Vindya Shirley Thevar v Deborah Docherty [2000] ACTSC 42 (19 May 2000)

Last Updated: 16 October 2000

Vindya Shirley Thevar v Deborah Docherty

[2000] ACTSC 42 (19^th May 2000)

CATCHWORDS

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

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Griffiths v Kerkemeyer (1977) 193 CLR 161

No. SC 843 of 1997

Coram: Master T Connolly

Supreme Court of the ACT

Date: 19 May 2000

IN THE SUPREME COURT OF THE	)
	)	No. SC 843 of 1997
AUSTRALIAN CAPITAL TERRITORY	)

BETWEEN:	VINDYA SHIRLEY THEVAR
	Plaintiff
AND:	DEBORAH DOCHERTY
	Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 19^th May 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $94,276.34

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 the plaintiff says occurred on 15 May 1997 on Northbourne Avenue in Dickson in the Australian Capital Territory when the car she was driving was struck from behind by the defendant as she was slowing to avoid roadworks. Liability was not admitted on the basis that the police reports, which in the end were not put in to evidence, recorded a different date for the accident. The plaintiff was clear in her recollection as to the date, which was supported by other contemporaneous material, and in the end was not cross examined on that point, and I was not addressed on the issue of liability. I am satisfied that the accident occurred on the date and in the circumstances described by the plaintiff, and I am accordingly satisfied that liability has been established.

2. The plaintiff was born in Fiji in 1971 and came to Australia in 1989. She was married in 1990, and has two children, born in March 1991 and March 1996. In 1991 she commenced employment as a public servant in the Australian Capital Territory Department of Urban Services, and has remained in public service employment with the Australian Capital Territory Public Service since. In 1993 she commenced part time University studies at the University of Canberra, originally working towards a Bachelor of Arts in Administration. She has continued University studies, and has changed courses, and is now completing a Bachelor of Management, and has commenced studies towards a Bachelor of Laws.

3. On the day of the accident she had left her place of employment and was going to the University under approved study leave to attend a lecture. She says that she was slowing for roadworks when a car swerved in front of her, and as she slowed further she was hit from behind. She described this as a fairly substantial impact. She spoke with the other driver, and learned that she was also going to the University of Canberra, and they agreed to proceed and exchange details in the University car park. There was minimal damage to the vehicles, and the plaintiff says that she agreed with the defendant not to call the police at that point. They exchanged details in the University carpark, and the plaintiff says that the defendant offered to pay for any damage to the plaintiff's car herself rather than claiming on an insurance policy.

4. Ms Thevar says that she was still in shock at this point, and had some pain in the back of her head and neck mainly on the left side. She attended her lecture, but says she had some headaches, and then went to the cafeteria. She did not, as she had planned, do any library work that afternoon, and she then went to her husband's workplace at about 4 pm, and he drove her home. The next morning she woke with what she described as a very heavy and sore head and neck. She didn't go to work that day, but attended a local general practitioner, Dr Rowe. She continued to suffer headaches and neck pain over the weekend, but felt a little better than on the Friday, and attended for work on the Monday. She was then working in the Customer Services section of the Department, which involved counter duties and dealings with members of the public. She says she had headaches and was in pain on the Monday and the Tuesday, and by Tuesday afternoon her supervisor told her to leave, and assisted by driving her to her husbands workplace. Mr Edwards, who was then the Manager of Customer Services for the Department gave evidence confirming this. At about this time, that is 21 May, the plaintiff reported the matter to the police.

5. She also began atttedances on Dr Sukomar, whose reports have been tendered in the plaintiff's case. He placed her neck in a soft brace, and prescribed anti inflammatories and physiotherapy and remedial massage. He put her off work. A C T scan of her neck revealed no abnormalities, and by 1 July she was beginning a graduated return to work. She began to increase her hours, and was referred in November 1997 to Dr Corry for a further neck strengthening programme and exercises. In his report of April 1998 Dr Sukomar states that by his last review in March 1998 she was working four days a week for full hours, her sleep had improved, and the pain had settled "except for occasional occipital headaches." He concluded that the plaintiff:

" had suffered a major cervical whiplash injury in the accident on the 15^th May 1997. I am happy to report that she has progressed well. I expect complete resolution of pain within six months."

