Sandra Marilyn Joan Alps v Mariana Miculescu [1998] ACTSC 238 (12 June 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Personal Injuries - Motor Vehicle Accident - Knees Striking
Steering wheel - Back Pain - Neck Pain - Physical Disabilities - Psychological
Trauma - Post Traumatic Stress - Anxiety - Panic Attacks when Driving - Re
skilling - Physical Incapacity - Ability to Work - Economic
Loss - No Issue of
Principle

  

   Nominal Defendant v Gardikiotis [1995] HCA 56;  (1996) 186 CLR 49

  

  

   CANBERRA, 18-20 May 1998 (hearing), 12 June 1998 (decision)

   #DATE 12:6:1998

  

   Counsel for
the Plaintiff: Mr. G. A Stretton

   Instructing Solicitors: Messrs Barker Gosling, Lawyers

   Counsel for the Defendant: Mr. R.
F. Livingston

   Instructing Solicitors: Hunt and Hunt

  

  

   THE COURT ORDERS THAT:

  

   There be judgment for the plaintiff
in the sum of $279,581.48

   The defendant to pay the plaintiff's costs.

  

  

   MASTER T. CONNOLLY

  

   2. This is a claim
for damages for personal injuries arising from a motor
vehicle accident which occurred on 5 May 1993 at the intersection of Coughlan
Street and Baker Street in Subiaco in Western Australia. The plaintiff was
then a resident of Western Australia, but she moved to
Canberra in August 1993
and brought this action as a resident of the Australian Capital Territory.
Liability was admitted, and the
issue proceeded before me by way of an
assessment only.

  

   3. The plaintiff was born in Bristol in the United Kingdom in August
1944,
and migrated to Australia with her family after completing three years of
secondary schooling in England. She worked in a range
of jobs, including a
year as a trainee nurse, before working for three years as a technician
assisting in photographing the missile
tests at Woomera Rocket Range in
outback South Australia in the mid sixties. She married her first husband at
this time, and in 1967
left the workforce when her daughter was born.

  

   4. The plaintiff re entered the workforce when her daughter commenced
school,
working in a secretarial capacity for a locum service in Perth, and
then for the Senior Medical Officer with the Royal Australian
Air Force. In
1972 she commenced what was to become 15 years of employment with a Perth
pharmaceutical wholesaler and operator of
retail pharmacies. She eventually
rose to be company secretary of this company, and began working with
computers.

  

   5. The
plaintiff married her present husband in 1986. He is a consultant in
computing services, with a degree in computer science.

  

   6. In 1980 the plaintiff was involved in a motor vehicle accident, which
involved back pain and bladder shock, and required the
plaintiff to take about
three weeks off work. The back pain resolved after about two years, and the
incident is of no relevance to
her present claim.

  

   7. In 1987 the plaintiff developed a repetition strain injury involving her
neck right arm and hand. This
was a work-related injury, and the plaintiff
ceased work in August 1987. She received ongoing treatment for this condition,
including
treatment from a clinical psychologist for depression. The plaintiff
briefly re entered the workforce as a trainee programmer in
around 1988.

  

   8. In 1989 the plaintiff and her husband traveled to the United Kingdom.
The initial intention was to have a
holiday for about six months, but Mr. Alps
applied for consulting work in England, and was successful, so they stayed for
about two
years. During this time the plaintiff did not engage in paid work,
but she did assist a family friend in developing a software system
for use in
a real estate agents office, and she undertook training courses in a computer
language known as "Clipper".

  

   9.
In February 1991 the plaintiff and her husband returned to Perth, and
the plaintiff's husband continued in the computing consultancy
field,
operating through a family company. The plaintiff, her husband and her
husband's brother also started work at this time to
develop a software package
for use in the insurance industry. The plaintiff's brother in law was involved
in this industry, and together
they identified a market opportunity for a
computer application, which would be of benefit to insurance agents. For the
next two
years the three of them worked together to produce an application
known as "controller", which was released on to the market in February
1993.

  

   10. During this period the plaintiff had successfully completed some units
in an associate diploma in computer studies
course at the Mount Lawley College
of Technical and Further Education, and had designed and presented a course at
the college in
the "Clipper "language.

