Umback v Wallace & Anor Umback v Kelly [1999] ACTSC 113 (29 October 1999)

Last Updated: 11 November 1999

Umback v Wallace & Anor

Umback v Kelly

[1999] ACTSC 113 (29 October 1999)

CATCHWORDS

NEGLIGENCE - Motor vehicle accident - First accident - Contributory negligence - Plaintiff proceeded through intersection - Defendant attempted a turn into her path and collided with her vehicle - Whether plaintiff failed to take due care by failing to sound her horn, slow down or veer away - No issue of principle.

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Two accidents - First accident causing soft tissue injury to neck and low back - Ongoing mild symptoms - Second accident caused only transient aggravation of pre existing condition - Total absence of any contemporaneous complaint to a medical practitioner in relation to second accident - No issue of principle.

No. SC 561 of 1996

No. SC 77 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 29 October 1999

IN THE SUPREME COURT OF THE )

) No. SC 561 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHELLE ANNE UMBACK

Plaintiff

AND: DEAN WALLACE

First Defendant

AND: COLIN PECKOVER

Second Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 29 October 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $83,571.85.

2. The defendants pay the plaintiff's costs.

IN THE SUPREME COURT OF THE )

) No. SC 77 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHELLE ANNE UMBACK

Plaintiff

AND: KEVIN KELLY

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 29 October 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $6,014.

2. The question of costs is reserved.

1. These actions are both claims for damages for personal injuries arising from motor vehicle accidents which occurred in the Australian Capital Territory. The plaintiff claims that she sustained soft tissue injuries to her neck when her car was struck by a vehicle driven by the defendant Wallace and owned by the defendant Peckover at the intersection of Ginninderra Drive and Tillyard Drive at Flynn on the evening of 18 March 1987. This will be referred to throughout these reasons as the first accident. She claims that she aggravated these injuries when the car she was driving was struck from behind by a vehicle driven by the defendant Kelly at the intersection of Southern Cross Drive and Moyes Crescent at Holt in the afternoon of 14 August 1989. This will be referred to throughout these reasons as the second accident.

2. The matters were heard together with the evidence in each matter evidence in the other, as the plaintiff's claimed disabilities were said to arise from the first accident and to have been aggravated by the second accident. The proceedings arising from the second accident were originally brought in the Magistrates Court, but were transferred to this Court. I will in these reasons explain my reasons for judgment in each matter, and make orders appropriately based on the one set of reasons.

3. Liability was admitted in respect of the second accident. Liability was denied in respect of the first accident, and contributory negligence was pleaded. The plaintiff says that she was proceeding along Ginninderra Drive with a friend with the intention of attending a nightclub in Belconnen. It was dark. As she approached the intersection she observed the lights of the defendant's vehicle coming towards her and then apparently slowing down to stop in the intersection waiting to execute a turn. She proceeded through the intersection, but the defendant attempted a turn into her path, and collided with her vehicle.

4. The defendant was not called to give any version of the accident different to the plaintiff's evidence. Counsel for the defendant submitted that the plaintiff failed to take due care by failing to sound her horn, slow down or veer away. While I acknowledge that it is the duty of all road users to take care for their own safety, and that no one can assume that other road users will behave lawfully or sensibly (Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424), it seems to me that the plaintiff cannot be criticised for proceeding at or below the speed limit through an intersection when another vehicle is apparently stationary and lawfully giving way to the plaintiff. I accept the plaintiff's evidence on the circumstances of the accident, and find that the defendant, having apparently come to a stop to give way, as he was obliged to do, then proceeded suddenly and without warning to attempt a turn in the face of the oncoming plaintiff. It seems to me to be unrealistic to expect motorists to sound their horns or slow to a halt when, as happens at every intersection every day, they see another vehicle properly waiting to give way. I am not satisfied that the defendant has discharged its onus in establishing contributory negligence on the part of the plaintiff, and I find that the defendant is liable in respect of the consequences of the first accident which occurred when he negligently attempted to make a right hand turn in the face of oncoming traffic.

