Sonya Kathryn Body v Penelope Wolfenden [2000] ACTSC 37 (12 May 2000)

Last Updated: 16 October 2000

Sonya Kathryn Body v Penelope Wolfenden [2000] ACTSC 37

(12 May 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - No issue of principle.

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

No. SC850 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 12 May 2000

IN THE SUPREME COURT OF THE	)
	)	No. SC850 of 1998
AUSTRALIAN CAPITAL TERRITORY	)

BETWEEN:	Sonya Kathryn BODY
	Plaintiff
AND:	Penelope WOLFENDEN
	Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 12 May 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $97,009.80

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 6 June 1996 on the Great Western Highway near Lithgow in New South Wales. The plaintiff was a passenger in a vehicle being driven by her brother which had just left her parents home at Lithgow and was heading for Thredbo, where she was planning to spend the winter ski season. The vehicle was sideswiped by the defendant. Liability has been admitted, and the matter proceeded before me as an assessment of damages only.

2. The plaintiff was born in 1968, and was educated to Year 12 at Hay in New South Wales. She commenced employment as a bank officer with the Commonwealth Bank as soon as she completed High School. She worked at Hay from 1985 to 1987, and then accepted a transfer to Narrandera. In 1990 she moved to the Northbourne Avenue Canberra branch of the bank to improve her career prospects. In late 1993 Ms Body suffered a series of difficulties, which involved the death of a close friend, her mother's illness with breast cancer, and her brothers jailing for the offence of rape, an offence which the family strongly believed he was innocent of. In January 1994 she moved to the Bathurst branch of the bank to be closer to her parents.

3. She came back to Canberra in January 1995 to the Belconnen branch, and she was one of a small number of bank officers who were selected for training as `personal bankers" or financial advisers. This involved the successful completion of a training course, and the obtaining of a Financial Advisers Licence.

4. In November 1995 she applied for long service leave and leave without pay for an anticipated period of 18 months. In her application for leave, which was tendered, she said that the leave was requested on the following grounds: "Due to personal devastation experienced in the last two years, I have suffered severe emotional trauma and stress which has impacted on my health and state of mind to the extent that I know that I need this 18 month break to re charge my batteries and improve my health. This decision has been prompted by an opportunity to travel."

5. She spent the first part of 1996 travelling around the north coast of New South Wales with a friend. Her brother was due for release from jail in June, and she planned a working holiday with him at Thredbo. She arranged employment with accommodation operators at Thredbo Village as cleaners, and also arranged staff accommodation and season lift passes at staff rates. The plaintiff and her brother had just left their parents' home to embark on this trip when the accident occurred.

6. The accident occurred only a couple of kilometres from her parents' house. She says that her brother was driving on the highway, at about the speed limit of 100 kilometres, and she bent down to get something from her handbag, which was on the floor in front of her. The defendant came out of a side street and hit the car on the plaintiff's side. The vehicle came to a halt about 100 metres down the road on the nature strip separating the lanes of traffic on the highway. The plaintiff's door was jammed, and she recalls that the seat belt had broken away at the floor. Police and ambulance officers attended the scene. The plaintiff says that she was given a neck brace, and taken to Lithgow Hospital.

7. The New South Wales Ambulance Service report that was tendered confirmed that the plaintiff had a cervical collar put in place, and records her chief complaint as lower back pain. The Lithgow Hospital Emergency Department report records that she complained of lower posterior chest pain with movement. She was x-rayed and no abnormalities were detected, and the examination report records a tick for "Skull/neck".

8. The plaintiff was prescribed painkillers and released that afternoon, and went to her parents house. The car was a write off. She contacted her employer at Thredbo, and was granted some time off from work. She says she was stiff and bruised and sore for the next couple of days, but on 10 June 1996 was able to travel to Thredbo and commence her cleaning job.

9. She says that she was a head cleaner, and that her boss, who knew of the accident, placed her on lighter duties, so that she was not required to lift heavy linen bags. She says she complained to her boss about pain, and obtained relief by way of massage from an osteopath at Thredbo. She says that she was given a more responsible job as an overseer of cleaners, inspecting premises to ensure that the cleaning was satisfactory. She says that she still did some work, such as cleaning mirrors, and experienced some pain to her chest.

