Alison Rothery v Danica Gnjec [2000] ACTSC 100 (10 November 2000)

Last Updated: 18 January 2001

Alison Rothery v Danica Gnjec [2000] ACTSC 100 (10 November 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injuries - Aggravation of existing condition - No issue of principle

Fry v McCufficke (1998) 1499 FCA

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

VanGervan v Fenton [1992] HCA 54; (1992) 109 ALR 283

Wilson v Piesley (1975) 7 ALR 571

No. SC 271 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 10 November 2000

IN THE SUPREME COURT OF THE )

) No. SC 271 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ALISON ROTHERY

Plaintiff

AND: DANICA GNJEC

Defendant

ORDER

Coram: Master T. Connolly

Date: 10 November 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $120,349.23.

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 25 November 1996 at the intersection of Sternberg Crescent and Erindale Drive in Gowrie in the Australian Capital Territory. The plaintiff was the passenger in a vehicle being driven by her husband which was stationary at a roundabout, and was struck in the rear by the vehicle driven by the defendant. Liability was not in issue, and the matter proceeded before me by way of an assessment of damages only.

2. The plaintiff was born in England in 1964 and came to Australia as a child, settling in Adelaide. She left school during year 10 and attended secretarial college for some three years before commencing work with a local council. She continued with clerical type work for some years before commencing nursing training, qualifying as an Enrolled Nurse. She had commenced some university study for a time, but preferred the nursing training. She married in 1987, and she and her husband have two children. While she was a nurse she sustained a right shoulder injury lifting a patient in about 1990. She disclosed this when she later joined the Australian Public Service, as well as referring to "nursing and pregnancy related" neck and back pain.

3. In 1995 employment opportunities for her husband brought the family to Canberra, where he commenced duties as a security adviser in the Commonwealth Attorney General's Department. In January 1996, after the family had settled in Canberra, the plaintiff commenced duties in that same department in a clerical support role. Her duties in the commercial section were broadly that of a legal secretary, providing administrative and clerical support to the solicitors of the branch.

4. On the day of the accident the plaintiff was on her way to the first day of a three day first aid training programme arranged by her employer, and was being driven by her husband, in accordance with their usual practice of driving in to work together. She was looking in her handbag for something when she felt the car jolt following the impact. It is common ground that the collision was not one of great force, with damage to the family car being limited to a taillight. She has estimated the damage to one doctor as about $65. After details were exchanged they continued on their way, and the plaintiff attended the first aid course.

5. She says that she noticed mild pain in her neck and back that day and the next as she continued with her course. On the evening of 25 November she attended a local general practitioner, not her usual family doctor, who recorded that she had tingling in both of her hands at 4.30 pm. Dr Rososinski prescribed Panadeine, heat and rest. She continued with the course, but her symptoms remained, and on 27 November she presented to her regular family general practitioner, Dr September. In his report of 17 December 1996 to Comcare he says:

"She complained of pain at the back of the neck and shoulders which was increasing in severity. She was advised to support her neck in a soft collar and to take analgesics. X ray of the cervical spine was requested and she was given a certificate for 28 November to 2 December."

6. Dr September concluded after examination of the X-rays that the plaintiff had sustained a soft tissue injury to the neck, and he prescribed physiotherapy and anti inflammatories, and gave her some time off work.

7. She continued to experience symptoms, and from early 1997 came under the care of Dr Ette. She had previously consulted this doctor on other matters. In his report of 1 May 1998 he says that the plaintiff presented saying that she was being:

"treated by another medical practitioner, and that she was having physiotherapy twice weekly, but she was not satisfied with the treatment, and she wanted me to treat her injuries."

8. He treated her with physiotherapy, massage and analgesics over the course of 1997, during which time she was mostly at work. There was an unrelated operative procedure in February 1997 and a graduated return to work following this, but she otherwise was able to manage full hours, although she says that she was experiencing pain and discomfort.

9. In August 1997 she was examined by a consultant orthopaedic surgeon, Dr Wearne, for the defendant, and he found that she had sustained soft tissue injuries to her neck and lower back in the accident which were then still productive of symptoms, although she was then back to work. He recommended that she continue the massage treatment that she was then receiving.

10. Dr Ette referred the plaintiff to Dr Corry, a rehabilitation specialist, in early 1998. No report was tendered from Dr Corry, but I accept that the plaintiff attended and attempted his treatment, which involved neck strengthening exercises. This exacerbated her symptoms. Dr Wearne, in his report to the defendants of 6 May 1999 accepted that "some over vigorous treatment" led to a flare up of her condition, and she was off work for some weeks in late 1998. She recommenced work for three days a week from September 1998.

