Dass v Rifai & anor [1999] ACTSC 67 (25 June 1999)

Last Updated: 6 October 1999

Dass v Rifai & anor [1999] ACTSC 67 (25 June 1999)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Two separate motor vehicle accidents - Aggravation of a previously symptomatic degenerative condition of her back and neck - Requirement to undergo fusion surgery - Further aggravation of that condition caused by the second accident - Whether a degenerative condition of the right hip was related to either accident - Chronic Pain Syndrome and depression - No issue of principle.

No. SC 107 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 25 June 1999

IN THE SUPREME COURT OF THE )

) No. SC 107 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARIA DASS

Plaintiff

AND: SAYED MAHMOUD RIFAI

First Defendant

AND: JAMES PURCHAS

Second Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 25 June 1999

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $183,039.50.

2. The defendants pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from two motor vehicle accidents. An interlocutory judgment was obtained in relation to the second accident, and liability was admitted in relation to the first, so the matter proceeded before me by way of an assessment only. Counsel for the two defendants indicated that it was not appropriate or necessary to seek to allocate any award of damages between the two defendants. The matter proceeded over three days in February 1999. At the conclusion of the hearing, counsel requested leave to file written submissions, which was granted, on a fairly generous time basis to accommodate the needs of the defendants' counsel, who was going overseas. The defendants' submissions were lodged in late March. Unfortunately, illness to the plaintiff's counsel meant that the plaintiff's submissions were not received until mid May 1999.

2. The plaintiff claims that she suffered significant injuries as a consequence of the two accidents. The first occurred on 9 June 1996. The plaintiff was driving in a southerly direction along Barr Smith Avenue in Bonython in the Australian Capital Territory when the first defendant drove his vehicle onto the roadway from a private driveway. The plaintiff claims that in this accident she sustained significant injuries, being a disc protrusion at C5/6 and a broad based posterior disc protrusion at L5/S1. As a consequence, a discogram was performed by Dr Chandran and a fusion procedure was performed at L4/5 and L5/S1. After this procedure had been undertaken the plaintiff was a passenger in a car driven by her husband on Athlon Drive in Tuggeranong in the Australian Capital Territory on 20 January 1997 when the vehicle was struck from behind. The plaintiff claims that this further aggravated her back and neck conditions. She now presents with generalised and disabling complaints of back and neck pain, claiming near total disability and the need for high levels of personal care. She claims that a further fusion procedure for her neck may be necessary.

3. The defendants' case is that the plaintiff had significant pre existing degenerative spinal changes and disc damage prior to the accident in her lower back at the levels of the procedure, and a long history of prior neck pain and symptoms consistent with disc damage in the cervical region. The defendants also claim that the plaintiff has a completely unrelated disabling condition, being a degenerative hip condition, which in itself would preclude the plaintiff from working.

4. The plaintiff was born in Poland in 1952. She completed her education to the equivalent of the Higher School Certificate, and worked in the Polish public service. She married her husband in 1979 and travelled with him to Australia, settling in Darwin, where their first child was born in 1980. The plaintiff did not work during this time. In 1983 the family moved to Canberra, and the plaintiff obtained employment with the Indian High Commission in their visa section undertaking clerical duties. She left that employment in 1986. The following year she obtained employment as a cleaner on a part time basis at Woden Hospital. She then obtained some further cleaning work in a supermarket as an employed cleaner, and also took some work on her own behalf as a contract cleaner. Her second child was born in April 1989, and she stopped work in February 1989.

5. The plaintiff gave birth to her third child in 1991, and in 1992 the family moved to Perth. The plaintiff's husband had been working as a public servant in Canberra, and he retired from the service. In 1993 he obtained a position as Administrator at a remote Aboriginal community near Halls Creek in the north west of Western Australia. The plaintiff stayed in Perth with the children while her husband was away. The plaintiff said that she did not enjoy living in Perth when her husband was away, and after his Halls Creek post he obtained another position in a remote community, this time on Cocos Island. In 1995 the family returned to Canberra, but the plaintiff did the move, as her husband was away.

6. In 1994 the plaintiff acknowledges that she had an accident while moving a freezer at her home. She says she felt

"...a sharp pain in my back".

7. She said that she saw her local general practitioner, and obtained relief with panadeine and anti-inflammatory pills. She was referred to a specialist, Dr Sikorski.

