O'Connell (nee Pleming) v Riches [1999] ACTSC 24 (26 March 1999)

Last Updated: 7 October 1999

O'Connell (nee Pleming) v Riches [1999] ACTSC 24 (26 March 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Rear end collision - Soft tissue injury to cervical and lumbar spine - Pre-existing asymptomatic degenerative back condition rendered symptomatic - Post traumatic stress disorder - No issue of principle.

No. SC 98 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 26 March 1999

IN THE SUPREME COURT OF THE )

) No. SC 98 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PAULA MICHELLE O'CONNELL

(nee PLEMING)

Plaintiff

AND: SYLVIA ANN RICHES

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 26 March 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $167,036.17.

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 28 June 1988 in Canberra. Liability was admitted, and the matter proceeded before me by way of an assessment of damages only.

2. The plaintiff was born in 1966 and received her education at Wagga Wagga in New South Wales. She completed and passed her Higher School Certificate, but did not do as well as she had hoped. She enjoyed her schooling, and was very involved in sporting activities, playing netball, basketball, soccer and touch football, as well as athletics. She had no neck or back pain or restrictions in her movements. She had an aspiration to be a physical education teacher, but her marks were not good enough.

3. When she finished her schooling in 1983 she said that the employment situation in Wagga was not good, but she found a job working in a corner store and sandwich bar. She lost this job as she was about to turn 21, and at that time the local Commonwealth Employment Service office in Wagga was advertising vacancies at the new Grace Brothers store which was opening at the Tuggeranong shopping centre in the Australian Capital Territory. The plaintiff applied successfully for a sales position in this store, and moved to Canberra, sharing a flat with some friends from Wagga.

4. She continued to enjoy her sports in Canberra, playing A grade netball. On the day of the accident the plaintiff was a passenger in a car driven by her friend returning from a weekend visit to Wagga. The car stopped in a line of traffic on Adelaide Avenue, and was struck from behind by the defendant. Liability for this accident was admitted.

5. The plaintiff said that the seats in the car collapsed on impact, and the doors were jammed. A bystander assisted the plaintiff out of the vehicle. She says she was shaking. She returned to her flat that evening and was still upset. She had no medical treatment that evening. The next morning she said that she woke up with bad neck pain, and attended her general practitioner. She had some days off work in that week. She says that over the next few days her lower back started to ache, and she started to get headaches.

6. The defendant argued that there was insufficient evidence to support a finding that the complaint of low back pain first arose in the days following the accident. She has maintained in various histories given to doctors over the years since the accident that this pain arose in the period immediately following the accident, although her precise version has varied. A report from her general practitioner, Dr Cleary, dated 1 December 1988 states

"Miss Pleming first presented on 29 June 1988. She stated she had been involved in a motor vehicle accident on 28 June 1988. Her symptoms were pain at the right side of the neck with decrease of mobility in the cervical spine. There was bruising of the right upper arm. There was pain over the right thigh. Two days after the accident she also developed low back pain."

7. He ordered x rays and a CT scan of the cervical spine, which he considered to be normal. He referred her to some physiotherapy.

8. Dr Cleary, who remains in practice in Canberra, was not called for cross examination on this report, and his notes were not subject to a subpoena. I have a report from him as the treating general practitioner, in possession of his clinical notes, which states that low back pain developed two days after the accident. The plaintiff states that this is the case. This is sufficient for me to be satisfied to the requisite standard of proof that the plaintiff did begin to notice and complain of low back pain in the days following the accident, and I so find. This is important because a specialist who gave evidence for the plaintiff and was cross examined agreed that if the complaint of low back pain was first noted some months after the accident it would be less likely to be linked to the accident.

9. The plaintiff continued in her employment at Grace Brothers. She said that she quite enjoyed the work, and had been promoted and given some additional responsibilities, but she found that her neck and back would ache at the end of a long day standing. 1n October she was referred by her general practitioner to Dr McNicol, an orthopaedic surgeon. He noted ongoing neck and back pain. His report of July 1989 has a history that

"Her lower back pain became evident a day or two after the accident."

10. He noted that the x rays and CT scan appeared normal, and ordered an MRI scan. He said this showed

"...that she had a posterior bulge at the L4/5 level but normal signal intensity on the T2 weighted images. At the L5/S1 level there was loss of signal intensity described as being slight but consistent with disc degeneration. Her cervical spine showed no abnormality and all discs were well hydrated."

11. A discogram was performed at these levels in February 1989, and Dr McNicol formed the view and advised the plaintiff that she should undergo a fusion operation at the L5/S1 level.

