Angela Pozgay v E.J. O'Connor & Sons and Brian O'Connor [2000] ACTSC 59 (21 July 2000)

Last Updated: 16 October 2000

Angela Pozgay v E.J. O'Connor & Sons and Brian O'Connor

[2000] ACTSC 59 (21 July 2000)

CATCHWORDS

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

Del Ponte v Del Ponte (1987) 11 NSWLR 498

Griffiths and Kerkemeyer(1977) 193 CLR 161

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

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

Panuccio v Pannuccio (1976) 8 ALR 329 at 331

Ralevski v Dimovski (1987) 7 NSWLR 487 at 493

No. SC88 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 21 July 2000

IN THE SUPREME COURT OF THE )

) No. SC 88 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANGELA POZGAY

Plaintiff

AND: E.J. O'CONNOR & SONS PTY LTD

1^st Defendant

AND: BRIAN O'CONNOR

2^nd Defendant

ORDER

Coram: Master T. Connolly

Date: 21 July 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $156,412.35.

2. Defendant to pay plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the evening of 24 July 1996 in Pialligo Avenue just outside Canberra Airport in the Australian Capital Territory. The plaintiff was returning to her home in Queanbeyan from an evening art class in Canberra, and the defendant O'Connor, driving a company vehicle, failed to give way as he was leaving the airport. The intersection is now controlled by well illuminated roundabout, but at the time of the accident was a T intersection. The accident was of considerable force, and both vehicles were written off. Liability was admitted, and the matter came before me by way of an assessment of damages only.

2. The plaintiff sustained soft tissue injuries to her neck and back and a fracture of the sternum, and facial injuries involving a large wound over her chin, and a fractured jaw and teeth. She required surgery for her jaw, and has sustained facial scarring which, while subject to corrective cosmetic surgery, remains visible. The injuries and the consequent surgery to her face has also led to damage to her facial nerves, so that her smile is, to some degree, lopsided. These injuries have caused considerable distress to the plaintiff, who was 26 years of age when the accident occurred.

3. Ms Pozgay was born in February 1970 and educated in the Canberra region. At the time of the accident she was working in the Australian Public Service as an Administrative Services Officer Grade 5, and was studying part time at the University of Canberra for a degree in information technology. Although enrolled as a part time student, she said that in some semesters she carried a work load that was in fact the equivalent of a full time study load. She was anticipating completing her degree at the end of 1997.

4. The plaintiff was in good physical health at the time of the accident, and lead an active social and recreational life. She was working hard with work and study, and there were some family tensions due to a breakdown in her parent's marriage, and she had been attending a counsellor at the University of Canberra about these issues. It is also apparent from these notes that she had some concerns about her body image and weight gain before the accident.

5. She was taken by ambulance from the accident scene to the Canberra Hospital where she was kept under observation for some twelve hours. The 6 cm deep cut to her chin was sutured, and chest x-rays showed an undisplaced fracture of her sternum. She was bruised over her left eye and neck, and had a painful neck and back. She was discharged home to her mother's care, and seen on 27 July by Dr Sukumar, a general practitioner. In his report of 1 October 1996 he said that her injuries comprised :

1. "Acute whiplash injury to her cervical spine leading to severe neck stiffness, pain and pins and needles in both arms;

2. Soft tissue injuries to her back and neck;

3. Fracture of sternum;

4. 6cm incised wound over her chin;

5. 2cm wound in front of neck;

6. Painful uterine bleeding;

7. She was unable to open her mouth due to severe pain in her lower jaw;

8. Extreme anxiety, post traumatic stress, and inability to sleep;

9. Two broken teeth incisors and molar left lower jaw."

6. She was unable to get to her room, and was being cared for by her mother and relatives from a couch in the family room. Her general practitioner felt that she was unable to be cared for properly at home, and she was admitted to John James Hospital under the primary care of Dr Burke, a respiratory physician. She remained in hospital for some six days while her pain was attended to and her chest injury settled while she was monitored for any infection. During this admission an examination by Dr Vickers, a facio maxilliary surgeon, revealed that she had a small midline mandibular fracture. She underwent jaw wiring to enable this fracture to heal, and her jaw remained wired until 26 August 1996. During this four week period she was only able to consume fluids through a straw, and developed painful mouth ulcers, and required constant care from her family. She continued to experience neck and mid back pain, and was advised to undertake physiotherapy when she was able. She commenced this on 15 August, with her jaw still wired.

