Buttriss v Buttriss & ors [1999] ACTSC 121 (12 November 1999)

Last Updated: 12 November 1999

Buttriss v Buttriss & ors [1999] ACTSC 121 (12 November 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury to neck - Headaches - Ongoing nuisance value symptoms - No issue of principle.

No. SC 525 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 12 November 1999

IN THE SUPREME COURT OF THE )

) No. SC 525 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MELISSA BUTTRISS

Plaintiff

AND: CHERYL ANN BUTTRISS

First Defendant

AND: ACT SCHOOLS AUTHORITY

Second Defendant

AND: PETER WILLIAM KEIR, SHANE

MORRISON KEIR, LORETTA

CHRISTINA KEIR and PAUL

SYDNEY KEIR trading as KEIRS OF

CANBERRA CHARTER COACHES

Third Defendants

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 12 November 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $55,943.

2. The question of costs is reserved.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 24 May 1988 at Langdon Avenue Wanniassa in the Australian Capital Territory. The plaintiff was then a 16 year old school student, and was a passenger in a vehicle driven by her mother, who is the first defendant. As the vehicle was passing a parked bus a child ran out from the bus onto the road, and Mrs Buttriss braked suddenly in order to try to avoid the child. The plaintiff brings this action against her mother, the Schools Authority and the operators of the bus. Liability was admitted, and the defendants appeared by way of one counsel, who advised me that arrangements had been made between the several defendants, and that a single verdict against the defendants would be satisfactory. The matter thus proceeded as an assessment only.

2. Ms Buttriss says that she recalls the car stopping suddenly, and being thrown forwards and then back in her seat. She felt shocked at the time, and immediately after the accident began to feel a burning pain in her neck and a headache. Her mother took her to see her family general practitioner, who prescribed physiotherapy and anti inflammatories and, she says, recommended that she wear a soft collar. She was absent from school for two weeks.

3. The plaintiff says that she continued to experience headaches all the time and a constant burning to her neck all the time on her return to school. At the start of the next year she commenced at Erindale College, but she dropped out after three months. She then found employment for a couple of months at a child care centre, and then worked for six months as a dental nurse. In about 1990 she found work as a nanny, looking after two children in the family home. In that year she married, and worked for a period as a dental assistant, first at the health centre in Canberra City, and then in the ACT School system. In February 1992 the plaintiff's first child was born. She has not been in full time employment since.

4. The plaintiff gives a history of constant neck pain, and headaches throughout this period. There is no support for this claim in the contemporary medical records. Counsel for the defendant tendered the clinical notes from the plaintiff's general practitioner from 1983 to 1994. These show some 46 visits from the date of the motor vehicle accident, and only on the first visit does the doctor refer to the accident. There are mentions, both before and after, of occasional back problems, which counsel for the defendant pointed to, not to suggest an aggravation of any previous condition, because the problem claimed to have arisen from the motor vehicle accident is cervical and not lumbar pains, but to show that the plaintiff had a relationship with her family general practitioner where she was able to complain of and seek assistance for any symptoms she might be suffering. Dr Reading provided a report to a previous solicitor for the plaintiff, which was tendered in the defendant's case, in which he said, in October 1993 that after the initial consultation there had not been

"...any further exacerbations of the symptoms and it is therefore assumed that she has made a full and complete recovery from what appears to be a mild lower cervical whiplash type injury. Her prognosis appears to be excellent and she appears to be suffering no complications as a result of the MVA."

This is a significant opinion from the plaintiff's then treating general practitioner.

5. References to headaches, in these notes, are linked to periods of pregnancy. There is no reference to ongoing motor vehicle accident related problems. I note that these clinical notes covered a period when the plaintiff was working as a child care assistant, a dental nurse and a nanny. Despite periods of full time employment in relatively demanding physical pursuits, no mention of her claimed ongoing and constant neck pain and headaches appears. In a case where the claimed symptoms are not otherwise objectively verifiable, and it is not suggested that there is any spinal damage in this case, it is difficult to accept a plaintiff's history of ongoing symptoms when there are contemporaneous treatment notes covering the period in question which, while recording regular complaints of various ailments, make no mention of the symptoms complained of.

6. Ms Buttriss says she would sometimes finish work in tears from the pain. She explained the lack of records of complaint by saying that, although she complained of neck pain, Dr Reading called her a sook. She acknowledged that the notes showed some 46 consultations without any further reference to the accident.