5. The plaintiff was born in 1960 in Sale, Victoria. She moved to the South Coast of New South Wales before school age, and completed her primary education at Merimbula Primary. She attended Bega High School to the High School Certificate level, and then completed a twelve month secretarial course at the Bega Technical College in 1978. While at school she had been a keen horsewoman and show jumper.

6. After leaving school she worked for a period as a sales assistant and secretary at a Bega window furnishing business. She also worked for a period as a nurse's aide at Bega Hospital, until she fell pregnant. Her first child was born in January 1981. She did not work again until after the birth of her second child in April 1982, when for a period in around September of that year she worked on a part time basis for the Bega window furnishers. She had moved to Gladstone and Albury with the father of her children during these years. In 1983 she moved to the north coast with her children, and did not work. She attempted a reconciliation with her former partner in Albury in 1984, which was not successful, and in December 1984 moved back to Bega, finding casual employment one night a week at a local bowling club doing bar work while her children were looked after by family. In mid 1985 she moved to Merimbula, and found work there on a casual basis as a waitress in a restaurant and doing bar work at a club. During the busy Christmas holiday period she was working almost every night, with her children being cared for by family or friends.

7. She moved to Canberra with her children in early 1986, and found work as a casual bar attendant during that year. The plaintiff admitted that she was in receipt of a government allowance as a single parent during this period, and for many years thereafter, and that she did not always declare to the authorities or pay tax on some of her earnings as a bar attendant, which at times was on a cash basis. Records of her casual employment are not comprehensive.

8. In late 1986 she obtained a position as a bar attendant at JD's nightclub in Canberra. At the time of the accident she says that she was working three nights a week at this job, and was sometimes called in for extra shifts.

9. The plaintiff says that in the impact her car was struck just behind the driver's seat, and the car was spun around a couple of times before coming to rest. She says that she felt sick at the time of the accident, but after speaking to police at the accident scene she and her friend were able to obtain a lift and attend the function they were planning. She says that she remembers catching a cab home not long after because she was not feeling very well, taking a couple of panadol and going to bed. She says that the next morning she noticed stiffness and pain in her neck and shoulder, which persisted. She could not remember precisely which day of the week the accident occurred on, but she said that she was unable to go in to work for some weeks.

10. The plaintiff says that she saw her then general practitioner, Dr Jamieson, on or about 27^th March. Dr Jamieson's notes, which were produced by the plaintiff, support this, and state

"Hit from behind by another car. Dizzy at accident. Next day shake all day. Dizzy ++"

and reports complaints of pain at the left neck and shoulder. He prescribed bed rest and referred the plaintiff for x rays, which were obtained on 1 April. On her next visit Dr Jamieson recorded intermittent pain over the right neck, and low back pain post the accident. He prescribed Feldene.

11. The plaintiff says that she took some weeks off work, and then returned to work, but says that she was in neck pain, and found the work hard. She says that she became cranky with pain, and worked reduced hours. Her then employer gave evidence of a change in her demeanor around this time.

12. The next record in her general practitioner notes is dated 11 January 1988, and states

"Neck OK Low Back Pain Intermittent up to 7/12 now sleeps on floor. Had x rays didn't bring them in. Anxiety...scared of cars."

There is no record of any further treatment from Dr Jamieson.

13. The plaintiff continued to work at the bar, but says that she reduced her hours. There is no clear record of this. In early 1989 she moved to Merimbula for a period, but returned to Canberra in about March, and obtained employment with Key Data, doing part time clerical and word processing work, for about 20 to 25 hours a week. She says she saw a Dr Walsh, but no reports or notes were tendered from this doctor. The plaintiff later began seeing a Dr Foo, and while there are accounts verifying that she did obtain an x ray of the lumbar sacral spine and a scan of her spine was also performed at the referral of that doctor, no notes or reports were tendered. The practice of Dr Foo replied to a subpoena for production by stating that inactive files at the practice had been archived by the Department of Health. These accounts, tendered by the plaintiff, are addressed to her then solicitor, and it is unclear whether they relate to treatment or medico legal expenses.

