Jana Mamukic v William James Sleeman [1998] ACTSC 258 (10 July 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident -
Aggravation of a prior neck and back injury which had previously settled
-
Whether the necessity to undergo a hysterectomy was causally linked to the
accident - No issue of principle.

  

  

   CANBERRA,
15-16 June 1998 (hearing), 10 July 1998 (decision)

   #DATE 10:7:1998

  

   Counsel for the Plaintiff: Mr R Crowe

   Instructing
Solicitors: Pappas, J - Attorney

   Counsel for the Defendant: Ms C E Adamson

   Instructing Solicitors: Abbott Tout Harper Blain

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $66,522.35.

  

   2. The defendant
pay the plaintiff's costs.

  

  

   MASTER T. CONNOLLY

  

   1. This is a claim for damages for personal injuries arising from
a motor
vehicle accident which occurred on 25 January 1995 at the intersection of
Uriarra Road and Federal Avenue Queanbeyan. The
plaintiff was the driver of a
vehicle which was stationary and was hit from the rear by the defendant.
Liability was admitted and
the matter proceeded by way of an assessment of
damages only.

  

   2. The plaintiff was born on 25 May 1932, and so was 62 at
the date of the
accident.

  

   She was then working as a cleaner, and claims economic loss by way of lost
wages to the date of
her expected retirement at age 65. She had previously
suffered neck injury as a result of a motor vehicle accident, and in 1982 had
a fusion performed at the C5/6 and C6/7 levels. This accident resulted in a
claim for damages, which was settled out of court. She
returned to work in
1984, but in September 1985 suffered a further motor vehicle accident which
resulted in whiplash injuries. This
matter was also the subject of a claim,
which was again settled out of court. The plaintiff says that the first claim
resulted in
a settlement of about $70,000, and the second claim was settled
for about $18,000 inclusive of costs. After a period off work she
returned to
cleaning work on a full time basis in May 1991, and worked throughout the
period up to the accident of 25 January 1995.

  

   3. The plaintiff has not worked since the accident.

  

   4. The plaintiff was born in Yugoslavia in 1932. She had no formal
schooling, and worked on a family farm and later on a State owned farm. She
came to Australia in 1970, and has worked as a cleaner
in this country. She
was married in 1969, and has had five children. She has limited English, and
gave evidence through an interpreter.

  

   5. Numerous doctors who have examined the plaintiff, both for the plaintiff
and the defendant, have noted that the plaintiff
presented in a distressed
state and in extreme misery. She appeared distressed in the witness box, and
was indicating constant pain.
She said that since the accident she was always
extremely limited in movement, and could not bend down. She said that she
could not
remain sitting still for more than 15 minutes and would have to move
to relieve the pain. The defendant produced and tendered video
film taken in
January 1996 which showed the plaintiff bending over sharply to brush up
something with a dustpan and brush, and then
taking out a carpet or mat on to
the porch of her home and beating the mat. The plaintiff said that this
incident had occurred after
she had fallen and spilt water on the mat due to
her pain. I found this most unconvincing. The video material also showed the
plaintiff
going shopping at Woden Shopping Centre, with no apparent difficulty
in walking, and then sitting and apparently enjoying a long
lunch with her
daughter and a grandchild, with no movement or discomfort apparent.

  

   6. The plaintiff claimed that she was
also suffering a depressive illness
as a result of her motor vehicle accident. She gave a history to Dr Veness of
no psychological
difficulty prior to the accident, and he provided an opinion
to the plaintiff's solicitor which concluded that the plaintiff had
an anxiety
state and a depressive illness, both of which he attributed to the motor
vehicle accident. He agreed with a history which
was put to him by counsel for
the defendant which was that

  

  

   "Prior to the accident Mrs Mamukic cared for her home and
garden diligently
and she had worked conscientiously as a cleaner for some years. Her continuing
disability since the accident has
caused her difficulty with housework and she
has been unable to work or garden. As those activities were what her life were
centred
about, the whole meaning of her life has changed and she has felt very
upset and frustrated and has been tearful at times because
of her prolonged
invalidity and the quality of her life has been drastically reduced by the
accident."

   7. Dr Veness agreed that
this was consistent with the history he had taken
in February 1997. The passage in fact came from a report, which was tendered
by
the defendant, prepared in August 1982 by a Dr Ferguson in support of the
plaintiff's claim for compensation following the 1979 accident.

  

   8. The plaintiff also tendered two reports from Dr Robbie, a consultant
psychologist, who examined the plaintiff in 1989
and 1987, which detailed
extensive complaints of psychological difficulties which the plaintiff was
then claiming as a result of
the 1985 motor vehicle accident.

  

   9. Given my doubts about the plaintiff's credit as a witness, the absence
of any prior history
of psychiatric problems given by the plaintiff to Dr
Veness is difficult to reconcile with the extensive claims set out in the
reports
of Dr Robbie, which pre date the accident. The history of
psychological distress which Dr Veness agreed fitted his history in 1997
was
in fact taken in 1982.