7. The plaintiff's mother gave evidence of ongoing complaints of neck pain and headache. She agreed that she took the plaintiff to Dr Reading for general health problems, but could not explain why she didn't take her for these claimed ongoing difficulties. She had no recall of her daughter coming home from work in tears, and she agreed that if she had observed this level of pain she would have taken some action. The plaintiff's father also gave evidence of the plaintiff being in pain over the years.

8. The plaintiff said that her pains were constant after she returned to school, but reports from the school at the end of the first semester, in July 1988, do not mention any disabilities in relation to her involvement in Year 10 Physical Education and an elective Physical Education Unit. While this is not of itself conclusive, the school records, like the general practitioner notes, are not consistent with the evidence given at the hearing of ongoing constant pain and disability.

9. The plaintiff separated from her husband in early 1993 and went to live on the Sunshine Coast in Queensland. There was then a reconciliation, and twins were born in May 1994. In the middle of 1994 the marriage finally broke down, and the plaintiff moved to Cootamundra to be with her parents and her sister. In May 1995 she moved to Queensland again, and she says that she began to attend at a chiropractic clinic. She said this provided some relief. In 1995 she did some part time work at a take away food shop. No notes or reports from this chiropractic treatment were tendered, and the plaintiff said that she did not have receipts for these.

10. The plaintiff says that she takes panadol for her headaches. She also said that she takes panadeine forte and anti inflammatory which she called rafen. Both of these are prescription medications, and there are no notes of such prescription. The plaintiff said that she obtained these from a friend who is a nurse, and from her sister, who is prescribed the anti inflammatory. I am not satisfied on this evidence that such medications are necessary or are related to the accident.

11. In August 1997 the plaintiff began, with her mother, a TAFE course in age care. Her mother successfully completed the course, and is now in employment as an assistant at a nursing home. She gave evidence that this involves heavy work lifting patients. The plaintiff says that she was doing well in the theory aspects of the course, but realised that she would not be able to cope with the heavy lifting required as an age care nurse's assistant, and consequently withdrew from the course. She says that she did not realise this when she commenced her studies.

12. In June 1998 she had a weeks work trial at the take away shop where she had previously worked on a part time basis. The then proprietor gave evidence that the plaintiff's mother had worked in the shop, and the then proprietor has now left the shop and works in the age care field with the plaintiff's mother. The plaintiff says that she could not cope with the heavy work, and this was supported by Ms Muraca. Ms Muraca said however that the plaintiff was a very pleasant person, and noted that when the shop closed the other staff all got jobs locally, including jobs in a video store. The only job that the plaintiff has attempted was in this take away shop, where she had to stand most of the time and also lift and clean.

13. The plaintiff has medical reports from Dr Scott, an occupational physician. He took a history of ongoing neck pain and headaches. In his report of July 1998 he observed some tenderness and complaints of pain on neck movement, and diagnosed a chronic pain symptom flowing from soft tissue injuries. He felt that her working capacity was reduced, and concluded that

"...her degree of permanent partial loss of efficient use of her neck, shoulders, upper limbs and back, as well as her chronic pain syndrome, and symptoms described, amounts to a Whole Person Impairment of 15%."

He maintained this view in later reports. He indicated that it was important for the plaintiff to find a general practitioner in whom she has confidence and to do some neck strengthening exercises and a pain management course.

14. There was also a report from Dr Winstanley, an orthopaedic surgeon of Maroochydore, who examined the plaintiff for the purposes of a medico legal report in January 1998. He took a history of ongoing pain and headaches. He found some tenderness in the cervical spine, but a free range of movement and no impairment of power or sensation. He noted that x rays showed no abnormalities. He diagnosed soft tissue injuries, and concluded

"...the patient would be able to manage lighter type work activity. It would be difficult for her to return to heavy physical activity. In my opinion, her condition has stabilised such that she has a permanent partial disability relating to her cervical area of 3% loss of bodily function."

15. The plaintiff also tendered reports from Dr Harding, who specialises in spinal and musculoskeletal medicine. He first examined the plaintiff in March 1999 and took a history of neck pain and headaches, present for about ten years but worse in the past 2 years. He diagnosed cervical and thoracic minor intervertebral dysfunction as a result of a whiplash type injury. He recommended a course of treatment, and said

"I do feel that she will continue to suffer from a degree of neck and dorsal pain for at least 12 more months, but that her symptoms and signs should eventually settle with more active treatment."

