Bayley v Hertz Truck Rentals [1998] ACTSC 67 (17 July 1998)

Last Updated: 13 October 1999

Bayley v Hertz Truck Rentals [1998] SCACT 67 (17 July 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury to neck and low back - Ongoing pain in low back - Bilateral carpal tunnel syndrome requiring operative intervention - No issue of principle.

No. SC 949 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 17 July 1998

IN THE SUPREME COURT OF THE )

) No. SC 949 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DEBORAH BAYLEY

Plaintiff

AND: HERTZ TRUCK RENTALS

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 17 July 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $87,208.75.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 18 September 1993 near the intersection of McInnes St and Hindmarsh Avenue at Weston in the Australian Capital Territory. Liability was in issue at the commencement of the hearing, and contributory negligence was pleaded.

2. The accident occurred on a Saturday morning as the plaintiff was driving her 9 year old daughter and a friend to a children's birthday party. She acknowledges that she was relying on the children for directions, and says that she proceeded along Hindmarsh Drive in an easterly direction. To get to the party she should have turned left into McInnes Street, but she missed the turn, and as she passed the intersection her daughter told her that she had gone past. She says that she slowed the vehicle and looked behind, and that she then saw the rear window "explode" as her vehicle was struck by a vehicle driven by the defendant.

3. The plaintiff said that the defendant accused her of stopping her vehicle and reversing it. She denied this, and offered to show that the automatic transmission shift in her car was still in drive. The pleadings alleged that the contributory negligence involved the plaintiff reversing her vehicle. No evidence was led on this point, and indeed no evidence was tendered to contradict the plaintiff's version of events, which were supported by her daughter, whose recollection was that the car was still moving forward when the accident occurred. I am satisfied on the evidence before me that the accident was caused by the negligence of the defendant. There is no evidence before me to justify a finding of any contributory negligence on the part of the plaintiff, and counsel for the defendant did not pursue this matter at the conclusion of the hearing.

4. The plaintiff suffered soft tissue injuries in the accident, and numbness to her left hand. She claims damages on the basis of persistent problems with both hands, which has led to a diagnosis of carpal tunnel syndrome, which has resulted in operations to both wrists. The defendant denies liability for the carpal tunnel syndrome.

5. The plaintiff was born in September 1952. She completed her high school studies in Melbourne and then worked in clerical and secretarial positions. She operated her own business for a time in the field of chemical manufacturing, which she sold as a profitable concern in the early 1980's. She then working in a farming venture as a vegetable producer for a time, until her marriage broke up. She now has two adult children, and 14 and 4 year old daughters.

6. The plaintiff worked in a chain of wholesale hairdressing suppliers in Melbourne in 1990 and 1991. This business was liquidated in October 1991, and the plaintiff then came to Canberra for family reasons, and did not seek employment for a time. In October 1992 she re entered the workforce and worked promoting a crime prevention handbook which was being produced for the Australian Federal Police Association. This job finished in February 1993, and she looked for another position for a time, before deciding to have another child. At the time of the accident she was thus not actively looking for work, and she acknowledges that she would not have sought work until about October 1995 when her last child, who was born in July 1994, would have been old enough for appropriate care.

7. The impact, which I am satisfied was of considerable force, occurred when the plaintiff was holding the steering wheel and twisting around to her left to speak with her daughter, who was in the back seat of the car. She described feeling numbness in her hands immediately after the accident, and feared spinal damage. Ambulance officers attended, and the plaintiff was taken by ambulance to Woden Valley Hospital.

8. A report from the Medical Records Department tendered as part of the plaintiff's case says that the plaintiff

"...was brought by ambulance to the Emergency Department of this hospital on 18 September 1993 following an alleged accident, in which she was the seatbelted driver of a motor vehicle struck from the rear. Ms Bayley had been looking backward at the time of the collision and experienced weakness/numbness of the left hand. No loss of consciousness was sustained. On arrival Ms Bayley complained of pins and needles in the tips of the left fingers, pain over the neck, behind the right eye, at the small of the back and from the left thoracic region radiating to the ribs and axilla. A hard cervical collar was in situ."