8. Dr Sikorski is an orthopaedic surgeon, and his report of 11 January 1995 was tendered as part of the plaintiff's case. He reported the facts of the domestic incident, and that the plaintiff was reporting that the pain was settling with Panadeine Forte and Brufen. He noted

"A CT scan showed a slightly asymmetrical disc bulge at the L4/5 level which was of marginal significance. There was a well defined postero-lateral disc protrusion at the L5/S1 level which was probably displacing the S1 nerve root on the left."

His diagnosis was

"Prolapsed intervertebral disc at the L5/S1 level giving left sided sciatica."

9. Later in 1995 the plaintiff says that when she was chopping wood for the fireplace she had pain in her right shoulder. She identified this as being in the right shoulder and trapezius region. She again saw her general practitioner, and obtained relief through painkillers and the use of a TENS machine. She says that she continued to chop wood as required and undertake all household duties and gardening by herself in the absence of her husband.

10. The plaintiff maintained that she had no prior history of neck pain. She has presented this history to all doctors who have reported in this matter, and maintained the position under prolonged cross examination. I am satisfied, however, that the plaintiff has made complaints of neck pain prior to the accident. Notes from her treating general practitioner in Perth show an entry of 13 June 1995 which reads

"Neck Pain/Back Pain P.Forte Difflam."

11. The plaintiff claims that following the first accident she noted immediate back pain, and also for the first time pain to her neck. The plaintiff attended her local Canberra general practitioner, Dr Somasundaram, on 25 June, some sixteen days after the accident. She complained of pain in her back and shoulder, and was found to be tender over the neck, low back and left shoulder. Her condition persisted, and her general practitioner noted degenerative changes to her neck, and referred her to Dr Chandran, a Canberra neurosurgeon.

12. In his first report to Dr Somasundaram he noted x rays of December 1994

"...indicating a longstanding problem in the lower back, as does the neck which shows degeneration at C3/4, 5/6 and 6/7 levels with disc narrowing."

He reported that fusion may benefit the plaintiff for her lumbar spine problems, and arranged for MRI scans. He also noted

"There is also an element of exaggerated response to the illness as shown by the extensive sensory loss and global weakness."

13. In a report to the plaintiff's solicitor on 12 September 1996 Dr Chandran noted that fusion was likely. He took a history of only minor back problems prior to the accident, and no neck pain. He reported that the plaintiff reported being

"...half dead with the pain, unable to cope with activities at home".

He noted that on examination he found her

"...moving with difficulty, showing extensive sensory loss in the left arm with global weakness not fitting any dermatomal pattern."

14. In his report of 13 August 1996 Dr Chandran had noted that

"The CT scan of July 1996 of the cervical spine shows a bulging disc at 5/6 and 6/7 level, more prominent at 5/6. A CT scan of December 1994 showed a calcification protrusion towards the left at L5/S1 level."

A discogram performed by Dr Chandran on 18 October 1996 showed

"...a painful disruption at L4/5 and no abnormality at L3/4. The L5/S1 level is quite narrowed and degenerate."

15. He concluded that she would require fusion at these two levels. I conclude that the disruption at L4/5 was related to the first accident, and the L5/S1 protrusion was pre existing. I find that at the L4/5 level the disc bulge noted by Dr Sikorski before the accident had become a rupture due to the accident.

16. On 25 November 1996 Dr Chandran performed a fusion at L4/5 and L5/S1. He recorded a normal post operative recovery. In a report of 13 February 1997 he referred to a review on 30 January 1997, which was after the second accident. He made no reference to the second accident. He said the plaintiff was

"...showing considerable improvement in her back pain since she had the operation. There was still some numbness in the left leg which had been present before surgery. She was walking considerably better but still using a stick because of numbness in the left foot."

17. Dr Chandran's next report to the plaintiff's solicitor was dated 16 June 1997. It referred to a review on 4 March 1997 when the plaintiff complained of pain in the back and left leg, and noted weakness in the left foot and a continuing need to use a walking stick. The report continued

"I then saw this lady on 5/6/97 when she reported for the first time a motor vehicle accident which occurred on 20/1/97. She was apparently travelling in the front seat of a car driven by her husband and the vehicle received an impact to its rear. She claims to have aggravation of the neck pain following this incident and also of the back pain as well."

18. Dr Chandran noted that the plaintiff complained of neck pain, and on examination

"...showed restriction of all movements to 25% of normal range. However, during the conversation she seemed to be able to move the neck to a wider range."