He felt that the plaintiff was

"...fit for light duties- i.e. no heavy lifting (more than 10 kg) and no prolonged, fixed postures. I believe that Ms Buttriss is capable of working 8 hours per day, 5 days per week in this manner."

He has given Ms Buttriss some occipital block injections, which resulted in some weeks of pain relief, and in his report of October 1999 said that he intended to repeat this, and also to treat with manipulation.

16. There are also two reports from Dr Sanderson, a Canberra general practitioner. He formed the view that the plaintiff was unfit for work, and in his report of October 1999 reported that the plaintiff's disabilities amounted to an 80% whole person impairment. This is an extraordinarily high view, and I am not satisfied that I should accept this view, from a medico legal general practitioner, when it is quite at odds with the views of Drs Scott and Winstanley, who are both specialists reporting in the plaintiff's case, and who both offer an opinion that the plaintiff's levels of impairment are much lower. My observations of the plaintiff, and the contemporaneous medical reports, are quite inconsistent with an 80% whole person impairment.

17. Dr Harding reviewed the plaintiff following Dr Sanderson's report. On the basis of the history of the unsuccessful work placement, he said that he would revise his opinion in relation to her fitness to work, stating that she could work for one or two hours a day. I do not find this revision entirely satisfactory, as it seems to be based on the very pessimistic views of Dr Sanderson. Dr Harding rejected Dr Sanderson's impairment opinion, stating that in his view the plaintiff remained at about 10%-20%, and he said that he hoped this would be reduced to the order of 5%-10%.

18. The defendant tendered the report of Dr Reading, and also medico legal reports from Dr Keiller and Dr Blue, an orthopaedic surgeon. Dr Keiller concluded that she sustained soft tissue injuries which resulted in some ongoing nuisance value symptoms. He recommended some physical therapy to eliminate her minor residual discomfort. He felt there was no impairment to her employment capacity.

19. Dr Blue found no impairment of restriction of movement, and said

"I have no doubt that her neck and shoulders are completely normal. She certainly suffers no ongoing disability relating to the incident of May 28 1999."

20. Taking all of the medical evidence it seems to me that, with the exception of Dr Sanderson, who considers the plaintiff to be very significantly impaired at 80% whole body impairment, and Dr Blue, who considers that the plaintiff has no impairment at all, there is an agreement that the plaintiff does suffer from ongoing symptoms from a soft tissue injury. There is agreement that she would benefit from some further therapy, and Dr Harding, who is now providing the type of therapy recommended by Drs Scott and Keiller, is of the view that the prognosis is for improvement.

21. Whole person impairment figures are not conclusive in this jurisdiction, but this approach was adopted by various of the medico legal experts, and I am satisfied that the plaintiff does continue to suffer from ongoing complaints of neck pain and stiffness. I accept that she complains of headaches also. I find that these complaints are of ongoing nuisance value, and restrict her in heavy lifting activities. I note that, using the whole person impairment approach, the estimates put forward in the plaintiff's case (excluding Dr Sanderson) range from 3% to about 15%.

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 [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'."

23. In this case I am satisfied that the plaintiff suffers from ongoing soft tissue injuries which produce nuisance value symptoms. I am satisfied that there is no spinal damage or change verifiable on x ray. I am satisfied that her headaches are related to this soft tissue injury. I am satisfied that there has been no need for surgery, but that some occipital blocks have been provided by Dr Harding, with good results. I accept Dr Harding's prognosis for further improvement.

24. In relation to general damages, I assess the plaintiff, taking all of the evidence into account, on the basis of the ongoing minor symptoms described above, and award the sum of $22,000, with $15,000 attributable to past loss, generating interest of $3,443, making a total award of $25,443.

25. Out of pocket expenses were claimed in the sum of $3,452.85. Of this the defendant agreed to the sum of $681. The major outstanding expenses were $1,716 for chemist expenses, and $750 for travel expenses. I accept that the plaintiff has taken panadol over the years for headaches. Although she gave evidence of taking panadol forte and an anti inflammatory over the years, she said that this was provided otherwise than on prescription, and I am not satisfied that this medication, not having been prescribed by a treating doctor, was necessary. No receipts or evidence of consumption was provided. No evidence of the travel expenses was provided, although I am satisfied that the plaintiff has been receiving treatment from Dr Harding, whose practice is in Brisbane some distance from the plaintiff's residence on the sunshine coast. There was a claim for chiropractic treatment with no receipts or reports. It seems to me that it is necessary to make some discretionary award here, and I award a total of $2,500 in relation to out of pocket expenses to cover the ongoing use of non prescriptive pain killers, and some travel for the purposes of Dr Harding's treatment.