12. The plaintiff was not keen to proceed to surgery, and she obtained a second opinion from Dr Dewey, a Wagga based orthopaedic surgeon. He examined her in July 1989, and formed the view that there was

"...minor disruption of the L5 S1 disc."

His said in his report of October 1989

"This lady has been involved in a road accident and when seen it was only approximately a year from the time of the accident. It is common to experience low back problems following this type of motor vehicle accident and it is common for the symptoms to persist for a fairly prolonged period. On the whole conservative treatment should be instituted and maintained for a very prolonged period since it is common for the symptoms to settle after time. I am aware that spinal fusion has been discussed with this lady but my feeling would be that her symptoms were not severe enough to warrant such major surgery at this stage. My indication for spinal surgery in a relative situation is back pain which makes work and everyday activities impossible and from my understanding of the problems in this situation that is not the case."

13. The plaintiff has not undergone surgery, and this decision has been supported by her medical advisers, including Dr McNicol.

14. The plaintiff applied for a job at Telecom in late 1988, and succeeded in obtaining a position. This was better paid than her sales job, and did not involve standing all day. She was required to undergo a medical examination, and she says that she was frank with the examiner about her back problems. As a result, Telecom terminated her employment after only a few days in November 1988. She was able to find employment at a slimming and figure toning salon at Woden in December 1988, and remained there until November 1989.

15. Ms Pleming developed a relationship in Canberra with a young man she had known at school at Wagga. He had qualified as a mining engineer, and obtained employment in Kalgoorlie in Western Australia in late 1989. The plaintiff, who had been working full time at the figure salon, accompanied him to the West, and found employment there on a full time basis at an engineering supply firm until April 1990. At this time the plaintiff's fiance was posted to a remote outback mining camp in the West, and she moved to Perth, where he was able to return for regular visits. She found work there at a delicatessen, where she worked on a full time basis from mid 1990 to the end of 1992, when she left to get married and return, with her husband, to Wagga. She worked as a manager in this position, supervising junior staff and doing paper work as well as helping customers when required. She said that she was able to direct her staff to do any heavy lifting of supplies. The plaintiff tendered a letter from the owner of the business from April 1992 which said

"During her time of employment she did suffer from back pain, however she did not take time off work as during her time of employment with me, her duties were different and she could sit and do paper work."

16. On her return with her husband to Wagga the plaintiff found employment at a sports store in the town. Her husband decided to abandon a career in mining engineering and found employment with a major trucking firm in a managerial capacity. He said that he made this decision because mining would have involved him in regular postings to remote locations, and would have made family life extremely difficult.

17. The plaintiff continued to complain of ongoing low back pain and regular headaches. She was referred by her solicitors to a Wagga psychologist, Mr Baynes, who assessed her in 1992 and 1993 and found that she had chronic pain and moderately severe Post Traumatic Stress Disorder. He also found that she had a phobic anxiety about travelling in a motor vehicle. His last report is dated April 1994. The plaintiff was examined in August 1997 for the defendant by Dr Anderson, a consultant psychiatrist. He noted ongoing neck and back pain, but formed the view that she does not currently suffer from post traumatic stress disorder. This is consistent with her description of her present condition. Dr Anderson did note that

"The only current psychiatric problem is that she has a phobic anxiety about motor vehicle accidents, manifested by high anxiety when she is a passenger in a motor vehicle. Nevertheless she states that this problem has improved considerably and it does not result in avoidance of anything or change in her lifestyle."

18. The plaintiff drives herself, but says that she is nervous when driven, and tends to "back seat drive". Her husband confirmed this, although both agreed that on the morning of the hearing they had driven from Wagga with the plaintiff as the passenger. They both agreed this problem was slowly improving.

19. The plaintiff's first child, a son, was born in October 1994. A second son was born in January 1997, and a third child, a girl, was born in October 1998. The plaintiff has maintained some part time employment during these years at Wagga sports stores and a bakery. She obtained each position through word of mouth, rather than advertising. She presently works part time at a supermarket at Junee, and drives there herself. The store is owned by members of her family, and she is working in a managerial role as well as serving customers when she is in attendance. She worked there from August 1997 to September 1998, and is expecting to return soon as her third child is able to be cared for, having been born in October 1998.

20. The most up to date report on the plaintiff's back is from Dr Caspary, an orthopaedic surgeon who examined her and reported in April 1998. He noted that

"At this stage she works 2 days a week in a supermarket that belongs to her brother. This is partly because she is bringing up a young family and partly because of ongoing lower back pain."

21. It is worth setting out his findings at some length. I note that the defendant has not tendered any orthopaedic reports although she was examined by Dr Hopkins at the request of the defendant in August 1997. I am entitled to draw the inference that any report did not assist the defendant's case.

