Linda Maree McNally v Commonwealth of Australia [1998] ACTSC 262 (10 July 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident - Disc
injury to neck - Aggravation to psychological condition - No issue
of
principle.

  

  

   CANBERRA, 17-18 June 1998 (hearing), 10 July 1998 (decision)

   #DATE 10:7:1998

  

   Counsel for the
Plaintiff: Mr G Stretton

   Instructing Solicitors: Ken Johnston Bedford & Co

   Counsel for the Defendant: Mr R Crowe

  
Instructing Solicitors: Australian Government Solicitor

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the
plaintiff in the sum of $128,583.78.

  

   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 9 February 1995 in Perry
Drive, Chapman, in
the Australian Capital Territory. The plaintiff was driving home from work
travelling in an easterly direction
along Perry Drive, and was stationary at
the intersection with Doyle Terrace, intending to make a right hand turn. She
was struck
from behind by an army vehicle. Liability was not in issue and the
matter proceeded before me by way of an assessment of damages
only.

  

   2. The plaintiff was born in Cooma, New South Wales, in March 1954. She
completed her education to the NSW School Certificate
level, and worked for a
bank from 1970-1978. She married in 1970, and ceased work before the birth of
her first child, a son, in
1979. Another child, a daughter, followed in 1980.
The plaintiff re entered the workforce in 1985 as a casual employee at the
Woden
TAFE college, and completed a two year typing course while working part
time. In 1992 she obtained a secretarial position in the
Department of
Industrial Relations, and in April 1994 she joined the Department of Defence,
and she remained with that department
until the accident. At the time of the
accident she was working as an Administrative Services Officer Class 3 as a
secretary and
personal assistant to the two senior officers at the Australian
College of Defence and Strategic Studies at Weston Creek in the Australian
Capital Territory.

  

   3. The plaintiff described the impact as very severe, and photographs
tendered of her vehicle confirm
that this was an impact of some severity. She
says that her vehicle was pushed forward about ten yards by the force of the
impact,
and was extensively damaged. The seat of the vehicle broke. She was
assisted from the vehicle, and a nearby resident assisted her
and allowed her
to ring her husband, who attended some time later and took the plaintiff to a
medical centre to see a doctor.

 


   4. It is the plaintiff's case that the motor vehicle accident resulted in
disc injury to her neck and lower back, and that the
ongoing pain has led to
symptoms of anxiety and depression such that her ability to work full time is
permanently impaired. The defendant
admits responsibility for the neck
condition, but disputes the relationship between any low back problems and the
accident, and says
that the neck pain can only be said to have aggravated a
previously symptomatic psychiatric condition.

  

   5. Dr Leung reported
that the plaintiff attended that day and examination
revealed bruising of the left temple, with marked spasms of neck muscles and
a
global restriction of cervical movement. He made a diagnosis of contusion to
the forehead and whiplash type injury. Plain x-rays
revealed slight loss of
disc height at C5/6 and C6/7. The plaintiff continued to attend Dr Leung
during February, and was referred
to physiotherapy. She attended for
physiotherapy on 21 February, and complained of gradually worsening neck pain
and headaches. Treatment
continued through to the end of April.

  

   6. The plaintiff was absent from work due to the injury for about two
weeks, but thereafter
returned to full time duties, taking occasional time off
to attend physiotherapy.

  

   7. The plaintiff consulted a new general
practitioner, Dr Cleary, in June
1995. She said that she wanted a doctor who would attend on her regularly,
rather than relying on
a medical centre, where doctors change. She complained
to him of ongoing vertigo, headaches and neck pain, and also, according to
his
report of 29 November 1995,

  

  

   "Mid back pain after sitting for prolonged periods."

   8. He referred her to Dr Andrews,
a specialist neurologist, and he
confirmed that the plaintiff suffered a prolapsed disc at C6/7 as a result of
the accident. He noted
in his report to the plaintiff's solicitors of 21
August 1995 that this protrusion was not producing a lot of problems, but that
further trauma could make it symptomatic, and could result in the need for
surgery in the form of a fusion operation.