26. There is a future out of pocket expenses claim which is particularised at $62 a week for 5 years. I am not satisfied that the evidence justifies the claim as particularised. I am satisfied, however, that the plaintiff will need to continue with the course of treatment now being provided by Dr Harding, which has been broadly endorsed in the report from Dr Keiller for the defendant. This course of treatment will, in Dr Harding's opinion, further reduce the plaintiff's level of disability. I award the sum of $3,000 for future out of pocket expenses, accepting that there will be a more intensive period of treatment in the immediate future than there has been for many years.

27. The plaintiff's claim for economic loss was originally particularised as an ongoing wage loss of $470 a week, together with superannuation entitlements of $44 per week for the balance of her working life, discounted by 40% on account of vicissitudes and the possibility of sporadic employment. No past loss was specifically claimed, although reference was made to the trial work as a shop assistant on a net wage of $330 in mid 1998. Leave was granted at the hearing to amend the statement of particulars to include a buffer claim from the date she left this employment to trial.

28. I am not satisfied, on all of the medical evidence, that the plaintiff suffers a substantial reduction in her economic capacity. She worked successfully in a range of jobs involving a degree of lifting and flexing as a child care assistant, nanny and dental nurse until she left the workforce to have her children. Although she says that she had difficulties, and gave evidence of being in tears at the end of a day due to pain, this is quite at odds with the notes from her then treating general practitioner, and his opinion. The only attempts to work since have been the course as a nurse's aide, which does involve very heavy lifting, and the week at the take away, where heavy duties were involved.

29. I accept that there are ongoing residual effects from this soft tissue injury, and that very heavy work, such as involved in lifting patients, is inappropriate. My findings on her economic capacity are broadly that of Dr Winstanley, who said in his report of January 1988 that she would be able to manage lighter type work activity, and Dr Harding, who said in May 1999 that she is fit for light duties, which he defined as

"...no heavy lifting (more than 10 kg) and no prolonged, fixed postures. I believe that Ms Buttriss is capable of working 8 hours per day, 5 days per week in this manner."

While I note that Dr Harding revised this opinion in his report of 15 October 1999 this was on the basis of Dr Sanderson's report, which I do not accept.

30. Ms Buttriss did not give any evidence about attempts to find work within her capacities. The owner of the take away where she did her work trial, who is a friend of the plaintiff's mother and the plaintiff, said that the plaintiff was a pleasant person to have in the shop, and noted that other workers in her shop had easily found other employment in the area when the shop closed. She said one person found employment in a video store, which is the type of work that would be well within the plaintiff's capacity.

31. The plaintiff's ongoing soft tissue injuries, while on Dr Harding's opinion likely to further improve, will mean an ongoing limitation in the plaintiff's capacity to engage in heavy lifting. Given the plaintiff's employment history, it is clearly impossible to arithmetically quantify her loss, and I consider, taking into account all that was said by the Full Federal Court in Fry v McGufficke [1998] 1499 FCA (26 November 1998) that this is an appropriate case for a modest buffer both in respect of future loss and such loss as there has been since June of 1998. In all of the circumstances I would assess this at $25,000, inclusive of interest for the period of past loss.

32. A Griffiths v Kerkemeyer claim was particularised at 200 hours of assistance provided by the plaintiff's family relating to transport to medical attendances and care for the plaintiff's children. I am not satisfied that the level of the plaintiff's accident related injuries has created a need for such services, and I find that the child care and other assistance that has been provided falls within the normal give and take of domestic relationships described by the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. I make no award under this head of damage.

33. This amounts to an award of $55,943 which I consider to be appropriate in all of the circumstances of the case and award. I will hear the parties on costs.

I certify that this and the eleven (11) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 12 November 1999

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Pamela Coward & Associates

Counsel for the Defendants: Mr J Harris

Instructing Solicitors for First Defendant: Sparke Helmore

Instructing Solicitors for Second Defendant: ACT Government Solicitor

Instructing Solicitors for Third Defendants: Tetlow Jansen & Doyle

Dates of hearing: 19 and 20 October 1999

Date of judgment: 11 November 1999