22. Dr Caspary said

"At this stage she continues to have pain in the posterior region of her cervical spine radiating up into her occipital region and associated with severe headaches. The pain is not constant. It occasionally radiates into her right shoulder and when it does she is unable to lift her arm. She notes occasional whiteness and numbness of the right middle finger. The pain in her neck is worse with reading, sewing or when she is required to flex her neck. The symptoms in her neck are stable at this stage. She continues to have ongoing pain in her lumbosacral spine. The pain radiates into both sacroiliac regions and occasionally into her right thigh. It is not associated with parasthesia. The pain is not constant. It is worse with heavier housework or with sporting activities. Her husband helps her with the heavier housework when necessary. Her lower back symptoms are fairly stable at this stage. Prior to the accident she played tennis, touch football and netball. She has not played tennis but continued with touch football up to 2 years ago and continues also to play netball."

He concluded

"In summary, as a result of the motor vehicle accident of 28 June 1988 this patient has been left with the following problems:

(1) A severe soft tissue injury of her cervical spine with possible minor C6/7 disc damage.

(2) Mild right L4/5 disc bulge with possible damage to the L5/S1 disc.

She can expect to experience continuing pain in her cervical and lumbar spines. Operative treatment is unlikely to be required."

23. The prognosis of ongoing back and neck pain is shared by Dr McNicol in his last report of July 1995 and Dr Dewey in his last report of December 1996.

24. The plaintiff was also examined by Dr Brooder, a neurologist. He took a history of the low back pain first developing about a week after the accident. He concluded that the plaintiff sustained soft tissue injuries as a result of the accident in his report of April 1994. He noted a minor degree of degenerative changes in her cervical spine. It was put to him in cross examination that the origin of the plaintiff's ongoing problems lies in her degenerative changes to her spine. He agreed that if the plaintiff's accident related symptoms had settled and then re appeared after time, the symptoms would then be more attributable to the degenerative condition. I do not find, however, that the plaintiff has ever had a situation where her symptoms had resolved, and rather had had ongoing complaints.

25. I am satisfied that as a result of the accident the plaintiff, who had previously had no back or neck pain, has suffered soft tissue injuries to her neck and lumbar spine, and that a pre existing asymptomatic degenerative back condition has become symptomatic. I am satisfied that her present complaints are attributable to the accident. I am satisfied that as a consequence of the accident she suffers ongoing pain, and that she did develop a genuine post traumatic stress disorder condition, which has now settled. I am satisfied that she has an ongoing fear of being a passenger in motor vehicles, but that this is improving.

26. 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'."

27. In this case I assess the plaintiff, in relation to general damages, on the basis of soft tissue injuries which have also aggravated and made symptomatic an underlying degenerative disease process leading to some disc degeneration. I note that the earlier medical advice was that the plaintiff may have suffered frank disk injury in the accident which would require surgery, but this advice has since been revised. The medical opinion supports the view that the plaintiff will continue to suffer back pain . The most up to date expert opinion is that of Dr Dewey, who has been involved with the plaintiff since 1989, and who says in his report of August 1998 that the degenerative condition

"...will give intermittent back pain with some radiation of pain to the lower limbs but would be made worse by strenuous activity such as bending and lifting which will be eased by rest. The symptoms will persist for a lengthy period of time and may well be permanent as the degenerative changes slowly increase with increasing age. Continuous conservative treatment will be needed mainly by way of simple analgesic tablets but it is possible that an exacerbation may occur in the future that will be helped either by physiotherapy or the use of a light lumbar corset. It is very unlikely that surgical treatment will be needed in the future."

28. I take into account that this injury occurred when the plaintiff was a young woman, and that it has interfered with her sporting activities, although she has remained relatively active. She has managed to remain in full time employment until she commenced her family, and in part time employment since. I accept her evidence that there can be difficulties in lifting and otherwise caring for her children, particularly two active young boys. I accept that she has been able to cope with the ordinary activities of living with some assistance.

29. I take into account the psychological sequelae of the accident, which appears now to be subsiding, although a fear of travel remains.

30. Taking all of the evidence into account I assess general damages in the sum of $55,000, with $30,000 attributable to past loss, generating interest of $6,449, making a total award of $61,449.