19. The plaintiff has continued to complain of constant back and neck pain and restrictions in movements. Dr Chandran in his report of 1 December 1998 noted

"On examination I found global weakness in the left upper limb with sensory impairment of the left arm extending to the face and left leg, not fitting an organic condition or dermatomal norm. Reflexes were brisk in the limbs and plantar response was flexor. The neck showed mild restriction of rotation and extension. In the lower limbs, straight leg raising was 30 degrees in each leg, but she was able to sit up with the knees straight and hips bent to 70 degrees. She was tender over the right sacroiliac region. Lumbar flexion was possible just beyond 50 percent of normal range. The right hip showed marked restriction of rotation and of abduction."

20. Dr Chandran formed the view that the plaintiff

"...continues to have problems in her spine, but has shown significant improvement in the condition in her back with radiological and clinical evidence of improvement. The straight leg raising which she exhibits is, in my view, non organic and she was able to sit up much better than the initial limitation of 30 degrees."

21. It is significant that Dr Chandran, the plaintiff's treating neurologist, has in successive reports to the plaintiff's advisers noted what he sees as discrepancies between the plaintiff's claimed range of movement and his observations, both in neck movement and straight leg raising tests. Dr Somasundaram, her general practitioner, also noted an exaggerated response.

22. The references to hip pain and degenerative change to the hip are of significance in this case. Dr Chandran noted that the plaintiff had not complained of hip pain prior to these accidents, and this has been her constant position in cross examination. However, the past medical records record such complaints.

23. The notes from her treating general practitioner in Perth record for 5 November 1993

"Arthritic R hip (past disloc) Surgan."

24. The plaintiff denied this repeatedly in cross examination, even after having her attention drawn to the note. She admitted that as a child in Poland she had dislocated a hip, and said that "maybe" she mentioned this to her doctor. The anti inflammatory agent Surgan is, I find on the evidence of Dr Kitchin something that would be prescribed for an arthritic painful hip. The plaintiff's explanation was that she had obtained this script for her husband, who was stationed at Halls Creek at the time, and who had a longstanding painful knee. In cross examination she maintained that, despite the presence of a medical centre at Halls Creek, she would obtain medications for him in this way. I do not accept this explanation.

25. There is a further reference in the Perth notes to a repeat of Surgan on 4 February 1994, with the note

"...pain worse with change of weather".

26. Dr Kitchin, who reported for the defendant on the plaintiff's hip condition, said in his evidence that the type of condition which he found in the plaintiff would indeed get worse with changes in weather.

27. The plaintiff's Canberra general practitioner recorded in his notes on 12 September 1995

"L/S hip pain".

28. In cross examination Dr Somasundaram was definite that he would have accurately recorded a complaint of left sided hip pain. I generally am sceptical of the plaintiff's claims of good health prior to the accident, and where her evidence is in conflict with the contemporaneous notes of her treating doctors, I prefer those notes. Given these findings, I also have difficulty accepting her complaints concerning levels of pain and disability, particularly, given the remarks of her treating general practitioner and neurosurgeon concerning exaggerated responses.

29. I am satisfied on all of the evidence that the plaintiff has had a longstanding history of hip pain. I note that Dr Kitchin in a report to the defendants of 12 August 1998 referred to an x ray of the plaintiff's hip of June 1998 which showed

"...clear evidence of pathology in the right hip."

He formed the view that

"The disability caused by the hip joint of pain and limitation of hip movement would be a contributing factor to her presently using a stick. These disabling features are likely to deteriorate in the future. The osteoarthritic condition of her hip is sufficiently advanced to justify total hip joint replacement arthrosplasty of the right hip. In relation to any future options for surgical treatment of her lumbosacral condition, it is my view and I am sure that her treating surgeons would concur, that the problem of the right hip be addressed by a total hip joint replacement arthroplasty."

30. Dr Kitchin reported that neither accident would have contributed to this condition. I note that the plaintiff was examined by a Dr Gillespie at the request of her solicitors, and she said that she told him she was there

"...because of Dr Kitchin telling about the hip, and that's why I'm here, and then I tell him".

31. No report was served from Dr Gillespie, and I am entitled to draw from this an inference that any report would not have assisted the plaintiff's case (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

32. Dr Chandran accepted that the plaintiff's hip condition was not related to the accident, and in his report of 1 December 1998 agreed that it is likely that the plaintiff will need a hip replacement in the future. He noted that the hip was causing her to walk in an abnormal fashion and use a walking stick, and he noted also that this would itself

"...produce some problem in the back as back pain."