  

   10. The plaintiff also failed to tell Dr Veness that her husband had died
of cancer in 1996, and
that a son had also passed away that year. He agreed in
his oral evidence that this information would have been relevant to his
diagnosis
of depression, but he said that it would not be relevant to the
diagnosis of anxiety states.

  

   11. Dr Scott, an occupational
physician, examined the plaintiff and
reported to her solicitors in March 1998. He concluded that the plaintiff had
a post traumatic
reactive depression, which he said was further aggravated by
the recent death of her husband and son. He agreed in cross examination
that
he was dependent on history given to him in forming this diagnosis, and I note
that he had no history of prior diagnoses or
claims of depression or
psychological difficulties.

  

   12. I am not satisfied on all of the evidence that any psychological
difficulties from which the plaintiff now claims to suffer can be attributed
to the 1995 motor vehicle accident.

  

   13. It is
difficult in the medical material in this case to reach a precise
definition of the plaintiff's neck and back injuries. Dr Scott
said that in
his view the plaintiff suffered general soft tissue injuries in the accident
and that

  

  

   "She now has multiple
symptoms indicative of aggravation and/or
exacerbation of any pre existent asymptomatic degenerative disease."

   14. Her general
practitioner, Dr Niewiadomski, said in a report of March
1998 that the plaintiff suffered

  

  

   "...severe aggravation of pre
existing cervical and lumbar spondylosis."

   15. The plaintiff has been examined by two doctors for the defendant. Dr
Andrea formed
the view that the plaintiff may have suffered

  

  

   "...some aggravation of the previously existing neck and back problems",

   but he expressed the view in March 1998 that this was

  

  

   "...some temporary aggravation of her already existing disabilities
and the
effects of this accident probably wore off within a month or two."

   16. Dr Andrews reported in March 1998 that

  

 


   "This lady has fairly widespread symptoms and signs for which no specific
explanation can be found. I can only assume that there
is a fair amount of
amplification of any underlying minor problems that she may have had from the
motor vehicle accident on 25.1.95."

   17. I am satisfied that the motor vehicle accident resulted in widespread
soft tissue injuries and aggravated the pre existing
and previously painful
neck condition.

  

   18. The plaintiff underwent a hysterectomy in May 1995. Although this was
not particularised,
the plaintiff opened the case with the claim that seat
belt pressure in the accident caused the need for a hysterectomy, and I
indicated
that leave would be given to allow this matter to be pleaded. The
defendant had been aware of this issue, and had been in a position
to meet the
claim.

  

   19. The medical evidence in relation to this aspect of the claim was
limited. Dr Keiller, who reported
mainly on the neck pain aspects of the
claim, stated in his report to the plaintiff's solicitor

  

  

   "Soon after the incident,
she had urinary problems. This was followed by a
hysterectomy which, from her description, suggests that it was for a prolapse.
It
is unlikely that such a condition would follow this type of accident, but
the opinion of a gynecologist would be appropriate. I will
comment no further
on this aspect of her problems as it is outside my area of expertise."

   20. The plaintiff acknowledged that
Dr Bates performed this procedure. No
report from Dr Bates was tendered, nor was a report from any other specialist
in this field,
despite Dr Keiller's recommendation in June 1996. Her general
practitioner, Dr Niewiadomski, said in a report of January 1996 that

  

  

   "...in my opinion, it is a result of the belt injury to her abdomen which
caused a high pressure to low abdomen and prolapse
to her uterus."

   21. In cross examination Dr Niewiadomski agreed that a prolapse of the
uterus was "likely" for a woman of the
plaintiff's age with a history of nine
pregnancies, including one case of twins. He maintained, however, that it
could have been
brought on by the seat belt pressure. In re examination, Dr
Niewiadomski said in relation to the question of the link between the
accident
and the prolapse of the uterus

  

  

   "It could be. I can't swear that it was the reason of the accident, but
could
be according to my life experience."

   22. Dr Andrea, who reported for the defendant, said that a prolapse of the
uterus could
have been aggravated by the accident, but said that a better
opinion could be provided by Dr Bates.

  

   23. Counsel for the plaintiff
argued that if I was concerned at the
apparent lack of strong medical evidence to link the conditions I could find
assistance in
the decision of the High Court in Adelaide Stevedoring Company v
Forst [1940] HCA 45;  (1940) 64 CLR 538 in which the Court held that, where there was

  

  

   "...an abundance of medical evidence from witnesses
whose attainments and
evidence neither were nor could be challenged"

   but no clear opinion emerged, a court is entitled to take
into account
"common sense" and look to the "sequence of events" to prefer one view to
another on the issue of causation. The difficulty
with the present case, it
seems to me, is that there is not such an abundance of medical opinion, and
that the case for the plaintiff
rests on a cautious view of a general
practitioner, in the absence of an opinion from the relevant specialist who
performed the procedure
claimed now to be linked to the motor vehicle
accident.