11. In November 1998 she was examined by Dr Hopkins, a consultant orthopaedic surgeon, for Comcare. He noted that there were no objective radiological signs of injury, which seems to be common ground, but accepted that the accident had caused mild ligamentous injury. He accepted that she was still experiencing symptoms, and recommended aqua aerobics to improve her fitness. He expected a gradual recovery, and resumption of normal hours of work, over about six to nine months.

12. In May 1999 Dr Wearne examined her, and accepted that her symptoms were still present and attributable to the motor vehicle accident. He felt that the recent flare up was due to the treatment. He noted however that:

"Despite her continuing symptoms, I can now find little the matter with Ms Rothery. She can manage a full range of movement of her neck and shoulders and there is no objective evidence of any nerve root involvement."

13. He advised that the plaintiff should be able to return to full duties.

14. At about this time, that is July 1999, the plaintiff applied for a substantive promotion from her then position of an Administrative Services Officer level 2 to and Administrative Services Officer level 3. Her application, which was tendered by the defendant, set out her qualifications and claims for the position, and she acknowledged that she felt that she could perform at a satisfactory level for this job at that time.

15. In September 1998 the plaintiff had changed general practitioners to Dr Brown, and in his report of April 2000 he says that she continued to experience symptoms. He said:

"The consistency of the symptoms and aggravating and relieving factors point to the diagnosis of fibromyalgia syndrome, which is a condition of heightened pain sensitivity. The work she was doing was exacerbating the condition, and after years of struggling with the job at great emotional and physical cost, it was decided to cease work and concentrate on getting the pain under control."

16. She ceased work in August 1999 on Dr Brown's advice, and has not worked at all since.

17. In a report tendered in the plaintiff's case by Ms Taylor, a clinical psychologist, she records a history that, at the time of ceasing work, "the main problems had been pains in the neck, right shoulder, elbow and wrist."

18. The key medical report for the plaintiff is that of Dr Brook, a rheumatologist, who examined the plaintiff in January 2000. Dr Brook took a history of pain in the neck, middle and lower back, shoulder, and arms, with headaches. He reported:

"My Diagnosis is one of fibromyalgia......My interpretation is that she had a extension acceleration injury of the spine in a motor vehicle accident on 25.11.96. This was not particularly severe and one would have expected it to settle down. There is a characteristic history of stiff discomfort in the back occurring in the few hours after the accident. She then developed fibromyalgia."

19. Dr Brook was cross examined on his diagnosis on two fronts. The first attack was on the assumption in his report that the plaintiff had previously been symptom free, whereas there is a report that the plaintiff developed some shoulder pain as a result of workplace strains in March 1996. The plaintiff in her evidence acknowledged that there had been problems with her work station, but claimed that her recollection was of soreness in her elbow. I do not make any adverse finding in relation to the plaintiff's credit in respect of this incident, but I do find that in March 1996 the plaintiff developed shoulder pain as a result of workplace strain and overuse.

20. In cross examination Dr Brook said that he was not aware of prior problems with the right shoulder, having been given a history of a sore right elbow which resolved. He acknowledged that, as she was presenting with a history of pain in the right shoulder which was said to be due to the accident, it would have been relevant to his diagnosis and opinion to have known of right shoulder problems before the accident.

21. A work station assessment report prepared by Ms Gunning, an occupational therapist and dated 26 March 1996 was tendered in the plaintiff's case. This states:

"Ms Rothery reports the presence of discomfort over the right shoulder with initial onset approximately three weeks ago. She reports the pain to increase over the duration of a day. The symptoms are currently present over the right shoulder blade in the trapezius muscle, radiating to the lateral aspect of the cervical spine on the right hand side."

22. This problem seemed to resolve, but the plaintiff acknowledged that medical records from her then treating general practitioner, Dr Ette, showed that she made complaints of a stiff neck in July 1996, and that in August 1995 she had been prescribed Feldene, and anti inflammatory.

23. The second attack came from Dr Brooks own description of fibromyalgia, which he said was a condition characterised by symmetrical complaints of pain, that is pain radiating equally to upper and lower limbs. He said that cervico brachial syndrome, which he described as a term synonymous with repetitive strain injury, was not characterised by such symmetrical pain presentation. He said:

"With fibromyalgia they have the lower part of the body is importantly involved. They complain of mobility problems and low back pain and buttock pain and proximal leg pain and it's usually really quite symmetrical, with cervico brachial pain syndrome it's sometimes modestly asymmetrical. I don't want to make too much of that but they don't have problems of mobility".

24. It is important to record in these reasons a passage of cross examination which followed this:

Q "Well, if you accept from me that the evidence given by Mrs Rothery before this court concerned some pain in part of her neck extending down to the area between her shoulder blades and some pain in her shoulder blades and arms, and no reference to any pain in the lower parts of her body or in the buttocks, would you agree with me that based on that history, her diagnosis should more properly be described as cervico brachial syndrome?"