9. The report notes that the back was painful over the lumbar region and the neck was painful. It notes that right arm sensation, power and reflexes were intact, and that x-rays revealed no fracture or dislocation. The plaintiff was given analgesia and anti inflammatory medication and a soft collar and discharged from the hospital that day.

10. The plaintiff says that she went to her general practitioner, at the Warramanga Health Centre, on the Monday. The original notes of her attendance, which are hand written, seem to have the date 26 September 1993. This would have been the Sunday of the week following the accident, and I accept that the plaintiff in fact did attend on the Monday immediately after the accident, but that the date was incorrectly interpreted as 26 not 20. Nothing in fact turns on this. In a report to an insurer of 7 November 1994 Dr Hiam of the Warramanga Medical Centre confirms that the plaintiff presented with neck and back pain and a weakened left arm and hand grip.

11. The plaintiff maintained that she had noticed numbness of both hands, but accepted that the notes of her original presentations only recorded complaints relating to the left hand. The plaintiff is left handed, and said that this was her major concern, but I must conclude from the contemporaneous notes that no complaint was made of right hand numbness. This first emerges in the medical records when as part of a routine pregnancy consultation in March 1994, some six months after the accident, she complained of numbness in the index, middle and ring fingers of each hand at night, and Dr Hiam provisionally diagnosed carpal tunnel syndrome, which he said in his report of December 1997 is

"...not uncommon in pregnancy."

12. The plaintiff was sent to Dr Newcombe, a neurosurgeon, in April 1994. He took a history of tingling in the finger tips of both hands, worse on the left, occurring before the pregnancy. He concluded that the plaintiff required carpal tunnel decompression to relieve her bilateral carpal tunnel syndrome. He said in a report of July 1995

"Symptoms were present from the time of the accident. On this basis I believe that her carpal tunnel syndrome was precipitated by the motor vehicle accident, probably through wrist movement associated at the time while she was gripping the steering wheel. This is the usual mechanism in such injuries."

13. Dr Newcombe subsequently performed a left median nerve decompression in January 1996 and a right median nerve decompression in February 1996 at John James Hospital. In a report of 29 March 1996 he expressed the view that when the wounds from the operations fully healed she should be able to return to full time work. He noted, however, in a report of January 1998 that the plaintiff continued to complain of wrist pain and concluded that she did have an ongoing disability to both wrists.

14. Dr Andrews, a consultant neurosurgeon, examined the plaintiff for medico legal purposes and reported in July 1996. He said

"With regards to the carpal tunnel syndrome, this type of problem is usually not seen in motor vehicle accidents of this type. But given that there has been trauma to the wrist, it seems probable that the holding of the steering wheel stressed and strained the wrist at the time of impact and it is probable that the carpal tunnel syndrome is secondary to that wrist trauma."

15. The defendants provided medical reports from Dr Matheson, a consultant neurosurgeon, who examined the plaintiff on two occasions. His report of 24 April 1997 was firm in its view that the carpal tunnel syndrome was not related to the accident. He said

"She may well have had some carpal tunnel syndrome but this could not have possibly been caused by the accident and were probably just a pregnancy related phenomena which is common enough in women. There was nothing in this accident that would have produced carpal tunnel disorder. Indeed there was nothing in this accident that would have produced any disorder in my view. I think these are contrived symptoms and the signs are certainly contrived as evidenced by her hand sensory loss. I do not for a minute believe this woman's story. I think she is fabricating her symptoms and has no disability from the accident of 18.9.93."

16. A medical report which takes such a strong position is frequently of limited assistance in this type of case. Dr Matheson has formed an adverse view of the plaintiff, which is apparent in his conclusion that he does not "for a minute" believe the plaintiff. The question of whether to believe a plaintiff is a question for the court, after consideration of all of the evidence. Highly partisan medical reports must carry less weight when compared with reports of treating specialists. I note that both Dr Andrews and Dr Newcombe explained in their reports a mechanism which they felt made it probable that the plaintiff's carpal tunnel syndrome was related to the accident, by describing the stress on the wrists when the impact occurred. This is a reasonable explanation of a mechanism of medical causation, and is hard to reconcile with Dr Matheson's vehement view that the impact could not possibly have caused the condition. On all of the evidence I prefer the views of Drs Andrews and Newcombe.