14. The plaintiff is uncertain how long she worked for Key Data. She said in her evidence that it was about 6 months, and tendered some pay slips, which only covered April 1989 and showed her working between 12 and 18 hours a week. She said in her evidence in chief that she was still working there at the time of the second accident in August 1989. In a subsequent application for a job at David Jones she stated that she had worked in this position between 1988 and 1991.

15. In 1989 she also obtained work as a part time bar assistant at the Fyshwick Tavern, and she persisted in this job throughout 1989 and 1990 working on a casual basis.

16. The second accident occurred on 14 August 1989 as she was returning home after picking up her son from football training. She was proceeding along Moyes Crescent Holt and came to a stop at the intersection with Southern Cross Drive, a major thoroughfare which is controlled by a give way sign. She says that as she was stationary she was struck from behind by the defendant's vehicle with sufficient force to cause her boot to fly off the vehicle, and the vehicle to be pushed forward into the roadway. This version was supported by her son. The defendant admits liability in respect of this accident.

17. The plaintiff says that, following this accident she did not notice a lot of difference to her condition, and was more concerned about her son, but

"...maybe a month or two later I notice the condition of my neck getting worse."

There is, however, no record of any complaint to a doctor contemporaneous with this accident.

18. There is a record, tendered by the defendant, of the plaintiff seeing Dr Foo in February 1990

"...because of pain in the right shoulder for the preceding 10 days. This was apparently related to her work serving behind a counter. The range of neck movements was full but there was pain on rotation to the left."

19. The defendant in the second action stresses the absence of any contemporaneous record of any aggravation of her condition due to the motor vehicle accident.

20. In about February 1990 the plaintiff obtained work as a sales assistant with a firm in Fyshwick called Icarus Investments, which apparently operated an adult store selling videos and other products. She says that she worked full time for some months and then part time. She was still doing some work as a bar attendant at the Fyshwick Tavern. In late 1990 she obtained work as a casual sales assistant at a jeans store at Kippax.

21. The plaintiff commenced a course of treatment with the Macquarie Chiropractic Clinic in March 1991, and consulted regularly through April and May of that year, and again in September 1991. A report from this clinic, dated February 1996, states that she attended for ongoing complaints flowing from motor vehicle accidents. In the notes from the clinic, tendered by the defendant, the plaintiff reports complaints of neck and back pain since an automobile accident which is said to have occurred in 1986, but which I accept is the first accident. No mention is made of the second accident.

22. The plaintiff ceased work to have her third child in August 1991. A fourth child was born in March 1993. There is a gap in contemporaneous medical records for this period. In June 1993 she obtained three months employment as a casual office assistant at the CSIRO. In her application for this position, tendered by the defendant, she stated in the recent employment section that she had worked at "house cleaning" from July 1991 to February 1993. In cross examination she conceded that she had done some occasional house cleaning assistance, sometimes for cash payments, but denied that this had been regular or steady employment.

23. In November 1993 the plaintiff was assaulted while attending a Canberra hotel, and received two black eyes. A Criminal Injuries Compensation Act claim was brought in respect of this assault, but it is clear from the record, tendered as part of the plaintiff's case, that no aspect of neck or back pain was included in this claim. Ms Umback did refer to anxiety in respect of the assault. It is apparent from documents tendered by the defendant, however, that the plaintiff also suffered from headaches following this assault, and her general practitioner, Dr Black, referred her to Dr Andrews. He took a history that

"She was knocked to the ground and her neck struck the corner of a table".

He concluded that she was then suffering from post traumatic migraine.

24. She says that in January 1994 she attempted work at Duntroon as a housemaid, but she says that this work was too heavy for her, although she had been able to do most jobs at home. She next was employed from about April to June 1995 as a sales person and supervisor at a jeans store, although she gave evidence of helping a friend painting in a video store in the early part of 1995. She denied that she had been employed doing this, and denied that she had been involved in setting up a video or adult products venture.