A "You mean that's the case now?"

Q "Yes. No mention whatsoever of any pain in the lower limbs, or pain radiating from the buttocks or anything of that sort, purely upper limb disturbance?"

A "If that was the case, I would strongly consider such a diagnosis, yes."

25. It was put to Dr Brook that, accepting that the plaintiff's complaints of pain did not extend to the legs and buttocks, and thus that the diagnosis of fibromyalgia was inappropriate, and that the diagnosis of cervico brachial syndrome, or repetitive strain injury fitted the pattern of complaints established by the evidence, the plaintiff's condition might have arisen as a result of her work place practices even without the intervention of the motor vehicle accident. Dr Brooks responded, "If she hadn't had a motor vehicle accident I would think it was the most likely cause."

26. On all of the evidence in this case, and particularly in the light of Dr Brooks' remarks in cross examination, I am not satisfied on the balance of probabilities that the plaintiff has a condition of fibromyalgia caused by the motor vehicle accident. I am satisfied that the plaintiff had developed symptoms of cervico brachial syndrome resulting in pain in her right shoulder some nine months before the accident, and that there had also been complaints to her then treating general practitioner of neck pain, and prescription of anti inflammatories. I am satisfied that the accident, while relatively minor, caused soft tissue injuries and had an aggravating effect on her cervico brachial syndrome. I am satisfied that the plaintiff has been generally truthful, but has not advised doctors of the prior shoulder pain, and as a consequence a diagnosis of fibromyalgia was made by her specialist rheumatologist. I am satisfied that, presented with the facts as they emerged, Dr Brooks varied this diagnosis.

27. I accept that the plaintiff experienced pain and inconvenience as a result of the motor vehicle accident. I accept Dr Wearne's finding that her genuine attempts to undertake treatment and rehabilitation led, unfortunately, to some further aggravation when an over vigorous exercise programme was attempted.

28. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesley (1975) 7 ALR 571 Barwick CJ said at 575:

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

29. It seems to me that in all the circumstances of this case I should assess the plaintiff on the basis of a relatively minor motor vehicle accident producing a degree of soft tissue injury, but also aggravating a previously symptomatic condition of her right shoulder, which has continued to cause problems. I should also take into account the genuine treatment undertaken as a consequence of the motor vehicle accident which has further aggravated her conditions.

30. The principles to be applied in determining compensation in personal injuries cases have 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'."

31. In this case I assess the plaintiff on the basis of a relatively minor motor vehicle accident producing soft tissue injuries, and also aggravating a prior condition. I also find that the plaintiff's relatively satisfactory rate of recovery suffered a setback following some over vigorous exercise to her neck. I find that she continues to complain of pain in her neck and right shoulder and arms, and her lower back. I find that this limits her activities around the house, although she continues to undertake lighter home duties, and is able to do some light potting of plants. She acknowledged that she hangs clothes on the line. She continues to be able to walk, which is her main form of exercise, as well as use an exercise bike. She uses a computer at home, and picks her children up from school most days.

32. Mrs Rothery acknowledged that she had been on anti depressant medication for some time prior to the motor vehicle accident. This was fully disclosed to Ms Taylor, and I accept that the plaintiff has had a degree of aggravation of her depression as a consequence of ongoing pain resulting from the motor vehicle accident and its impact on her prior shoulder injury. Her present consumption of anti depressants seems to have been relatively stable since before the accident.

33. In relation to general damages, I award the sum of $33,000. I attribute $25,000 of this to past loss, reflecting the lessening impact now of the motor vehicle accident on her pre existing condition, resulting in interest of $1,980 making a total award of $34,980.

34. The plaintiff has had periods of time off work following the accident, culminating in her ceasing work in August 1999. I find that she ceased work on the recommendation of her general practitioner, and that she remained off work until she resigned from the Australian Public Service. No precise evidence was led from the plaintiff about the date of resignation, or the circumstances of any redundancy, but documents tendered by Comcare show that the last incapacity payment was made covering the period to 5 July 2000. The total amount of incapacity payments made to the plaintiff were $37,636.35.

35. Although I have found that the plaintiff's condition is not fibromyalgia, but rather a combination of soft tissue injuries sustained in the accident and an aggravation of previous conditions, I accept that her past economic loss to the date of resignation is properly attributable to the tortfeasor, and I award this sum. I should point out that the parties were unable to provide me with a breakdown of the net wage loss to the date of resignation and a Fox v Wood component, and it was agreed that, if I was satisfied that the time off was attributable to the accident, I should award the actual incapacity payment sum, which I have done, acknowledging that the Comcare payments are recoverable.