17. The defendant argued that the fact that complaints of numbness to the left wrist only were contemporaneous to the accident must undermine the views of Drs Andrews and Newcombe. However, there was nothing in Dr Matheson's report to explain why this would be so, and neither Dr Andrews nor Dr Newcombe were required for cross examination. The court is familiar with issues which arise when disc injuries are claimed to be related to motor vehicle accidents, and experts express views that stress that there is an important temporal link between the trauma and the onset of pain which must be established if a disc injury is to be linked to an accident. In this case, where what is at issue is the stress forces caused by the gripping of a steering wheel at the time of a rear end collision, I have no basis to conclude that the failure to report immediate right hand symptoms is fatal to the reasoning adopted by Drs Andrews and Newcombe. I therefore form the view that, on all of the evidence, it is more likely than not that the plaintiff's carpal tunnel syndrome is related to the motor vehicle accident.

18. The plaintiff has also complained of ongoing pain to the neck and back, which I am satisfied fit the description of ongoing soft tissue injury symptoms. No radiological abnormality has been detected. Dr Newcombe in his report of January 1998 concluded that the plaintiff's low back problems appeared to have resolved, but that she continues to experience neck pain, despite a full range of movement. Dr Andrews had noted a favourable outlook for the neck in July 1996, but the plaintiff continues to complain of pain and limitation of activity.

19. On all of the evidence I am satisfied that as a result of the accident the plaintiff suffered soft tissue injury to the neck and low back, which has resolved to the low back but which continues to produce some pain and discomfort in the neck. I am also satisfied that the accident caused the onset of a degree of numbness in the hands, which has been diagnosed as carpal tunnel syndrome, and resulted in operations to decompress the nerves in both wrists. She still continues to complain of altered feelings in her fingers and hands.

20. The defendant tendered a letter from Dr Andrews to the plaintiff's present general practitioner of February 1998 in which he said that

"I can not really find a suitable explanation for the altered feeling in her fingers and hands. We do know that she has a post traumatic arthritis of the left lunate and capitate carpal bones associated with some swelling but that is not the explanation. There is nothing I can do further, I believe, to assist her with her problem."

21. I do not take this to undermine his previous report linking the carpal tunnel problem with the accident, although it does suggest strongly that the plaintiff's ongoing complaints cannot solely be put down to the accident.

22. 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'."

23. In relation to general damages, I assess the plaintiff on the basis of the accident related injuries detailed above. I accept her evidence that she has been limited in physical activities since the accident, particularly in relation to gardening activities. I note, however, that the plaintiff has embarked on a course of successful tertiary study since the accident and a new career, and has been able to successfully combine a course of full time study, part time employment in the field of computing, and the raising of a young child during this period. I assess general damages at $30,000, of which I attribute $25,000 to past loss noting the resolution of the low back pain and the operations to the wrists and Dr Andrews' views concerning her ongoing complaints, which results in a total general damages award of $32,415 which I consider to be appropriate in all of the circumstances.

24. The plaintiff makes a claim for a global award for past and future economic loss by way of a buffer. She acknowledged that she would, due to the birth of her daughter, have not sought to return to the workforce until about October 1995 in any event. At that time, instead of looking for employment in marketing where she had previously secured part and full time employment since 1990 at modest wages, she decided to undertake further study to upgrade her skills. She initially undertook a course in computing through a jobskills programme, and through this obtained a position at 38 hours a week as an assistant librarian from November 1995 to February 1996.

25. In February 1996 she decided to take up full time studies towards an Advanced Certificate in Information Technology at the Canberra Institute of Technology, which she successfully completed in January 1997. She then transferred her studies to a diploma course, which she again successfully completed, finishing her last semester units in mid 1998.

26. During this course the plaintiff experienced some difficulties with her hands and wrists, and after consultation with the disabilities officer at the Institute of Technology, she was introduced to "voice recognition software", a computer application which allows persons who are unable to use a keyboard, whether through disability or lack of training, to speak into a machine which will then convert their speech to either work processing text or computer commands. The plaintiff took to this technology well, and as well as allowing her to conclude her studies, achieving distinctions in some subjects, she also found part time work at around $15 an hour teaching this application to other potential users.