  

   24. I am not satisfied on the evidence before me that it is more
likely
than not that the accident was the cause of the prolapse to the plaintiff's
uterus and subsequent hysterectomy. The best that
the evidence before me
establishes is that such a connection is a possibility, not a probability.
Where such a matter is claimed
the absence of a specialist report will not
assist a plaintiff's case, but even in the absence of such adverse inference
as may be
drawn from the absence of such a report, the evidence does not
satisfy the standard of proof required for a civil claim.

  

  
25. 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'."

   26. In this
case I must assess the plaintiff's claim to general damages on
the basis that the accident aggravated and again made symptomatic
neck and
back pain which had previously been symptomatic but which had then settled. I
am not satisfied that the plaintiff's claim
of constant and ongoing misery and
gross restrictions in all activities of daily living are truthful. However, I
am satisfied that
the plaintiff, despite her pre 1995 claims, had been able to
engage in heavy cleaning work for some years up to the 1995 accident,
but that
her soft tissue injuries prevented a return to these duties after the 1995
accident. In relation to general damages, I am
satisfied that the 1995
accident made her condition more painful and that there are still ongoing
symptoms. I award general damages
in the sum of $30,000, of which $20,000 is
attributable to past loss, generating interest of $1,380 making a total
general damages
award of $31,380.

  

   27. In relation to economic loss, I note that the claim is limited to a
closed period for past loss, from
the time of the accident up to the time the
plaintiff would in any event have retired. Counsel for the defendant argued
that this
claim should be limited if I found that the hysterectomy was not
accident related, as such an incident would preclude the plaintiff
from heavy
work. I have found that this condition was not accident related, but there is
no evidence before me to establish that
the plaintiff would be precluded from
working again as a cleaner after an initial period of convalescence following
the operation.
Counsel for the plaintiff accepted that, if I was to find, as I
do, that the prolapse uterus and hysterectomy was not connected to
the
accident, there should be some discount to the economic loss claim, but said
that

  

  

   "...any interference with her ability
to work would have been a period of
six months or so."

   This, it seems to me, is the correct approach to take here.

  

   28.
Counsel for the defendant also argued that the plaintiff would have
probably left work in any event in 1996 when her husband was
diagnosed with
cancer. The plaintiff denied this, and her counsel pointed out that as she was
then in effect the breadwinner of the
family, it is not appropriate for me to
regard this as a discounting factor. I think that the plaintiff's submission
is the correct
approach.

  

   29. The plaintiff's claim for economic loss is for the sum of $38,096.77
for the period of some 2 years and 5 months
to 25 May 1997 together with a sum
of $2,740.22 for superannuation payments. Accepting that the plaintiff may
have been off work
due to the hysterectomy for a period of about six months,
it seems to me that a discount factor in the order of 20% is appropriate
to
reflect this possibility, which is within the range urged by counsel for the
plaintiff. A sum of $33,000 appears to be an appropriate
sum by way of a
global award for past economic loss including lost superannuation and
inclusive of interest.

  

   30. The plaintiff
has made a claim for Griffiths v Kerkemeyer damages from
the date of the accident and continuing. The plaintiff's daughter said that
she provided considerable assistance to her mother after the accident, but
agreed in cross examination that the hysterectomy was
a major factor in the
plaintiff's need for assistance, and that the need increased as the
plaintiff's husband was ill. Friends of
the plaintiff, Mr and Mrs Abazovic,
gave evidence of assistance that they provided in the household, but this
assistance started
when the plaintiff's husband fell ill, and I am not
satisfied that this evidence establishes that the motor vehicle accident was
productive of a need for domestic assistance within the principles of
Griffiths v Kerkemeyer .

  

   31. I note that the medical
evidence tendered in relation to the previous
motor vehicle accident claims also records that the plaintiff said that her
daughter
then had to assume all of the burden of household duties. This,
together with the video material which appeared to show a picture
of a woman
of the plaintiff's stated age doing tasks around the house and going shopping
with no apparent difficulty, further confirm
me in this view. I note that Dr
Scott, on the basis of the history he had obtained, recommended that the
plaintiff have ongoing assistance
in the house, but he agreed that he would in
this assessment have been dependent on the plaintiff's history, and I am not
satisfied
that she has accurately set out her level of actual disability.

  

   32. Out of pocket expenses were agreed in the sum of $1,142.35,
and I award
this sum. It does not seem to be possible or appropriate to try to separate
out aspects of these expenses which may relate
to the plaintiff's claimed
psychological conditions. Out of pocket expenses for the future are also
claimed. Given the findings I
have made this must be limited to analgesics and
occasional visits to a general practitioner, and I make a global award for
future
out of pocket expenses of $1,000.

  

   33. This amounts to an award of $66,522.35, which I consider to be
appropriate in all of
the circumstances.