36. The plaintiff further claimed ongoing loss at the ongoing net salary of and ASO2 or ASO3 in the Australian Public Service, reflecting her salary levels before her resignation. The net weekly rate for an ASO2 was agreed to be $464, and the net weekly rate for an ASO3 was agreed to be $516. It seems to me appropriate to award this to date, which taking this from mid July 2000 amounts, at a rate of $500, acknowledging that her substantive rate was ASO2 but she had had substantial acting periods at the higher salary, amounts to five months at $2,000 a month, for a further award of $10,000. This amounts to an award for past economic loss of $47,636.35. Interest is only appropriate on the amount from July of this year, and amounts to $351, making a total award of $47,987.35.

37. In respect of the future, the claim was particularised on the basis of an ongoing claim to normal retirement age calculated at two thirds of her last salary point, acknowledging some residual capacity to work. The plaintiff has computer skills, which she still uses, and she acknowledged that she had undertaken a creative writing course since the accident. She also acknowledged that she had made some enquiries about re entering the workforce, probably on a part time basis, for a pathology laboratory, taking blood samples. Her prior training as an Enrolled Nurse would equip her well for this work.

38. I am satisfied on all of the medical evidence that the plaintiff will be able to re-enter the workforce. While I find helpful the evidence of Dr Wearne for the defendant, who takes the view that the plaintiff is now sufficiently recovered to return to all aspects of her prior employment, I do find that the plaintiff continues to experience symptoms. I also must be conscious of my finding that the plaintiff's present complaints relate to a pre existing condition aggravated by the motor vehicle accident, and that over time the impact of the motor vehicle accident is declining.

39. On all of the facts of this case, it seems to me that this is an appropriate case, bearing in mind the cautions set out by the Full Court of the Federal Court in Fry v McCufficke (1998) 1499 FCA, to award a global buffer in respect of future economic loss caused by this motor vehicle accident. An award of $25,000, amounting to one years net loss of income at her previous public service level, seems to me to be appropriate to cover a gradual return to full time employment over the coming year, and to cushion her for the declining impact of the motor vehicle accident for a limited period into the future.

40. A sum was also particularised in respect of loss of superannuation loss, based on an ongoing inability to work. As I have found that she will be fit for full time work in the near future, and that the extent to which the accident has contributed to her present complaints is diminishing and will resolve, I am not satisfied that such a claim is made out. While evidence was given that the plaintiff has resigned from the public service, the circumstances were not made clear, and I am not satisfied on the evidence that the accident was the cause of her resignation. I am not satisfied that any award beyond the buffer for future economic loss should be made in respect of superannuation.

41. Past out of pocket expenses were agreed to amount to $10,381.97, which I award, noting that of this amount some $2,000 has been incurred by way of home help.

42. A claim for future medication expenses was particularised as a buffer claim for $10,000. Given my findings as to the extent to which her present difficulties are accident related, this amount is not in my view justified. Her only treatment for pain relief at present has been over the counter medications. Dr Wearne has recommended a gentle exercise regime, and this seems appropriate. I am not satisfied, given the pre existing use of anti depressants, that any future amount for psychological care is appropriate. Taking all of the evidence into account I award a buffer of $2,000 for future medical costs.

43. A Griffiths v Kerkemyer claim was particularised in the sum of $4,667 for past care. This related to the assistance provided by the plaintiff's mother in January and February 1997 when she came over from Adelaide, and includes a return pensioner rate airfare. I note that this coincides with the time that the plaintiff had surgery for unrelated gall bladder problem, and he gave evidence that she required some time recuperating from that. I do not see this as an accident related claim. I have included in the out of pocket expenses an amount for home help. While the plaintiff and her husband gave evidence of his assistance around the house, she acknowledged that she still contributes, it seems to me that this does not amount to more than the normal give and take of domestic relationships referred to by the High Court in VanGervan v Fenton [1992] HCA 54; (1992) 109 ALR 283, and in the circumstances of this soft tissue and aggravation of a pre existing repetitive strain case I make no award under this head of damages.

44. This amounts to a total award of $120,349.32 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 10 November 2000

Counsel for the Plaintiff: Mr Wales S.C.

Solicitor for the Plaintiff: Hunt & Hunt

Counsel for the Defendant: Mr McDonogh

Solicitor for the Defendant: Abbott Tout

Date of hearing: 16 and 17 October 2000

Date of judgment: 10 November 2000

IN THE SUPREME COURT OF )

) SC No 271/1998

AUSTRALIAN CAPTAL TERRITORY

45. BETWEEN: ALISON ROTHERY

Plaintiff

AND: DANICA GNJEC

Defendant

ADDENDUM

Coram: Master T Connolly

Date of Order: 10 November 2000

Where Made: Canberra

Upon application by the defendant on 10 November 2000, Order 2 of the Judgment delivered on 10 November 2000 be changed from, "The defendant to pay the plaintiff's costs" to "Costs be reserved".

Jacqui Ralph

Associate to Master Connolly

10 November 2000