  

   11. The plaintiff developed a serious eye condition in May 1991, which
required intensive treatment.
At one stage the condition was wrongly
diagnosed, and the plaintiff was told that she could have a life threatening
condition and
only weeks to live. This resulted in depression, and the
plaintiff was prescribed Prosac for depression. She stopped working on the
Controller project for a period, but was able to return by late 1991.

  

   12. The Controller project was released on to the Perth
market in early
1993. It was priced from $99, and about a dozen sales were made. The plaintiff
and her husband nevertheless hoped
that it would prove very successful. They
acknowledged that there was an immediate problem in that the system was
written in a non
standard language, and came on to the market just at the time
that the Microsoft Windows operating system was becoming the industry
standard
because of its ease of use. The plan in early 1993 was to develop a version of
Controller in the Windows format.

  

 
 13. The plaintiff and her husband said that enquiries from the industry
were encouraging, but that it would be necessary to develop
an Eastern States
presence, and her husband came to Canberra in early 1993. I note that there
are references in the medical reports
to her husband taking up a contract in
Canberra, and he acknowledged that he was doing consultancy work in addition
to development
of the project. In any event, he came to Canberra, and the
plaintiff continued with some sales in Perth, as well as development of
the
project.

  

   14. The accident involved a collision of some force to the driver's side
door. Some $1700 worth of damage was
done to the plaintiff's vehicle, but it
could be driven away. The plaintiff felt her hips twist at the impact, but was
not initially
aware that her knees had struck the steering wheel. She was at
the time on her way to a presentation of the Controller package, and
she
completed this task, and then attended her local general practitioner.

  

   15. Dr Denz, her general practitioner, reported
in August 1993 that he saw
the plaintiff on the day of the accident, and that both her knees were badly
bruised above the patella.
He recommended rest and ice to the knees. He saw
her again on 7 May, where she reported pain in both knees, and he referred her
to
a physiotherapist. On 12 May she complained of back pain and continuing
knee pain. He continued to see the plaintiff until mid July,
when she was
reporting continuing, but improved discomfort and pain in the knees and neck
and back discomfort.

  

   16. Dr Denz's
opinion was that the plaintiff would have been totally
incapacitated for about a week, with ongoing partial incapacity, but gave
a
prognosis for a gradual recovery, with some ongoing knee pain.

  

   17. The plaintiff says that she decided that she could no
longer continue
to work on the project alone in Perth, and that she would come to Canberra. to
be with her husband Dr Denz's report
states that the plaintiff was:

  

  

   "moving to Canberra to be with her husband who was now working there".

   18. Mr. Alps
acknowledged that he was involved in consulting work in
Canberra, as well as the Controller project.

  

   19. The plaintiff continued
with chiropractic treatment in Canberra, and
continued to experience pain and discomfort. The plaintiff says that in
September 1993
she and her husband decided that the Controller project could
not go ahead because of the plaintiff's injuries, as the plaintiff
and her
husband could not go ahead with the development of the Windows version of the
project due to her condition. At this stage
the plaintiff's condition involved
pain and discomfort of the neck, back, and knees, but no psychological
component had been detected.
While I accept that this condition would have
precluded the plaintiff from getting out and demonstrating and selling the
then existing
controller package. I am not satisfied that this condition would
itself have precluded the plaintiff from continuing with her husband,
to work
at home and with great time flexibility, on a windows based version of the
product.

  

   20. The plaintiff saw Dr Reid
in Canberra from early 1994. He confirmed in
a report of April 1994 that she continued to complain of pain to her knees,
and upper
back and neck pain. He expected a good prognosis, but stated

  

  

   "Mrs. Alps cannot work effectively at present because of
the problems that
she is undergoing, and because her work is as a consultant, this will be
limited to at least some degree by her
injuries."

   21. Dr Reid referred the plaintiff in February 1995 to a clinical
psychologist, Marshall O'Brien, initially for chronic
pain. In July 1995 the
plaintiff and her husband moved, at very short notice, to Darwin, when his
consultancy contract in Canberra
was not renewed, and an opportunity for
further work arose in the Northern Territory. She continued with physiotherapy
in Darwin,
and continued to complain of knee and back pain.