  

   9.
In cross examination Dr Andrews said that further scanning done earlier
this year had disclosed a result that he said was most unusual
and had left
him very surprised. He found that the disc prolapse in the cervical spine had
healed itself. He said that the disc is
still a problem and there is still
presumably discogenic pain, but

  

  

   "...it's certainly - the natural history of it has
been very favourable.
It's done much better than I anticipated in the beginning."

   He agreed that it would now be unlikely that
she would require operative
treatment for her neck.

  

   10. The defendant acknowledges that the impact was severe, and accepts
that
the neck injury was a result of the accident. It denies, however, that low
back problems can be attributed to the motor vehicle
accident. The plaintiff
says that she first noticed problems in the lower back area about two months
after the accident. Dr Corry,
an occupational physician, reported in May 1996
that when he saw the plaintiff on 29 August 1995

  

  

   "...her most dominant
problem was her low back pain."

   11. The exact nature of this pain was only revealed in a CT scan done in
February 1996, which
revealed a large left lateral disc protrusion at L5/S1.
In a report to the plaintiff's solicitors of June 1998 Dr Andrews noted that
the impact caused the seat back to collapse and said

  

  

   "It was not, however, until two months later that she developed
the
significant back pain. This is often the case with a ruptured disc, that there
can be a delay in the appearance of symptoms."

   12. In his evidence Dr Andrews confirmed his view that, given a delay of
two months between the onset of back pain and the accident,
the disc
protrusion in the lumbar spine was probably caused by the accident. He said in
cross examination that while most disc protrusion
in the neck will produce
symptoms within days, symptoms in the lumbar region tend to be more delayed.
But he agreed that symptoms
will usually develop within one to two months. He
said

  

  

   "Yes, as a rule on to two months is the timeframe. I usually find
that with
a lumbar disc it is a gradual build up and symptoms over a period of time."

   He agreed that the longer the gap between
onset of symptoms and the trauma,
the less likely the link. It was put to him that

  

  

   "If, contrary to the history that
you've got, that there was symptoms
within, I think, two months of the accident, if, in fact, there are no
symptoms until five months
after the accident would it make it possible but
not probable that there was a causal link?"

   He replied

  

  

   "I would
agree with that, yes".

   13. Dr Corry in a report to the plaintiff's solicitors of 19 September 1997
attributed the plaintiff's
neck pain, and a psychological condition, to the
accident, but said

  

  

   "The low back pain, which has developed more recently,
I do not directly
relate to the effects of the motor vehicle accident."

   14. Dr Corry noted in his evidence that he had taken
a history of low back
complaint on his initial consultation in August 1995. He said, in reference to
his notes, that low back pain

  

  

   "...came up as an issue"

   when a Ms Lee was doing an occupational therapist assessment of the
plaintiff's work station.
This occurred on 23 August 1995, some days before
the plaintiff first saw Dr Corry.

  

   15. In cross examination Dr Corry agreed
with Dr Andrews' view that the
longer the distance between trauma and the onset of symptoms the less likely
is the link between the
events.

  

   16. The first recorded complaint of lumbar pain is the reference in Dr
Corry's report. On the basis of this information
he formed the view, as a
specialist reporting to the plaintiff, that the back pain which he saw as
coming on around August 1995 was
not related to the motor vehicle accident. Dr
Andrew's took a history of pain in the lumbar region coming on within two
months, and
so attributed it to the accident, but said that if the gap was
five months then it would be possible but not probable that the accident
was
the cause of the low back condition.

  

   17. The plaintiff says that she experienced low back pain within two months
of the
accident. She seeks to draw some support by showing that a lumbar roll
was purchased following her initial physiotherapy appointment.
However, the
report from the physiotherapist states that this was for posture, and makes no
reference to any complaint of lumbar
pain, recording treatment for neck
problems extending over a two month period to the end of April 1994, which is
the period within
which the plaintiff says she experienced neck pain. The
absence of a complaint of low back pain is difficult to explain if the
plaintiff
was indeed experiencing low back pain in the two month period of
ongoing physiotherapy.