31. Out of pocket expenses were agreed in the sum of $5,587.17, which I award.

32. The plaintiff particularised a claim for future out of pocket expenses at $50 a week for massage at $40 a week and pain killers at $10 a week. I am not satisfied that such a continuing claim is made out. I note that the expert medical advice is that conservative treatment is appropriate, with some pain killers such as simple panadol, and relief by way of physiotherapy when required by way of flare up. Dr Anderson suggested that some additional psychological counselling may be appropriate for the fear of travel, but this would only be a few sessions. It seems that this is a case for a modest buffer for future medical expenses in the order of $5,000, which I award.

33. The plaintiff put her economic loss claim by way of a buffer both for the past and the future. I must in assessing this note that the plaintiff has maintained more or less continual full time work up until she left the workforce to have her first child, and has maintained part time employment since. I accept that the accident did however lead to her losing her secure job at Telecom, which the evidence shows would have been at the annual salary of $16,255, and that her earning since have been at a more modest level. I accept that there have been restrictions on the types of employment that she could undertake to date, and that these restrictions will continue.

34. The medical evidence supports the proposition that she has been able to undertake full time work, and will in the future. Dr McNicol in his July 1995 report stated

"I think sitting positions with reading, working at a desk would probably aggravate her neck symptoms. I suspect her back symptoms are in keeping with those that are generally described to the adult population and should not prevent her from engaging in some form of sedentary occupation."

35. Dr Brooder in his report of April 1994 expressed the view that she should avoid activities that require prolonged posturing of her head or bending and lifting, and said

"As a result of her continuing symptoms and disability Mrs O'Connell's future work capacity will require modification such that she can work within the limits of her disability."

36. In his last report of May 1998 he expressed the view that the plaintiff would be unable to undertake

"...any form of full time work activity that aggravates her symptoms......It would be appropriate that she should continue working on a part time basis. It would appear that she is capable of working 2-3 days each week."

37. Dr Dewey in his report of August 1998 expressed the view that she

"...will be able to undertake light work such as supervisory secretarial work."

38. Dr Caspary in his report of April 1998 said

"She would be fit for moderate work and would be borderline fit for her pre injury work as a sales assistant. She is fit to work full time at light duties at this stage."

39. I am satisfied from all of the medical material and from the evidence of the plaintiff that, while she at present faces the dilemma of juggling work and family responsibilities, she is capable of working in a full time capacity, as she did for many years, although she is limited in the type of activity that she can undertake. The plaintiff has been fortunate in being able to obtain positions where she is given supervisory responsibility so that she can avoid heavier duties. The plaintiff impressed me as a truthful witness, and as someone who is doing her best to get on with her life. It is understandable that she has had no difficulty in obtaining employment with a degree of supervisory responsibility.

40. I am satisfied that the plaintiff has nevertheless been limited in her career options, and that this limitation will remain into the future, and should sound in an award for economic loss for the past and future. Counsel suggested that a guide to an appropriate buffer would be to compare her actual earnings to average weekly earnings. I am not satisfied that this is appropriate in the circumstances of this case. It seems to me that this is a case where, taking into account what the Full Bench of the Federal Court said in relation to global buffer approaches to damages in Fry v McGufficke [1998] 1499 FCA, I must do the best that I can in relation to a global buffer, and I assess past economic loss in the sum of $25,000 inclusive of interest. For the future, and taking a similar approach, I award a buffer of $45,000. In assessing economic loss I have taken into account any loss of superannuation entitlements for the past and the future.

41. A claim pursuant to the principles of Griffiths v Kerkemeyer was particularised at 7 hours a week from the date of the accident and continuing. There was medical evidence that the plaintiff has needed assistance to cope with heavier household tasks, and the plaintiff gave evidence that this was the case, and that she was assisted by her husband, or her mother, and by the employment of a cleaning lady. Counsel for the defendant did concede that, if I found her present condition to be accident related, some award would be appropriate. I am not, however, satisfied that the claim is made out for seven hours a week over the whole of the past 11 years. Taking account all of the circumstances, it would seem to me that I must take a discretionary buffer approach to the question of Griffiths v Kerkemeyer damages, taking into account the nature of the plaintiff's injuries and the normal give and take of domestic relationships referred to by the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. I would award $15,000 for past loss, inclusive of interest.

42. In relation to future assistance I note that the plaintiff will continue to require some assistance in heavier tasks, and also that the plaintiff's underlying degenerative state will grow in its impact. I would award a discretionary sum of $10,000 for future assistance.

43. This amounts to a total award of $167,036.17 which I consider to be appropriate in all of the circumstances.

I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 26 March 1999

Counsel for the Plaintiff: Mr H Marshall

Instructing Solicitors: Watling Roche

Counsel for the Defendant: Mr R W Seton

Instructing Solicitors: Deacons Graham & James

Dates of hearing: 1 March 1999

Date of judgment: 26 March 1999