10. She worked at this job until 14 October 1996, the end of the winter season at Thredbo.

11. She attended a general practitioner at Thredbo on three occasions during this time. The first consultation was in July, on a date which was not clear from the doctors notes. On that occasion she complained about a chest infection. She did not mention the motor vehicle accident. On 10 August she again saw the general practitioner, Dr Breathour, and on this occasion he recorded "MVA 6/52 ago -still pain right ribs". He then recorded ongoing complaints about coughs and a sore throat. He recorded complaints of pain at the T5-7 area, and sent her for x-rays. When he saw her again on 12 October he reported that the x-rays showed no fractures, but recorded ongoing complaints of pain in the thoracic area. He recommended a programme of swimming.

12. It was put to the plaintiff that the only medical records showed some complaints of back pain and a recommendation for a bit of exercise. She replied "That might have been why I didn't go back to him. I depended more on my masseuse because I knew I was in pain and because an x ray says there is no broken bones and a doctor thinks there's nothing wrong with you." I note that no report was served from the masseur, Mr Hoswell.

13. It was put to the plaintiff that no disability or pain would have been apparent to her flatmate, a Ms McCaig. She says that was because she hardly ever saw her.

14. After the ski season the plaintiff lived for a time at Michelago with her boyfriend, who was the son of her boss at Thredbo. She says she was terrible at that time, with fatigue and in pain all over, with neck and back pain. In January 1997 she returned to Canberra, and attended the Belconnen Chiropractic Centre, where she was treated by Dr Shane Collins. Dr Collins is a chiropractor, with appropriate qualifications, but is not a medical practitioner. He took a history of disturbed sleep since the accident and headaches, as well as fatigue and irritable bowel syndrome. He diagnosed fibromyalgia.

15. Her general practitioner referred her to Dr Speldewinde, a rehabilitation physician. In his report of February 1997 to Dr Foo he said "I would regard her as having a chronic pain disorder with fatigue and somatising features. Fibromyalgia was not evident today and I discussed these findings with her in some detail." He recommended Tryptanol to improve sleep and an exercise program. He said " This is indeed a challenging problem and I quite agree that it is difficult to get a handle on her current condition, whether there is over reaction or attributing it solely to the motor vehicle accident and as I discussed with her some things work for people some of the time and it would be reasonable to cease her chiropractic treatment at least for a few weeks to determine its worth.

16. In a further report of March 1997 Dr Speldewinde again rejected a diagnosis of fibromyalgia, and noted features of chronic pain disorder. He noted that she was planning to travel and so would not be undertaking an exercise program. In a report to Dr Foo in April 1997 he noted that " She has some puzzling behaviours and is keen to continue with chiropractic and massage therapy. It is not totally inappropriate but does not emphasise her own control over her pain problems etc.

17. The plaintiff had requested a return from her long serviced leave from the Commonwealth Bank, and resumed duties as a financial adviser on 24 February 1997. She says she experienced neck and back pain from standing and operating a computer, and it was excruciating. She says she could not concentrate. She took sick leave from 27 February to 28 February, then from 20 March to 27 March, and from 9 April to 17 April. On 18 April 1997 she commenced sick leave without pay, which she remained on until she was offered and accepted a voluntary redundancy package from the bank on 30 June 1998.

18. The plaintiff was referred to Dr Griffith, consultant surgeon, by her solicitors in July 1997 for a medico legal report. He took a detailed history, and noted " there are symptoms which are somewhat suggestive of involuntary embellishment." He diagnosed severe nervous shock, with persisting anxiety and depression, and deceleration injury with musculo ligamentous sprain of cervical, dorsal and lumbar spine. He noted that, unrelated to the accident, she seemed to have a giardia infection, which would explain her complaints of bowel problems. He also said " she claims to be suffering from chronic fatigue syndrome, however this is a matter of contention and conjecture in the medical literature. It is my opinion that it should definitely be a diagnosis of exclusion."

19. He said that the current impairment to the cervical and lumbar spine was 0%, but that there was significant psychological impairment, which he felt he was not qualified to quantify.