  

   18. The plaintiff first saw Dr Cleary
in June 1995. While his report of
November 1995 states that her symptoms "since the accident" have included mid
back pain, his clinical
notes show that no complaint of low back pain was made
at the initial appointment. The plaintiff agreed in cross examination that
she
did not complain of low back pain in June because, she said,

  

  

   "...the lower back pain comes and goes, it wasn't as
frequent as the neck."

   19. I am not satisfied as to the plaintiff's version of events on this
point. The plaintiff acknowledged
that she did not disclose to a range of
doctors psychological counselling that she had been receiving before the
accident when complaining
of psychological symptoms that she put down to the
accident. She provided a very complete list of symptoms to Dr Cleary at her
first
interview, which did not include low back pain. In her cross examination
on this point she varied in her claims as to the initial
onset of the low back
pain, at one stage putting it as early as a Christening that she attended with
her husband in late February,
and then returning to her version given in
evidence in chief, that the onset of the low back pain was at about two months
after the
accident, which would put it in early April. She was unable to be
more certain than this in cross examination, but maintained that
it was
happening before August, and she thinks before June.

  

   20. Given the absence of complaint to the treating physiotherapist,
and the
absence of any complaint of low back pain in a careful list of complaints to
Dr Cleary, at a time when the plaintiff acknowledged
that she had determined
that she would be bringing a claim for compensation for injuries suffered in
the accident, I am not satisfied
that low back pain emerged as a problem
before about August 1995. On the evidence of Dr Andrews and Dr Corry, this
would mean that
it would be possible but not probable that the accident was
the cause of the low back problem, and I accordingly find, as urged by
the
defendant, that I am not satisfied to the requisite standard of proof that the
plaintiff's low back pain is related to the accident.

  

   21. The plaintiff complains of anxiety and depression, and has been
diagnosed by a clinical psychologist as suffering anxiety
and depression as a
consequence of her perceived unremitting pain. Dr Pell, a neurosurgeon, has
diagnosed the plaintiff as suffering
from chronic pain syndrome with
depression. The plaintiff gave no history of any prior depression or
psychological difficulty.


 

   22. The plaintiff had in fact been having major problems with a conflict
with a co worker at the Weston Creek Defence College.
This conflict resulted
in public service grievance procedures, and as a consequence the plaintiff,
who had requested to see a "counsellor",
received a series of appointments
with a Ms Bolitho, a psychologist, starting in September 1994. The plaintiff
was cross examined
at length over comments recorded in the notes of these
consultations, which were tendered by the defendant. I am satisfied from this
material that the plaintiff was at this time under a great deal of stress from
a conflict at work, and also difficulties in her home
life, which were set out
at some length in the notes.

  

   23. In the histories given to various doctors the plaintiff has painted
a
picture of the accident as the incident provoking stresses at home and work.
In her cross examination she said that she told Dr
Cleary that she had been
depressed since the accident, but did not tell him about her consultations
with the psychologist Ms Bolitho
before the accident because

  

  

   "I didn't think it was necessary".

   24. Nor did she tell any other medical practitioner.
She was asked whether
she had told her lawyers of these counselling sessions before the day of the
hearing, when Ms Bolitho's notes
were produced in answer to a late subpoena.
She said that

  

  

   "I did mention - I can't recall."

   25. Counsel for the defendant
argued that, as all of the medical witnesses
who referred to the plaintiff developing anxiety, depression or chronic pain
syndrome
since the accident had relied on her history of no psychological
difficulties before the accident it would be inappropriate to rely
on this
evidence to find that whatever psychological condition the plaintiff is
presently suffering from should be laid at the foot
of the accident. I find
much force in this submission.

  

   26. In this case there was no report from a specialist psychiatrist
concerning the ongoing psychological difficulties. I note that some of the
additional stressors which were taken into account by
Ms Liddle, a clinical
psychologist, were also referred to in Ms Bolitho's notes as stress factors
before the accident. In relation
to the difficulties with her teenage
children, the plaintiff acknowledged that these had resolved, and her children
now both had
satisfying careers.