27. The plaintiff commenced this work in January 1997 with Auscript. Her taxable income for 1996-7, based on this work and during a time when she was carrying a full time workload of tertiary study, was some $15,726. This was comparable to the last full year of pre accident earnings, and considerably higher than her earnings in the range of $10,000 in the years 1990 and 1991.

28. The plaintiff said that she could have continued to work with Auscript, but that due to concerns of hers at the stability of that organisation following a decision to commercialise this body, she declined a further contract in February 1998 and found a position at substantially better pay with an organisation which bids for and provides training to government agencies in computer applications. She has been earning $260 a day in this role, and has found work for between 3 and 5 days a week in the first half of 1998, combining this training work with her completion of her studies. While this employment is dependent on short term contracts, it is at a considerably higher rate than the plaintiff had previously enjoyed.

29. It is of course to the plaintiff's credit that, faced with the challenges of her accident related difficulties, she has embarked successfully on a course of tertiary study which has opened a new field of professional employment to her. She clearly enjoys the work and the opportunity to utilise her skills, and she presented as a person who would inspire confidence as a trainer in this field. She has also done some part time tertiary teaching at the Canberra Institute of Technology in late 1997 and 1998. While the plaintiff still continues to suffer from some neck pain, and has ongoing difficulties with her fingers, she has retrained herself to a new professional field which is proving to be both satisfying and more financially rewarding than her previous employment.

30. Taking all of this into account I am satisfied that only a modest buffer is appropriate for loss of earning capacity. The claim was particularised at a buffer of $50,000 for past loss and $100,000 for future loss. As the plaintiff acknowledged that she would not in any event have been working until the end of 1995 I am not satisfied that the past claim is realistic. I note that in the time since the plaintiff has been able for family reasons to resume work she has undertaken successful tertiary studies and obtained part time employment in her new professional field. I am not satisfied that this shows any accident related loss, but rather a sensible decision to utilise her economic capacity to study and improve her ability to utilise her economic capacity for the future. She has been able to achieve a higher taxable income through her part time work in the 1996-7 year than when working full time in her previous marketing position.

31. For the future, while I must acknowledge that the plaintiff continues to have some ongoing pain and discomfort, she has identified a satisfying, appropriate and remunerative field of endeavour. In all of the circumstances I award a global buffer of $40,000 in respect of past and future economic loss inclusive of interest.

32. Out of pocket expenses were agreed to amount to $9,444.75. As I have found that the carpal tunnel syndrome is related to the accident it is appropriate to award this full amount.

33. Future out of pocket expenses were claimed to include ongoing physiotherapy at the rate of two visits per week at $48. The plaintiff agreed that it had been some time since she had undertaken such treatment, and I am not satisfied that this claim is made out. She has a limited need for medication and future treatment. In relation to general future medical care, I would award a global discretionary buffer of $2,000. The plaintiff has also claimed the cost of a computer equipped with the appropriate form of voice recognition software. I am satisfied that the plaintiff's ongoing difficulties do create a need for such technology, which will allow the plaintiff to undertake her new career in consultancy and training. While this claim was particularised at $10,000 the plaintiff tendered quotations showing that the necessary equipment could be provided at a cost of $2,800 for the computer and $549 for the software. In all of the circumstances I consider an award of $3,349 appropriate.

34. There was also a claim for the cost of a vehicle with power steering and automatic transmission. The plaintiff acknowledged that she had managed to drive regularly in her present vehicle which is a manual with non power steering. If she finds more comfort in a better vehicle with power steering and automatic transmission, this must be her decision, but I am not satisfied that this is a matter for the tortfeaser.

35. There was a claim particularised as a "need for ironing assistance" at $15 per week indefinitely for the future. No specific evidence supported this claim, and although the plaintiff's son and daughter gave evidence that they were assisting around the house, they acknowledged that their mother had been very busy in the last couple of years while studying a full time workload and working part time as well as playing her part in the home. The evidence does not, in my view, support a claim in the nature of a Griffiths v Kerkemeyer claim.

36. This amounts to a total award of $87,208.75 which I consider to be appropriate in all of the circumstances.

I certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 17 July 1998

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Snedden Hall & Gallop

Counsel for the Defendant: Mr F G Parker

Instructing Solicitors: Barker Gosling

Dates of hearing: 6 July 1998

Date of judgment: 17 July 1998