before commencing
maternity leave at the end of
March 1989. Her son was born in May, and she
continued on maternity leave before beginning a graduated return to work in
October,
working 12 hours a week. This caused ongoing pain, and from January
1990 she reduced her hours to 9 hours per week. The plaintiff
fell pregnant
again, and commenced maternity leave at the end of February 1991, with her
second son being born in April 1991. She
resumed work in October 1991, again
working 9 hours per week. In July 1992 Dr Cassar reported that her pain
condition was now permanent,
and that she had an ongoing limitation to three
hours per day.

  

   The plaintiff continued to try alternative treatments in order
to alleviate
her condition. She tried facet joint injections, but was allergic to the
treatment. She in fact increased her work hours
to 25 hours a week in November
1996, and continues to work those hours. She works in a position which has
been permanently classified
at a 25 hours a week position, and the Public
Service has through its own internal processes certified that this is the
limit of
her abilities.

  

   The defendant provided medical reports from Dr Henke, a consultant in
rehabilitation medicine and Dr Mellic,
a consultant neurologist. Both agreed
that the plaintiff did suffer from soft tissue injuries in the accident. Dr
Henke expressed
the view that in 1994 she should be able to return to full
hours. Dr Mellic expressed the view that her prime problem in 1994 was
a
chronic pain syndrome. Although he expressed the view that this is not
causally related to the accident, I accept that the presence
of a chronic pain
syndrome, which indeed is pleaded by the plaintiff, is related to the pain
from her soft tissue injuries.

  

   Dr Scott, an occupational physician, reported for the plaintiff in April
1997. He formed the view that the plaintiff had suffered
soft tissue injuries
. He said

  

  

   "In my experience, in the absence of any radiological problems, these soft
tissue injuries
to the neck - whiplash - either resolve quickly in a matter of
weeks or move into the chronic pain situation - the situation I believe
Mrs
Rath is currently in... In my opinion she requires active, intense
psychological counselling, including pain management advice,
and minimal
medical involvement. I believe it is more likely than not that her current
symptoms and disabilities were caused by,
or arose from, the MVA. In my
opinion she should be encouraged, along with my recommendation in 3) above, to
work hard on a GRTW,
under close monitoring, to achieve return to satisfactory
full time work within six months. I believe the adversarial situation has
not
helped Mrs Rath's condition, improvement and prognosis."

   The plaintiff also provided a report from Mr Sutton, a clinical
psychologist, who confirmed the presence of chronic pain syndrome. He formed
the view that this was related to the accident, and
that the plaintiff would
benefit from further pain management.

  

   On all of the evidence I am satisfied that the motor vehicle
accident on 17
April 1986 caused the plaintiff soft tissue injuries to the neck which have
been productive of ongoing pain, and which
has resulted in the development of
a chronic pain syndrome.

  

   The principles to be applied in determining compensation in personal
injuries cases have recently been summarised by McHugh J in Nominal Defendant
v Gardikiotis (1996) 1 CLR 49 where his Honour said
(at 54):

  

  

   "When a defendant has negligently injured a plaintiff, the common law
requires the defendant to pay a money
sum to the plaintiff to compensate that
person for any damage that is causally connected to the defendant's negligence
and that ought
to have been reasonably foreseen by the defendant when the
negligence occurred. The sum of money to be paid to the plaintiff is that
sum
which will put the plaintiff, so far as is possible, 'in the same position as
he would have been in if he had not sustained the
wrong for which he is now
getting his compensation'."

   In relation to general damages I assess the plaintiff on the basis that
her
injuries were soft tissue in nature, but have persisted and led to the
development of chronic pain syndrome, but falling short
of a clinical
diagnosis of reactive depression. I take into account that the plaintiff has
suffered ongoing restrictions to her recreational
and general lifestyle. I
take into account that these disabilities have occurred while she is a
relatively young woman, and during
the period in which she has started a
family and raised them to school age children. I note that the chronic pain
syndrome is seen
as a major cause of ongoing disability, but that the
prognosis for this, particularly taking Dr Scott, the occupational physician
who reported for the plaintiff, seems reasonably positive. While Dr Cassar
says no improvement from the plaintiff's present 25 hours
per week in the
workforce is possible in his opinion, I note that in his 1992 report he said
that he could not see her achieving
25 hours per week and expressed the view
that three hours per day was her maximum level. I assess general damages in
the sum of $35,000,
which I consider to be toward the upper range for soft
tissue type injuries. I would attribute $25,000 of this to past loss,
generating
interest of $6,032, making a total award for general damages of
$41,032.

  

   In relation to economic loss the plaintiff set out
the claim in a manner
which was arithmetically agreed, if I was to find her past loss attributable
to the accident. I have so found.
I therefore award the sum of $185,202.15 as
claimed for past loss of earning capacity. There is also a claim for loss of
sick leave
of $5,801.40, loss of long service leave of $1,312.84 and loss of
recreation leave of $2,170.10, which I award.

  

   The plaintiff
has been in receipt of Comcare payments as the accident
occurred during working hours, and there is a claim pursuant to the principle
in Fox v Wood of $41,745.90 which I award.

  

   The plaintiff's claim for future economic loss is premised on her being
limited
to 25 hours per week for the balance of her working life. For the
reasons that have been set out above, I am not persuaded to the
relevant
standard that this is made out. I need not repeat the extracts from medical
reports that I have set out in paragraphs 10-12
and 15 above. Having found
that the chronic pain syndrome has a significant part to play in the
plaintiff's present level of disability,
and noting Dr Scott's prognosis, I am
not satisfied that the plaintiff must be found to be permanently limited to
her present working
hours. The fact that such a finding has been made for
internal public service reasons cannot be binding on a tortfeaser, and my
assessment
of future economic loss must be based on all of the evidence. I
would in all of the circumstances of the present case, and noting
the
plaintiff's past as well as future prognoses from her specialists, as well as
the views of the defendant's doctors, award a significant
buffer for future
economic loss in the sum of $60,000.

  

   Out of pocket expenses were agreed in the sum of $55,731.46. Of this
some
$49,408.13 had been paid by Comcare. I award the sum of $55,731.46 for past
out of pocket expenses.

  

   The plaintiff claims
ongoing medical expenses at the high rate of around
$3,000 per year. I accept that in the past two years this has in fact been her
actual out of pocket expenditure since Comcare ceased payment. I am not,
however, persuaded that ongoing expenditure of this nature
is appropriate or
made out in all of the circumstances of the case. Given my findings on the
nature of her condition and its prognosis,
a buffer for out of pocket
expenses, taking into account the desirability of further treatment in
particular for chronic pain counselling
seems appropriate, and I award the sum
of $12,000 under this head.

  

   A Griffiths v Kerkemeyer claim was made in this matter,
based on the
domestic assistance provided by the plaintiff's husband. The plaintiff
acknowledged that she was able to contribute
to household tasks, but claimed
that her husband undertook the heavier duties. The claim was based on the
husband doing around three
hours per week "over and above" a normal range of
mutual domestic assistance. This claim was clearly so framed to fall within
the
principles set down in Van Gervan v Fenton [1992] HCA 54;  (1992) 175 CLR 327, but on all
of the evidence I am not satisfied that the circumstances of this case fall
outside the range of
mutual domestic give and take so as to amount to a
separate head of damages.

  

   This amounts to a global award of $404,995.85
which I consider to be
appropriate in all of the circumstances.