20. The plaintiff attended Dr Schlesinger, a clinical psychologist who reported in October 1997. He diagnosed a whiplash injury, and said this was "aggravated by some structural damage to her brain and its adenxa by the stresses and strains of inertial loading associated with the sudden changes in motion of her head". This diagnosis of closed head brain injury finds no support from any medically qualified person, and I am not satisfied that this is within the competence of this expert psychologist to diagnose. He felt her condition would "affect significantly Miss Body's ability to lead a normal life" but did not recommend further treatment.

21. The plaintiff was seen by Dr Burvill, consultant psychologist, for the defendant, in August 1999. He noted that she was then taking some anti depressant medication, and said that the plaintiff "on a longitudinal view, could be seen to have residual symptoms of a low grade level from a previous state of mild depression." He noted some discrepancies in the history he had taken in relation to past back pain and psychological stresses, and concluded, " I do not consider, even if she has residual symptoms of a previous level of low grade depression, that she currently suffers from any significant psychiatric disorder."

22. The plaintiff was also assessed by Ms O'Donnell, a clinical psychologist, who was first seen in November 1998, and then for treatment throughout the first half of 1999. Ms O'Donnell diagnosed the plaintiff to be suffering from Post Traumatic Stress Disorder arising from the motor vehicle accident. She noted that the plaintiff had been through a series of very stressful events in late 1993. She said that the combination of the loss of a friend, the illness of her mother and the jailing of her brother "have created a separation anxiety in Ms Body that was significantly exacerbated by the MVA and which then developed into Post Traumatic Stress Disorder."

23. Ms O'Donnell commenced a course of treatment, which she said in her report of 12 February 2000 were "reasonably effective to a point".

24. The plaintiff acknowledged that she may have been videoed engaging in normal recreational activities with her present partner and his children, and may have been observed laughing and behaving normally in such situations. No film was tendered.

25. The plaintiff has complained throughout of fatigue, sleeplessness and other stress related symptoms, which have been the basis of Mr O'Donnell's report. She acknowledged in cross-examination that she had made complaints to her general practitioner, Dr Foo, about such matters well before the accident. In March 1995 he recorded "stress last 12/12, tiredness, more so 2/12, sleep, 2 hours to fall asleep, nocturnal waking, wakes up tired." These are precisely the symptoms of which she complained after the accident. Regular attendances for headaches, nausea and upset stomach and bowel problems continue in these notes pre accident, and there is a reference between December 1995 and March 1996, the precise date not being clear in the notes, to the plaintiff complaining of being "stressed out."

26. Taking all of the evidence into account I am satisfied that the plaintiff sustained whiplash type injuries in the motor vehicle accident, which caused some pain to her back and neck. I find however that she was able to continue to work as a cleaner and then as an overseer of cleaners at Thredbo after the accident, and that she made no complaint on her first consultation with a doctor. I note that, in relation to her complaints of back and neck pain, her own consultant surgeon assessed a 0% impairment in 1997, which is consistent with the reports of Drs Weare and Bliss, orthopaedic surgeons who reported for the defendant in June 1999 and September 1997. I am satisfied that the effect of the motor vehicle accident on her back and neck has now passed, and was no longer disabling in 1997.

27. In relation to the plaintiff's psychological condition, I find on all of the evidence the assessment of Ms O'Donnell to be the most satisfactory, which seems not inconsistent with the view of Dr Burvill, although it seems that Ms O'Donnell did not have as full a history as the court has as to the plaintiff's pre accident condition. I accept that the plaintiff, who was under considerable stress when she left her bank job for the anticipated 18 month break, did experience further psychological stress following the accident, which may be described as low grade depression (Dr Burvill) or post traumatic stress disorder. The real difference here is in respect of the duration, with Dr Burvill finding that the plaintiff was recovered in August 1999, and Ms O'Donnell finding that she required treatment from October 1998 to July 1999. Ms O'Donnell did note that the plaintiff's stresses in 1993 made her susceptible to post traumatic stress following a motor vehicle accident of some significance, but she did not have the full history of the complaints to Dr Foo, and the reporting of symptoms to him that mirror those complained of after the accident, and that were attributed by her to the accident. I note that she says that the plaintiff had a significant diminution in her post traumatic stress in her report of February 2000. I am satisfied that the plaintiff has now made a satisfactory recovery from the accident, and that any current problems are no longer accident related.

28. 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'."