6. There are complete records of the plaintiff's time off work throughout the period to trial. As she commenced her graduated return to work in July 1997 she says that she deferred her studies for a semester, but she has been able to since return to these successfully. She has been substantively promoted since the accident, and has also worked for periods in higher duties in a more senior position. In August 1997 the plaintiff's husband opened a business called "Curry Kitchen" at the Glebe Park complex in Canberra. This had long been an ambition, and the business operated as a partnership. The plaintiff says that it had been the intention that she would do the books for the business, and also help from time to time, but would remain in full time employment as a public servant. She says that she was able to do the books, and help out on occasions, but due to her ongoing neck problems she was not able to work as often as she could, and the partnership employed persons to work on weekends and Friday nights when she otherwise would have planned to help out. The business failed in November 1998.

7. In his next report of July 1999 Dr Sukumar noted that the plaintiff had returned to full time work by February 1998, but continued to have some problems, and so was put back to limited hours, with Wednesdays off work. He said she was:

"advised to continue with remedial massage therapy on a weekly basis as this was found to help her neck stiffness and headaches."

8. He noted that she was back to full time work by August 1998, but continued with headaches and some dizzy spell, she was retained on some anti inflammatories, and also Tryptoanol, with remedial massage. Dr Sukumar concluded that the plaintiff's injuries had not yet stabilised, and recommended continued massage therapy. The plaintiff gave evidence that she originally commenced the remedial massage on the recommendation of her physiotherapist, but I am satisfied that this recommendation has been endorsed by her general practitioner.

9. The plaintiff was reviewed by Dr Chandran, a neurosurgeon, at the request of Dr Sukumar, in November 1998. He arranged an MRI scan, which he says in his report of February 1999 " showed a posterior bulge of the C5/6 disc with high signal at the posterior annulus suggesting an annular tear." He recommended ongoing physiotherapy, and a possible facet joint injection if the symptoms did not settle.

10. In October 1999 the plaintiff was involved in a second rear end collision, and from this date has had problems with lumbar pain. Although there has been some reference in the medical reports about low back pain after the accident the subject of these proceedings, the plaintiff's counsel stated that this was not claimed. There has also been an aggravation of her cervical problems.

11. The plaintiff was sent by Comcare to Dr Whittaker, a consultant rehuematologist, in May 1999, and his report was tendered by the plaintiff. His report states:

" In my opinion Mrs Thevar probably sustained a C5/6 disc annular tear with slight disc protrusion in the motor vehicle accident of 15 May 1997. I consider her ongoing neck pain to be primarily muscular in origin rather than a reflection of her underlying disc pathology..."

12. This is consistent with Dr Chandran's view in his report of February 2000 which, while noting the aggravation following the second motor vehicle accident, concludes " the overall assessment [is] that there is still, as before, soft tissue injury of a mild to moderate degree with probable involvement of facet joints, and to a lesser extent the discs at C5/6 and possibly C6/7 levels." Dr Whittaker was skeptical of the benefit of any future remedial massage.

13. A report was tendered from Dr Craven, a consultant neurologist, who examined the plaintiff for the defendant in July 1998, which is of course before the MRI scan revealed a degree of disc involvement. He concluded:

"The motor vehicle accident described resulted in soft tissue injuries to the cervical spine and, less certainly, the upper thoracic spine. Symptoms flowing from these injuries include discomfort in the neck, intermittent headaches and pain in the shoulders associated with variable weakness of grip. There has been reasonable improvement in these symptoms and I consider that this improvement will continue."

14. I am satisfied that, as a result of the motor vehicle accident the plaintiff sustained soft tissue injuries with a degree of disc involvement as described by Drs Chandran and Whittaker, and that there has been continuing, but improving, symptoms of soft tissue injury to her neck since the accident, with associated headaches.

15. 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 sim which will put the plaintiff, so far as in 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'."

16. In respect of general damages, I assess the plaintiff on the basis of soft tissue injuries with some disc involvement, which caused ongoing neck pain and headaches which amounted to a significant interference with the plaintiff's life in the period after the accident, including requiring a deferral of studies for a semester. I find that there was a gradual resolution of these problems up to the point that, by late 1999 before the second motor vehicle accident, they were minimal nuisance value symptoms. I am satisfied that the symptoms of the injury had by this time effectively resolved, but I accept that the disc pathology as revealed in the October 1998 MRI was caused by the accident, and has rendered the plaintiff more susceptible to future trauma. In respect of general damages, I award the sum of $37,000, with $30,000 attributable to past loss, generating interest of $1800, for a total award of $38,800.00