  

   27. Dr Corry, in his report of September 1997, noted that

  

  

   "Increasing symptoms of anxiety
and depression developed, I believe in
large part, related to work difficulties and related circumstances."

   Dr Corry did not
have any history of complaints relating to work and home
problems before the accident.

  

   28. The plaintiff's record of attendance
at work shows that, after a period
of some two weeks off work immediately after the accident the plaintiff
returned to full time
duties with only the odd hour off for treatment. In
September 1995, however, she says that she "lost it" in a conflict at work
with
the other public servant with whom she had been having difficulties since
at least September 1994. From that point, her absences
from work grew longer
and more regular. The plaintiff has had a range of work placements to attempt
to resume work, but these have
been unsuccessful, and it is the view of her
general practitioner and Dr Corry that, due to her neck, back and
psychological condition,
she is only able to work about 20 hours per week. It
is her claim that this will be ongoing.

  

   29. I am not satisfied, on all
of the evidence, that the plaintiff's
psychological condition is attributable entirely to the accident. The
defendant urged me to
find that the accident and related pain aggravated a pre
existing psychological condition of stress and depression. On all of the
evidence before me, I think that this is the most appropriate finding.

  

   30. 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'."

   31. In relation to general damages, the plaintiff is
to be assessed on the
basis of a person who has as a result of a motor vehicle accident of some
considerable force suffered a disc
injury in her neck, which has been
productive of ongoing pain. I must take into account Dr Andrews' evidence that
the disc injury
appears to have healed, but also his warning that it remains
vulnerable and can continue to produce discogenic pain. I must also
take into
account the aggravation that this disc injury and associated pain has had to
her psychological condition. Taking all of
this into account, I assess general
damages in the sum of $38,000. I would attribute $25,000 of this to past loss,
generating interest
of $1,700, leading to a total award of $39,700.

  

   32. In relation to economic loss, the plaintiff has been in receipt of
payments
by Comcare as the accident occurred on her way home from work, so a
precise figure of past loss, of $23,269.70 was available to me.
Counsel for
the defendant submitted that, if I was to find that the plaintiff's low back
condition was not attributable to the accident,
and that the plaintiff's
psychological condition was aggravated by the accident, but not entirely
attributable to it, an appropriate
course would be to apply a discount to this
sum on the principle of Malec v J C Hutton Pty Ltd  [1990] HCA 20; (1990) 169 CLR 638, which
he submitted should be 20%. In all of the circumstances this seems
appropriate, and I award for past economic
loss the sum of $18,615.20. As this
loss was in fact being recouped by way of regular payments from Comcare, no
award of interest
is appropriate.

  

   33. The plaintiff makes a claim for an ongoing wage loss based on the
ability to work only for 20 hours a
week. It must follow from my findings that
the plaintiff's low back condition is not accident related, and that the
plaintiff's psychological
condition is not entirely accident related that I do
not accept that the plaintiff has suffered such an ongoing loss. It seems to
me on all of the evidence that this is more appropriately a case for a buffer,
taking into account the presence of a genuine neck
injury, which despite the
apparent healing of the disc protrusion, must impact on the plaintiff's
ability to compete in the open
market.

  

   34. Dr Corry said in cross examination that with the physical disabilities
that he had noted on his last visit, and
assuming that her psychological
situation improved, there was some probability that she would get back to
normal clerical type work.
I must, in assessing this, take into account that
the back condition is not a factor in her accident related disability, and
that
the psychological condition is not entirely accident related.

  

   35. Her treating general practitioner in May 1998 assessed
her as fit only
for 20 hours work a week, but noted in his report that

  

  

   "...with regard to the future, it is hoped to
gradually increase Lynda's
hours."

   36. Dr Pell reported in November 1997 that she was unable to return to full
time employment,
but said that in his view

  

  

   "The onset of neck pain and arm pain, working at the keyboard is more
related to the depressive
illness than her neck injury."