  

   22. Dr Hopkins, a consultant orthopedic surgeon, examined the plaintiff
for
medico legal purposes in Darwin. He concluded that by the time of his report
in May 1996 her neck and back pain and discomfort
had largely settled, and her
major ongoing problem was her right knee. He noted that she would likely be
left with some mild permanent
disability with particular regard to her right
knee, but said that it was too early to make a definitive assessment, and
recommended
rehabilitation services. In relation to her employment capacity,
he said:

  

  

   "At the present time Mrs. Alps does not appear
to be capable of undertaking
the type of work she was doing previously and it may be some time before this
is the case. I would suspect
that there has been some fairly significant
psychological trauma to her over the last three years and this in itself would
be an
impediment at the moment to returning to gainful employment."

   23. In July 1996 a Darwin neurosurgeon, Dr Yaksich, reported to
the
plaintiff's solicitors. He confirmed an ongoing knee injury and resolving soft
tissue injury to the back, but noted that the
plaintiff was anxious and
distressed at the lost opportunity to successfully market the computer
programme which she had developed
with her husband, and noted that:

  

  

   "a major problem when I saw her appeared to be the stress and anxiety that
had been
generated by her change in work circumstances and it is likely that
she will need some continuing or ongoing help in that area."
He felt that she
was a suitable candidate for a pain management programme."

   24. The Director of the Rehabilitation Service at
Royal Darwin Hospital, Dr
Flavell, reported to the plaintiff's solicitors on 3 July 1996. He again noted
the disability to her knee,
and neck pain, and said:

  

  

   "She has symptoms compatible with a significant post traumatic stress
disorder and the physical
disabilities and subsequent social changes have
served to disempower her with a consequent depression and severe lowering of
her
self esteem and disturbance of her body image."

   25. He recommended a rehabilitation programme, and said:

  

  

   "with an
appropriate programme I do however believe that she may well
improve to be able to return to work in a productive capacity."

  
26. The plaintiff returned to Canberra with her husband in August 1996. Dr
Scott, an occupational physician, examined her in November
1996. He
recommended psychological counseling to deal with her chronic pain syndrome.
He said:

  

  

   "during the assessment,
time and time again, the message was received that
she felt that the MVA, and its sequel, were the cause of the failure of what
was
described as an expanding business venture, with great potential."

   27. Dr O'Brien has continued to provide counseling to the
plaintiff since
her return to Canberra. He reported in January 1997 that the plaintiff was
experiencing post traumatic stress disorder,
and that she would continue to
need treatment. In a report in May 1998 he confirmed this diagnosis, and
reported on instances where
the plaintiff has become highly agitated and
distressed due to panic attacks which come on when driving. The plaintiff says
that
these have only emerged in recent years.

  

   28. Dr Veness, a consultant psychiatrist, examined the plaintiff for medico
legal
purposes in February 1998, and confirmed a diagnosis of post traumatic
stress disorder. He said:

  

  

   "She is quite unfit
for gainful employment. The fact that the condition has
lasted this long, despite intensive psychological treatment, indicates a
poor
prognosis. I cannot foresee any recovery back to a state of health where she
would be able to work again. She continues to need
this regular psychological
therapy and will probably need it for three or four more years. Treatment is
more likely to be of benefit
if it is directed at her overcoming her grief at
her losses and adjusting to a life of partial disability. Rehabilitation,
retraining
and reskilling are impossible tasks in a patient with these levels
of anxiety."

   29. Dr Wearne, a consultant orthopedic surgeon,
examined the plaintiff for
medico legal purposes in September 1997. He found ongoing knee pain,
particularly in the right knee, which
continued to limit her physical
activities. He found mild and diminishing form of pain in her neck and back.
He said that there was
no physical reason why the plaintiff could not return
to performing semi sedentary work, but said that her pain would limit this
to
20 hours per week.

  

   30. This opinion is broadly consistent with the opinion provided by the
orthopedic surgeon who reported
for the defendant, Dr Cairns. He found
evidence of ongoing soft tissue injury to the neck and back, and impact
injuries to the knees,
which involves ongoing disability. He said that the
plaintiff should, however, be capable of part time employment.