17. The plaintiff has received incapacity payments from Comcare of $13,175.46. I am satisfied that all of this relates to the time off work due to the disabilities caused by this accident I am satisfied that in addition she has lost actual wages (based on the difference between her wage and the reducing Comcare payments) of some $1,007. The plaintiff also made a claim in respect of the loss of earnings due to her inability to work as much as she would have liked in the family restaurant. This was particularised as a claim based on a substitute worker at a cost of $2145.50 until August 1998 and then at $250 a week until the business closed. I am not satisfied that the wages books establish this claim in full, as there can be a variety of reasons why persons were employed. Nevertheless, I am satisfied that the plaintiff has sustained some loss here, and, noting that the additional costs were to the partnership, and so only half attributable to the plaintiff, I would award the sum of $1000 in recognition of her inability to contribute to this venture as much as she would have liked. This amounts to an award of $15,182.78 for past wage loss. I note that the plaintiff was in receipt of funds from Comcare, so interest is only payable on the loss of income from the restaurant, and the difference between the Comcare payments and her actual wages. I award the sum of $15,500 in respect of past wage loss in order to recognise this limited interest component.

18. There is an entitlement to an award under the principle of Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 recognising that a person is entitled to recover damages representing the additional loss occasioned by having to repay the gross amount of an workers compensation or Comcare payment when the plaintiff only had the benefit of the net amount when it was being provided. Where a person has been on full invalidity payments a precise Fox v Wood component is usually provided. I was advised by counsel in this case that because the plaintiff had been involved in long periods of graduated return to work and working for less than full hours, no precise calculation has been made. I have no information as to marginal tax scales and the variation of her wages over time, and so am left with the need to make an award without full information. An award of $3000 pursuant to the principle of Fox v Wood would assume tax at a little under 25% on the Comcare amounts, and is the best I can do in all of the circumstances of this case.

19. Counsel for the defendant submitted that there should be no award for future loss, as the second motor vehicle accident has amounted to a novus actus interveniens. If the motor vehicle accident the subject of this claim had produced soft tissue injury alone, as was the view of Dr Craven who reported for the defendant without the benefit of the October 1998 MRI, there would be much in this submission. But I am satisfied on the evidence of Drs Chandran and Whittaker that the accident has caused some disc damage, which, although not primarily the cause of the symptoms, has rendered the plaintiff more susceptible to future injury. I accept that her career has developed strongly since her return to full time employment. Her present supervisor spoke well of her, but noted that there have been ergonomic arrangements made to minimise any potential difficulties. I accept that she has moved out of customer service roles to more senior policy and advising roles in the public service, and as her intention is to complete her legal studies, she can be expected to continue her career progression. I nevertheless accept counsel for the plaintiffs' submission that the accident has rendered her susceptible to future trauma, and that accordingly there should be some award, which he submitted should be a "modest buffer" for future income loss. I award the sum of $20,000 in respect of future economic loss by way of a global buffer.

20. Out of pocket expenses were claimed in the total sum of $14,035.34. A small part of this relates to payments made by the plaintiff to a Dr Wilson, who nowhere appears in the medical material tendered, and I can see nothing to relate this to the claim The defendant also objects to payments made to the Commonwealth Rehabilitation Service, but I am satisfied that these payments were related to the plaintiff's return to work, and are allowable. Although the defendant objects to the massage, pointing to Dr Whittaker's suggestion that it was not necessary, I am satisfied that the plaintiff has received benefit, and that this has been endorsed by her general practitioner. I accept that the amounts paid to date by Comcare in respect of some domestic assistance are properly attributable, and that the plaintiff's revised claim of $650 in respect of travel expense is reasonably put. I award the sum of $13,976.34 in respect of past out of pocket expenses.

21. I am not satisfied that the future out of pocket expenses as particularised are made out. I am satisfied that the effects of this accident in respect of soft tissue injuries are now mostly past, and the claim based on ongoing massage and physiotherapy is not justified. I award the sum of $3000 by way of a buffer for future medications, acknowledging that there is an increased susceptibility as a result of the disc pathology.

22. A claim pursuant to the principle in Griffith's v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 was particularised, but I am not satisfied on all of the evidence that it is made out for the past or the future. I have allowed some payments in respect of domestic assistance in the past out of pocket expenses. I am not satisfied on the evidence that any assistance that the plaintiff did receive from her now estranged husband went beyond the normal give and take of domestic relationships as described in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 and I decline to make any award under this head of damages.

23. This amounts to an award of $94,276.34 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 19^th May 2000

Counsel for the Plaintiff: Mr. Mildren

Instructing Solicitors: Barker & Barker Solicitors

Counsel for the Defendant: Mr Marshall

Instructing Solicitors: Barker Gosling, Layers

Dates of hearing: 17^th April 2000

Date of judgment: 19^th May 2000