33. On all of the medical evidence I am satisfied that the plaintiff had a symptomatic degenerative condition of her back and neck prior to the first motor vehicle accident. I find that this had led to a prolapsed intervertebral disc at L5/S1 before the first accident, as diagnosed by Dr Sikorski, probably as a result of the lifting incident in late 1994 and a disc bulge at L4/5. I am satisfied that the accident aggravated this condition, and that surgery was performed by Dr Chandran at L4/5 and at the site of this pre existing protrusion. I am however satisfied that the painful L4/5 disc injury, which precipitated the surgery, was accident related even though it occurred at the site of a pre existing disc bulge. I am satisfied that the second accident also aggravated her previously symptomatic degenerative condition which had been aggravated by the first accident. In addition, I find that the plaintiff has a degenerative condition of the right hip, unrelated to the accident, and itself productive of pain and disability.

34. The plaintiff has presented in court and to the various doctors who have examined her for medico legal purposes as being totally disabled, requiring assistance with all activities of daily living. Given the plaintiff's repeated denials of pre accident neck or hip pain, which is clearly refuted in the notes and reports, I have grave doubts as to her general credit as a witness on such matters. Her husband resigned from his position on Cocos Island after the second motor vehicle accident, and has been looking after her since. She has been assessed by Dr Saboisky, a psychiatrist, as suffering from depression and chronic pain. He put all her pain and disability down to the accidents the subject of this litigation. He expressed the view that the plaintiff may benefit from psychiatric care and pain management techniques. Dr Duke, a consultant psychiatrist who reported for the defendant, took a history of symptomatic degenerative disease of the spine prior to the accidents, but accepted that the motor vehicle accidents would have aggravated the plaintiff's condition. He noted Dr Chandran's observations of exaggerated pain response and non anatomical claims of sensory disturbance. He formed the view that the plaintiff was

"...behaving in a totally and permanently incapacitated way, when this would seem to be well beyond what is necessary."

He agreed that the plaintiff would benefit from pain management and psychiatric treatment. I accept that the plaintiff now presents with chronic pain behaviour, but I note that this is related both to the effects of the accident, and her underlying degenerative condition, as well as her unrelated hip condition.

35. 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'."

36. In this case the plaintiff sustained a significant aggravation of a previously symptomatic degenerative condition of her back and neck, which has lead to surgical intervention. I do not accept her version of a lack of previous symptoms. Despite this, she continues to complain of disabling pain and restrictions of mobility, and presents as being totally disabled. She also says that she has had no history of hip problems, contrary to the evidence of her previous treating doctors notes, and indeed denies a present problem in the face of radiological evidence of a disabling degenerative hip condition. Where the plaintiff has given evidence contrary to the contemporaneous notes of her then treating doctors, I do not accept her evidence.

37. In relation to general damages, I would award the sum of $65,000, reflecting the fact that the plaintiff does have ongoing neck and back pain, and has been required to undergo fusion surgery, but also taking into account the fact that the plaintiff's back and neck condition is degenerative and had been symptomatic prior to the accidents and that the fusion was performed at the levels of an accident related disc disruption and a pre accident disruption. I also take into account the fact that the plaintiff also has a disabling hip condition, which she does not seem to acknowledge, and that the impact of this on her general level of functioning must be disentangled from her overall presentation. I accept that there is a significant psychological consequence of her accident related disability, which has manifested itself in chronic pain syndrome and depression, which may be susceptible to treatment in the future. As the aggravation to the degenerative condition has now passed, I would assess two-thirds of this sum to be attributable to past loss, and award interest of $2,611, making a total award of $67,611.

38. Treatment expenses to date were agreed arithmetically in the sum of $53,428.50. This includes home help expenses to date. Although I accept that the plaintiff had pre existing symptoms, it seems to me that the frank disc injury in the accident led to the surgical intervention which involved fusion at two levels to including a pre existing disc disruption, and I am satisfied that I should award this sum for the past.

39. The plaintiff claims future medical expenses at the ongoing rate of $85 a week for pharmaceuticals for pain relief, as well as the possibility of future surgical intervention to the neck. In relation to future out of pocket expenses, I must try to award a sum which adequately reflects the accident caused needs, but not such a sum as to cover all the plaintiff's pre existing degenerative symptoms, both to the spine and the hip. I must also take into account the evidence that the plaintiff would benefit from future physiological treatment and pain management. I would award the sum of $20,000 for future treatment expenses.