  

   31. There
is no real contest that the plaintiff has, as a result of this
accident, suffered the physical injuries as broadly agreed upon by
Drs Cairns
and Wearne.

  

   32. The real contest in the case is the extent of the ongoing psychological
disability. Both orthopedic
surgeons noted that, in their view, her primary
disability was more emotional than physical. Dr Venness presented a bleak
outlook,
indeed rather more so than Mr. Marshall, who has been the treating
psychologist. The defendant tendered a report from Dr Revai, a
psychologist
who saw the plaintiff on 4 May 1988.

  

   33. He said that she did not display any outward signs of anxiety or
depression,
but he accepted that "it is quite possible for Mrs. Alsps still to
be anxious in a motor vehicle.". Dr Revai expressed criticism
of the lack of
coordinated rehabilitation in the management of the plaintiff's condition, but
did not offer a specific diagnosis
himself, or indeed disputes expressly Dr
Venness's diagnosis.

  

   34. I find that the plaintiff suffered physical injuries in
the motor
vehicle accident as described by Drs Wearne and Cairns, and as a consequence
has an ongoing disability in the knees, and
resolving soft tissue injuries to
her neck and back. This limits her ability to engage in employment, and
further limits her recreational
activities. The plaintiff and her husband
engaged in a range of active pursuits before the accident, including scuba
diving and much
walking and bush walking that are now denied her.

  

   35. I find that the plaintiff has developed in the years since the accident
a genuine psychological injury, originally diagnosed as a chronic pain
syndrome but now more accurately described as a post traumatic
stress
disorder. This condition has got worse in recent years, with the onset from
early 1997 of panic attacks when driving.

  

   36. The difficult issue on the evidence before me is the likely prognosis
for this condition. Taking into account all of the
evidence I am satisfied
that there is a reasonable prognosis for improvement, provided a co-ordinated
rehabilitation programme along
the lines suggested by Dr Flavell in Darwin and
Dr Scott in Canberra is put in place. This seems consistent with Mr. Mashall's
views.
I am not greatly assisted by the two reports from psychiatrists here,
as Dr Venness says this is in effect a permanent totally disabling
condition,
and Dr Revai says he sees no signs of anxiety or depression, and makes no
diagnosis.

  

   37. The principles to be
applied in determining compensation in personal
injuries cases where liability is established have been summarised by Mc Hugh
J in
Nominal Defendant v Gardikiotis [1995] HCA 56;  (1996) 186 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 if he had not sustained the wrong for which he is now
getting his compensation."

   38. In relation to general
damages the plaintiff is to be assessed on the
basis of a genuine trauma injury to her knees leading to an ongoing moderate
disability,
a resolving soft tissue injury to her neck and back, and a post
traumatic stress disorder which has emerged in the years since the
accident,
and reached a peak in the period since early 1997. This is a condition which,
with appropriate rehabilitation and treatment,
I find will subside, leaving
the plaintiff eventually with her physical disability as her main ongoing
problem.

  

   39. Taking
all of this into account, as well as the significant impact this
has had on the plaintiff's recreational and social activities, I
would assess
general damages in the sum of $85,000. I would attribute $55,000 of this to
the past in recognition that the psychological
condition has emerged and
peaked in the period since 1995, but should now resolve with adequate
treatment. This generates interest
of $5,800.00, leading to a total award of
$90,800.00 which I consider to be appropriate in all of the circumstances. At
the hearing
the parties indicated that they would be in a position to agree on
a sum for out of pocket expenses.

  

   40. Out of pocket expenses
were agreed, by letter of the 26 th May 1998 in
the sum of $18,781.48 which I award.

  

   41. A claim for future out of pocket
expenses was particularised with a
weekly claim for physiotherapy at $45 per week. This aspect of the claim was
abandoned, but I
am satisfied that the general amount claimed, of $20,000, is
appropriate in all of the circumstances. In finding that the plaintiff's
emotional and psychological condition is likely to improve, I have assumed
that the plaintiff will be required to incur significant
expenses by way of
rehabilitation and pain management programms, as well as some ongoing
psychological treatment. In the absence
of a significant buffer for such
treatment, the more pessimistic prognosis of Dr Venness would be more
appropriate, which would sound
both in greater general damages and economic
loss compensation. If the defendant is to succeed in its argument that there
is a reasonable
prognosis for recovery, it seems to me that it must accept a
substantial award for future out of pocket expenses which will be necessary
to
achieve that improvement.