   He recommended a pain clinic program with an emphasis on behavioural
counselling, and said this

  

  

   "...may help give her some relief and she would be able to increase her
work hours accordingly."

   37. Taking all of
this into account, a buffer for future economic loss of
$45,000 seems appropriate in all of the circumstances.

  

   38. Out of
pocket expenses were evidenced by Comcare at $16,268.58. These
include regular weekly massage sessions at $50, and of course relate
to her
entire range of presenting conditions of neck, back and psychological
conditions. Counsel for the defendant conceded that
he was not able to
distinguish which expenses were unrelated to what he conceded were her
accident related conditions, and he invited
me to make a small discount on
this overall figure. I am not satisfied that this is a safe course, and while
it may amount to erring
on the side of generosity, I would award the full sum
for out of pocket expenses of $16,268.58.

  

   39. The claim for future
out of pocket expenses is for continuing treatment
at the rate of $93.39 per week, to cover massage weekly, a general
practitioner
visit monthly and medication. This figure has been derived by
dividing the actual paid out of pocket expenses by the period of payment.
This
is in my view not proof of an actual need, particularly where an insurer is
making the actual payments to the date of trial.
The only evidence in support
of the massage claim is the report of her general practitioner of May 1998
which noted that continuation
of remedial massage was recommended.

  

   40. This falls short of evidence to justify an award for lifetime weekly
massage, and
I am not satisfied, on all of the evidence, that such a claim can
be made out. This seems to be a case where a modest buffer for
future medical
expenses is more appropriate. In making such a discretionary decision I must
take into account all of the evidence,
both relating to her neck condition and
psychological condition to the extent that this is accident related. I note in
particular
Dr Pell's recommendations for a future pain clinic program, which
he said was important in the context of her return to work. I award
the sum of
$7,000 for future out of pocket expenses.

  

   41. There is a claim for damages under the principle of Griffiths v
Kerkemeyer . The plaintiff employed a housekeeper, Mrs Macsic, to perform
heavier cleaning duties, and has paid her at about $30
per week. This claim
was in submissions put at a claim for three years at $30 per week, being a
claim for $4,680.

  

   42. The
plaintiff acknowledged that she had employed a housekeeper to do
the heavier cleaning duties before the accident, but discontinued
this
practice in 1994 due to a personality difference with her cleaner. She
acknowledged in cross examination that before the accident
she had discussed
in her counselling with Ms Bolitho that she didn't want to do housework any
more. The notes then say

  

  


  "New rule: Lynda doesn't do the housework."

   43. I am not satisfied that the plaintiff's accident related injuries have
created
an ongoing need for housekeeping services. I note that the plaintiff
had previously employed a person to perform these duties, that
she discussed
no longer doing these duties with her psychologist in November 1994, and also
that, throughout the time when she says
she needed to employ assistance
because of the accident, she had two teenage children living with her, who she
said did not assist.

  

   44. The claim for Griffiths v Kerkemeyer damages was particularised only as
a claim for the past, but counsel for the plaintiff
opened with a claim for
the future, and as this was an issue that was in any event going to turn on
the evidence rather than the
pleadings, I consented to an amendment of the
pleadings to make it clear that the claim was for the future as well as the
past.

  

   45. Counsel for the defendant submitted that, taking into account all of
the factors I have referred to above, there should
be a discounted award for
the past and no award for the future. While I may have been minded to adopt a
stricter view, I am satisfied
on the basis of all of the evidence and
submissions by counsel that the plaintiff has had some need of assistance in
the period after
the accident, and I would award a discretionary sum of $2,000
to cover this. I am not satisfied that the accident has been productive
of any
need for future paid domestic assistance, or gratuitous assistance that goes
beyond the principles laid down in Van Gervan
v Fenton [1992] HCA 54;  (1992) 175 CLR 327.

  

   46. This amounts to an award of $128,583.78, which I consider to be
appropriate in all of the circumstances.