40. The plaintiff has made a claim for economic loss from the time of the accident at the rate of 30 hours a week, based on net earnings of $333.80. Mrs Dass last worked in 1989, and did not seek to return to the workforce while she was in Perth. It is her evidence that, on her return to Canberra, she approached a former cleaning contractor for work, and was offered work after the accident, but was unable to take up this employment due to her accident related disabilities.

41. I have found that the plaintiff had a pre existing symptomatic degenerative condition of her neck and back, as well as a symptomatic degenerative hip condition. Dr Chandran, who was the plaintiff's treating neurosurgeon, and who had been given a misleading history of no back or neck pain prior to the accident, said in his oral evidence that a person with the degenerative changes giving rise to the symptoms recorded by Mrs Dass before the first motor vehicle accident would be likely to go on to continue to have episodes of painful incapacitating symptoms, and continue to need pain relief, particularly if she was to engage in any work involving stress to either her neck or back. I am not satisfied that the plaintiff was, before the accident, in a position where working for 30 hours a week as a contract cleaner, work that she had not engaged in since 1989, was realistic. I also find that the hip condition is by now such that it would, by itself, preclude the plaintiff from such work.

42. I am not satisfied that an ongoing claim for economic loss as particularised is made out. Nevertheless, I have found that the plaintiff has suffered a significant aggravation of a previous symptomatic condition, which must sound in damages for loss of economic capacity. Although the plaintiff had not been in the labor market for some years prior to this aggravation of her condition, her children were growing up and I accept her evidence that she would have liked to re enter the work force. I note that, as well as the cleaning work, she had worked for some time in Australia in a clerical role. I am not, however, satisfied that she could have worked as a cleaner with her pre accident disabilities.

43. I do not accept the plaintiff's claim that she has not, and indeed does not have a hip problem, and that all her mobility problems are due to the back condition. I accept generally Dr Kitchin's report on this matter. I thus find that her present unrelated hip condition would of itself preclude her from engaging in the type of remunerative employment, that is as a cleaner or cleaning contractor, that she says her accident related disabilities have deprived her of the opportunity of pursuing.

44. I am not satisfied that the plaintiff has any quantifiable ongoing economic loss. In relation to past economic loss, I must take into account her pre existing condition which would, of itself, have presented difficulties in working as a cleaner, and also the ongoing development of her hip condition, which has now developed to such an extent that it would itself prevent her from working. I also take into account the long period since the plaintiff was in the labor market, but I accept that she did make enquiries about resuming cleaning work after the motor vehicle accidents. It seems to me that this is a case where a modest but realistic discretionary award is appropriate, bearing in mind the remarks of the Full Federal Court in Fry v McGufficke [1998] 1499 FCA (26 November 1998). In relation to past economic loss I would award the sum of $30,000 inclusive of interest.

45. A Griffiths v Kerkemeyer claim was particularised on the basis of the plaintiff requiring constant care and attention. To the extent that this is based on her complaints and descriptions of need alone, I am not satisfied that it is made out. I note that Dr Scott in his report of 9 April 1998 formed the view that the plaintiff would require at least two hours, and perhaps four hours of domestic assistance. I note, however, that his report was premised on a history of no pre accident back or neck pain, which I find to be untrue.

46. It seems to me that, consistent with my findings that the plaintiff had a significant pre existing back and neck condition, aggravated and brought to disc disruption at one level by the first accident and stirred up by the second, and that there is also a separate and unrelated disabling hip condition, some allowance for domestic assistance is appropriate, but at a modest level. I note that housekeeping costs have been met in the out of pocket expenses to trial in the sum of $3,480. I would add to this the sum of $4,000 for past gratuitous care provided by Mr Dass and necessitated by the accident as a buffer award inclusive of interest. Taking all of the evidence into account I award the sum of $8,000 for future domestic assistance.

47. This amounts to an overall award of $183,039.50 which I consider to be appropriate in all the circumstances and award, with costs.

I certify that this and the fourteen (14) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 25 June 1999

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Vandenberg Reid

Counsel for the Defendants: Mr J Poulos QC and Mr J Harris

Instructing Solicitors: Phillips Fox

Dates of hearing: 9, 10 and 11 February 1999

Date of judgment: 25 June 1999