  

   42. A Griffiths v Kerkemeyer claim which had been particularised was not
pressed at the hearing.

  

   43. The plaintiff's claim in relation to economic loss was presented both
as a case of a loss of a chance to succeed with
the marketing and promotion of
the controller programme, and as an arithmetic claim for past and future loss
based on the plaintiff's
economic capacity to earn, as an analyst programmer,
the sum of $45,000 per annum at the time of the accident. The plaintiff
presented
an economic loss analysis and particularised a claim, based on this
loss and involving two alternative scenarios for the future-
one of a total
inability to work, and the other of an ability to work for 20 hours per week.

  

   44. The defendant acknowledged
that the plaintiff ought to receive an award
in relation to past and future economic loss, but argued that the evidence did
not support
the analysis presented by the plaintiff. The evidence establishes
that, apart from two very brief periods of some weeks, the plaintiff
last
worked for income in 1987 as a company secretary. She then left the workforce
due to repetitive strain injury, and eventually
received a settlement on an
employment claim. She had no formal qualifications in computing, other than
the successful completion
of about half of the units required for an associate
diploma in TAFE. She had never developed a history of successfully bidding for
computer consultancy services on the open market, or obtaining employment in
that field. She was unable to show a record of earnings
in this field.

  

   45. The plaintiff was confident that her skills would make her marketable,
and her husband said that she would
do well in such a market, but there is no
independent evidence to support this, and no record of such employment. I am
not satisfied,
on the evidence before me, that the plaintiff's loss should be
calculated on the basis that at the time of the accident she was capable
of
finding ongoing employment as a computer analyst programmer with earnings of
$45,000 per year.

  

   46. The plaintiff and her
husband had developed, to market, a computer
application, which had achieved about a dozen sales at about $100 per
application, with
some add on sales potential. But the plaintiff and her
husband acknowledged that the emergence of windows based systems meant that
the product would have to undergo substantial redevelopment. They both gave
evidence that they nevertheless believed the product
to be potentially very
lucrative and successful, but no evidence was presented from an independent
expert in the field of computing
as to the economic potential of this
potential application in the early and mid 1990's. It is a matter of common
knowledge that the
computer industry is both highly competitive, global in its
marketplace, and constantly improving and changing. I am not satisfied
that
the evidence in the matter allows me to proceed to calculate economic loss
with any precision for the loss of this opportunity.
I am not satisfied that
the physical injury sustained by the plaintiff was the sole reason why
development of a windows based version
of the program was abandoned in late
1993.

  

   47. Nevertheless, I am satisfied that the plaintiff has suffered a genuine
past
and ongoing loss of economic capacity. The plaintiff had been utilising
this economic capacity in the development of the controller
application, and
had been undertaking studies which could well have been expected to equip her
for full time employment in the computer
field on the open market in due
course. The chance that the controller application may have proved to be as
successful as the plaintiff
had hoped must be a factor in assessing the
plaintiff's economic loss in accordance with well established principles (
generally,
Luntz, Assessment of Damages for Personal Injury and Death, third
ed, Butterworths,1990 para 1.9.5)

  

   48. The plaintiff suffered
as a consequence of the accident physical
incapacity, which would have restricted her employment to part time
employment. In recent
years, a psychological condition has developed as a
consequence of the accident which I am satisfied would have prevented the
plaintiff
from working at all, but which should, after some years of
appropriate treatment, subside, leaving the plaintiff with an ability
to again
engage in part time employment in her chosen field. This must sound in a
substantial award by way of a discretionary buffer
for both past and future
economic loss. I would award the sum of $150,000 in respect of the plaintiff's
economic loss both in respect
to past and future loss.

  

   49. This amounts to a global award of $279,581.48 which I consider to be
appropriate in all of the
circumstances.