25. From July to December 1995 she obtained part time employment as a sales consultant to Luxaflex, selling blinds. This involved placement in the David Jones stores, and from December 1995 to June 1996 she found work as a sales assistant with David Jones, but resigned this position because, she says, she was having difficulties with neck and back pain. From 1995 medical records begin to appear of treatments and consultations for neck and back pain. Her general practitioner, Dr Black, who did not provide a report, referred her to Dr Cassar, who provided a course of treatment which did not seem to provide any benefit and which is not the subject of any report, and then referred her to Dr Speldewinde, who has provided a report and whose treatments the plaintiff believes have been of assistance. She also attended the Commonwealth Rehabilitation Service, but no report was provided in respect of this.

26. The plaintiff did not work again until July 1999, when she commenced work on a casual basis with Luxaflex at their Canberra headquarters. She was continuing with this work at the date of hearing, and hoped that she could continue and extend her hours.

27. The plaintiff tendered a number of medico legal reports. Dr Richard Evans, a physician, reported in July 1996 and September 1998. He took a history broadly consistent with the plaintiff's evidence, and referred to her reports of increased neck pain due to the second accident, but noted that this had not been referred to by her then treating general practitioner, Dr Foo. His conclusion was that she had sustained soft tissue injuries to the neck and lumbo sacral spine. He found that she was fit for work not requiring a great deal of bending or twisting of the neck or back, or lifting of weights heavier than 6 kg. He felt that she was likely to continue to experience discomfort, and formed the view, in his first report, that she had a permanent impairment of her neck in the order of 10% and a permanent impairment of her back in the order of 15%. He felt that the back was entirely due to the first accident, and the neck was contributed to equally by both accidents.

28. In his second report he confirmed his opinion of soft tissue injury to the neck and back, and confirmed his view on her fitness for employment not involving heavy work. He felt that her neck impairment remained at 10% but that her back had improved somewhat to a 12% permanent impairment.

29. Dr Speldewinde, a rehabilitation physician, provided a series of reports and was cross examined on these reports. He first saw the plaintiff in July 1996 for medico legal purposes, and diagnosed

"...a right upper thoracic vertebral dysfunction with a right buttock soft tissue problem"

in his report of November 1996. He became involved from May 1998 in providing treatment by way of facet joint pain block injections. In his report of January 1999 he said the plaintiff

"...has features consistent with a right lower cervical vertebral dysfunction consistent with a zygo-apophyseal joint arthropathy. This has been subsequently confirmed with repeated fluroscopic diagnostic medial branch blocks, from which she has consistently reported full pain relief with C6 and C7 medial branch blocks implying a C6/7 zygo-apophyseal joint arthropathy. Her lower back pain remains consistent with a sacro iliac or zygo-apophyseal joint arthropathy and she is yet to have formal diagnostic testing. However this is not necessarily indicated as the main problem is her neck pain and she is certain if this can get controlled her quality of life both recreationally, domestically and vocationally will be significantly improved as her lower back pain remains tolerable."

30. Dr Speldewinde performed a surgical procedure to block the plaintiff's nerve at the point of her C 6/7 pain at the Mater Hospital in Newcastle in May 1999. He said that when he reviewed her some two months later in July 1999 his notes said

"Overall now good relief of pain as described. No aggravation of pain with movement and working".

He described this result as excellent. In his report of July 1999 he said

"It is feasible that if pain is abolished that she will have almost full working capacity in such occupations",

referring to sales and office work.

31. In his report of January 1999 he attributed a 3% impairment of the cervical spine and a 10% impairment of the lower back to the first accident and a 12% impairment of the cervical spine and a 3% impairment of the lower back to the second accident. He agreed, however, that he was entirely dependent here on the history he had received from the plaintiff which involved a history of aggravation of the neck. The plaintiff said in her evidence in chief that she noticed an increase in neck symptoms within a month or two of the accident, but she was then asked in her evidence in chief

"Can your remember how long afterwards you'd noticed this that the neck had got worse, how long after the accident?"

and she replied

"When I was working at Icarus Investments."