29. In relation to general damages, I assess the plaintiff on the basis of soft tissue injuries to her neck and back which were symptomatic for a time, but which did not preclude her from working as a cleaner in the aftermath of the accident. I find that the effects of the accident on her neck and back had substantially resolved by mid 1997.

30. I accept that the plaintiff has experienced a period of depression following the accident. I find that the misfortunes of late 1993 had rendered the plaintiff psychologically vulnerable, and that she manifested symptoms of depression and post traumatic stress disorder. I find that these matters have now resolved, and that the accident related effects have now ceased. I find that the plaintiff is now generally unrestricted by her accident related conditions, but that these did have an impact in the period after the accident, although not so as to preclude her from doing her work at Thredbo or to be noticeable to her then flatmate. I accept that her neck and back pain and depression was causing difficulties at the time of her attempted return to work in early 1997. I assess her general damages in the sum of $33,000 based on soft tissue injuries to her neck and back and associated depression and post traumatic stress disorder. This generates interest in the sum of $3800, for a total award of general damages in the sum of $36800.

31. In relation to economic loss, I am satisfied that the plaintiff suffered a loss of 4 days income due to her late start at Thredbo, in the sum of $292.74. I am satisfied that, although her plan had been to enjoy a full 18months of leave, she did seek to return to work at the Commonwealth Bank in February 1997, and she began to experience difficulties such that she used up her entire period of sick leave, and then went on sick leave without pay in April 1997. I am satisfied that this absence was accident related, and must sound in damages.

32. The plaintiff has particularised her claim on the basis of a total loss of earning capacity from the date of the accident to the date of trial, with a twelve-month buffer for future loss. I am not satisfied, on all of the evidence, that the plaintiff is still precluded due to her accident related disabilities from working in whatever capacity she should choose, whether as a bank officer, financial adviser, or cleaner. I am satisfied, on all of the evidence, that while she was precluded from working in early 1997, she was fully fit to work from an orthopaedic point of view by mid to late 1997, and her psychological condition would no longer fully preclude her from working by late 1998. The plaintiff's economic capacity for this period should be assessed on the basis of her earnings at $434.75 net as a financial adviser with the Commonwealth bank. Taking this from April 1997 to the end of 1998 would amount to some 92 weeks generating a loss of $39,997. I am satisfied that the plaintiff would from at least this time have been capable of a return to work on at least a part time basis, and I am satisfied that she would have continued to improve to the point that, by late 1999, the effects of the accident would have resolved so that she would be capable of working to her full pre accident capacity.

33. Counsel for the defendant pointed to the plaintiff's redundancy payment, which she took in June 1998, and which amounted to a sum of $23370 being calculated at 182.5 days of future pay from the date of resignation. Mr Harris argued that this must be taken into account in considering the plaintiff's loss of economic capacity. I accept that, while certain other components of the total redundancy package should not be taken into account, a pay out based on full daily pay for a period of days into the future should be taken into account for this purpose.

34. It seems to me that, taking all of these factors into account, an award for past economic loss of $45,000, inclusive of interest as a global award is appropriate for past economic loss, based on a loss of full time economic capacity which sounded in a loss from April 1997 to the end of 1998, adjusted for the pay out by way of redundancy, and taking into account a gradual return from part time work in the beginning of 1999 to a point where, by the end of 1999, I am satisfied that the plaintiff no longer suffers from any accident related economic loss. I make no award for future economic loss.

35. Out of pocket expenses were agreed arithmetically in the sum of $15,209.80. While doubts were expressed by various specialists, including Dr Speldewinde who saw the plaintiff on referral from her general practitioner, about the benefits of the ongoing chiropractic treatment, I propose to allow this claim in full. I will also allow in full the counselling that has been provided by Ms O'Donnell, even though I am satisfied that the accident related disabilities no longer affected the plaintiff's earning capacity from the end of 1999 and have now resolved. I am not satisfied that there is an accident caused need for any future medical attention, and I do not make any award under this head.

36. This amounts to an award of $97,009.80 which I award, with costs.

I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date:12 May 2000

Counsel for the Plaintiff: Ms A Tonkin

Instructing Solicitors: Lander & Co

Counsel for the Defendant: Mr J Harris

Instructing Solicitors: Sparke Helmore

Dates of hearing: 21 - 22 March 2000

Date of judgment: 12 May 2000