32. The plaintiff says that this was at least six months after the second accident. In his cross examination Dr Speldewinde agreed that, if a neck was said to be symptomatic, and then there was a new trauma and then an aggravation of symptoms after a period of six months, this would be too long to link the new trauma with the aggravation.

33. A report was tendered from Dr Andrews for the second defendant. He examined the plaintiff in February 1996 and took a history of an aggravation of symptoms. He concluded

"It would appear that she has suffered soft tissue injury, probably some facet joint strain in the cervical and lumbar region resulting from the first motor vehicle accident in March 1996. There were residual symptoms from that at the time of the second motor vehicle accident. She now has low grade symptomatology that seems to have become persistent. It think there is a level of disability but it is only mild."

34. He would have attributed her symptoms as 60% to the first accident, and 40% to the second accident, but he was relying on her history of symptoms some 6 years after the second accident.

35. A report was also tendered by Mr Petroni, a clinical psychologist, who examined the plaintiff for medico legal purposes in August 1996. He expressed the view that the plaintiff was clinically depressed as a result of the injuries sustained in the motor vehicle accident. He does not seek to make any apportionment between the accidents.

36. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh 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 in if he had not sustained the wrong for which he is now getting his compensation'."

37. In this case I am satisfied that the defendant in the first accident was negligent, and caused the motor vehicle accident complained of. I am satisfied that the plaintiff attended her general practitioner immediately after the accident and complained of neck and low back pain, and that these amounted to soft tissue injuries that have persisted in a mild form for the years since the accident, and for which she must receive damages. I am satisfied that these symptoms have caused her some problems over the years in relation to her employment, but that they would not preclude her, on the opinion of Dr Evans, from working full time in occupations not involving heavy lifting. I am satisfied that over the years the plaintiff has had a variety of part time jobs. This pattern was established before the first accident. I accept that she has had difficulty in heavier jobs, such as bar work, but I am not satisfied, on all of the evidence, that this has precluded her from other work.

38. It is difficult in a case brought to trial some 12 years after a motor vehicle accident to make findings of significant disability in the absence of contemporaneous medical evidence. In this case there are significant gaps in the evidence relating to treatment by general practitioners. These continue even after the matter was placed in the hands of the first of a series of solicitors who have conducted the plaintiff's claim. The plaintiff has, in job applications, given a history of far greater periods of employment than she now says she was capable of. Again, contemporaneous records are of little assistance. Given the findings on disability of Dr Evans, which seems consistent with the findings of Dr Speldewinde, I am not satisfied that the plaintiff has suffered more than persistent soft tissue type injuries causing mild to moderate neck and lower back discomfort.

39. These symptoms have, however, persisted these many years. I accept that the plaintiff has sought to obtain relief over the years from chiropractors. I accept that she has been reluctant to take excessive medications. I accept that in recent years medico legal investigations have led to referrals for treatment, and that Dr Speldewinde has provided treatment that seems to be offering a significant relief.

40. I am not satisfied that the second motor vehicle accident, for which liability was admitted, did more that provide a transient aggravation. I note the total absence of any contemporaneous complaint to a medical practitioner, and indeed the failure to mention the accident at all to a then general practitioner, Dr Foo. I note that when the plaintiff presented for chiropractic treatment in 1991 she referred only to the first accident. I accept the submissions from counsel for the defendant in the second accident that the plaintiff in her evidence in chief placed the time of increase in her symptoms at more than 6 months after the second accident, and I accept Dr Speldewinde's opinion that such a gap means that other factors must be looked to for the aggravation at that time. I accordingly assess general damages in respect of the second accident at only a very modest sum in respect of the immediate aftermath of the accident. I would in respect of this second accident assess general damages in the sum of $5,000 for all aspects of the claim, which with interest amounts to the sum of $6,014. I am not satisfied that the second accident had any impact on the plaintiff's economic capacity, and I make no award. I note, however, that it was probably necessary to hear this claim together with the first claim in this court, as otherwise it would have been difficult to disentangle the two claims, and this will be relevant to the question of costs. No out of pocket expenses are attributable to the second accident on my view.

41. In respect of the first accident, I find that the plaintiff's ongoing complaints are attributable to this accident. Taking all of the evidence into account, I assess general damages in the sum of $25,000, and given the evidence of likely good prospects of recovery, I would attribute $20,000 to past loss, generating interest of $5,053, making a total award of $30,053.

42. In respect of economic loss, I find that the ongoing soft tissue injuries have had an ongoing impact on the plaintiff's ability to engage in heavy manual labour, and I accept that she is limited to duties described by Dr Evans.

43. The plaintiff in her submissions on economic loss made a claim based on a specific arithmetic claim for various periods since the accident. She claimed a sum of $1,500 based on her reduced earnings at JD's nightclub to February 1991. She makes no claim in respect of the period from then until her work with the CSIRO. The submissions then go on to broadly claim full wage loss for any periods in which the plaintiff was not in employment from this point on. I am not satisfied on all of the evidence that this claim is made out. I am not satisfied that the plaintiff's ongoing soft tissue injuries amounted to more than ongoing minor symptoms and a restriction in an ability to work in heavy duties. The plaintiff has had a range of part time and casual jobs over the years. It is admitted that for some of them tax was not paid and social security not advised. Save for the attempt to work as a housemaid in January 1994, I am not satisfied that any of these jobs was of a type that the plaintiff is, by reason of her accident related disabilities, precluded from performing.

44. I accept that in the last year or so the plaintiff has been undertaking some treatments which would have an effect on her earning capacity for short periods, and I take that into account. It seems to me that taking all of the evidence into account this is a case where, being mindful of the factors set out by the Full Federal Court in Fry v McGufficke [1998] 1499 FCA (26 November 1998) a buffer approach is appropriate. I assess the sum of $20,000, inclusive of interest, for past wage loss.

45. The plaintiff claims a future wage loss based on an ongoing loss of $150 a week. I am not satisfied that this is made out. I would again adopt a buffer approach to the future, and in so doing have particular regard to the evidence of Dr Speldewinde about the prospects for further improvement. I accept nevertheless that heavy physical work is no doubt precluded forever. Taking all of the evidence into account and having regard to the plaintiff's age and past employment history, I award a buffer of $15,000 for future wage loss.

46. Out of pocket expenses were claimed in the total sum of $14,518.85. There is a large component of this relating to treatment performed by Dr Cassar, about which no report was served, but the plaintiff gave evidence that the treatment was not successful. I am satisfied nevertheless that it was reasonable to seek it. There is also a large component for the Commonwealth Rehabilitation Service, again with no supporting report, but again this seems consistent with an attempt to overcome this persistent soft tissue injury. The treatment expenses from Dr Speldewinde seem to be bearing fruit for the plaintiff, and this is of course included. I am satisfied that I should award the full amount claimed in respect of the first accident. No out of pocket expenses are in my view attributable to the second accident.

47. Future out of pocket expenses must be a matter for conjecture. The plaintiff has put herself in Dr Speldewinde's hands and is benefiting from this treatment, with will continue for some time. It is necessary to make some form of global future buffer for future out of pocket expenses, and I award the sum of $4,000 in this respect of the claim.

48. This amounts to a total award in the first action of $83,571.85, which I consider to be appropriate in all of the circumstances, and award with costs.

49. In the second action, I award the sum of $6,014, and I will hear the parties of the question of costs.

I certify that this and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 29 October 1999

Counsel for the Plaintiff: Mr B Salmon QC

Instructing Solicitors: Wood Fussell

Counsel for the Defendants in SC 561/96: Mr H Marshall

Instructing Solicitors: Barker Gosling

Counsel for the Defendants in SC 77/98: Mr A Black

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 14, 15, 16, 23 and 24 September 1999

Date of judgment: 29 October 1999