7. She attended Dr McGrath, a dental surgeon, on 5 September 1996 to have her teeth assessed, and he undertook a series of procedures over the next couple of months to restore her fractured teeth and make corrections to her bite consequent upon the wiring of her jaw. In a report of November 1996 her dentist noted that while the restorations seemed successful, it was possible that some of the fractured teeth could require crowning in the future. He said that the need for this would be apparent within the following five years. I note that as at the date of hearing there was no update report on this aspect of her claim.

8. Although she made steady progress in relation to her soft tissue injuries, her major concern increasingly became the consequences of her facial injuries.

9. She returned to work in early September on a graduated return to work, and a physiotherapist attended her workplace to advise on safe ergonomic work practices in light of her soft tissue injuries. It is apparent that the plaintiff is keen on her work and was enthusiastic about a return to work. She continued with physiotherapy in relation to her neck and back. Her efforts to return to work and study in the second half of 1996 seem to have been too much, and her studies suffered. She continued to attend on Ms Guggenheimer, a student counsellor at the University of Canberra, who reported that she was experiencing mood strings and pain which disrupted her studies. She told Ms Guggenheimer that she was distressed at her facial scarring, and was smoking heavily in social situations, and starting to use illicit drugs to decrease pain. Ms Guggenheimer in her report of 14 May 1997 diagnosed the plaintiff as suffering from Post Traumatic Stress Disorder and Pain Disorder flowing from the accident.

10. She was referred by her general practitioner to Ms Anna Crichton, a clinical psychologist, who has been treating her since November 1996. Her initial report in May 1997 confirmed a diagnosis of Post Traumatic Stress Disorder, and noted the plaintiffs elevated self consciousness due to her perception of disfigurement. She recommended ongoing counselling. The diagnosis has been further confirmed in a report from a general practitioner, Dr Nogrady, who practices at the Canberra University health centre, and who reported in April 1998. She noted that

"Her sensitivity about the cosmetic effect of her facial injuries, and the resultant lip numbness and lopsided smile, were additional factors contributing to her fragile emotional state."

11. It is apparent from the medical reports that the plaintiff became increasingly distressed during 1997 about the long term consequences of her facial injuries. She was evaluated by Dr Hodgkinson, a Sydney cosmetic plastic surgeon, for scar revision in April 1997. In his report of June 1997 he noted, "Since the laceration, the patient has undergone evaluation in order to seek advice about an asymettrical smile." She consulted Dr Raymond Garrick who concluded from electrophysiological studies, that there was a partial denervation of the orbicularis muscle on the left. He predicted that there would be further recovery of this muscle. I note that the original of this report, being a St Vincents Hospital nerve conduction study, said,

"There is electrophysiological evidence of a very minor partial denervation on the left with the compound muscle action potential on facial nerve stimulation approximately 20% smaller than on the right. It is possible that terminal sprouting will allow further motor recovery over a period of months but this cannot be guaranteed."

12. I take it from this that any improvement has now occurred, and indeed the plaintiff does acknowledge that there has been some improvement since the accident, but that the existence of a smile which is asymmetrical will now be permanent.

13. Dr Hodgkinson said in his report that despite revision,

"the patient will be left with a permanent scar. The scar revision would likely produce an improvement although there will never be a 100% improvement and the patient will still have a visible scar at a conversational distance. Her injuries will be permanent."

14. He carried out the procedure in February 1998 to revise her scar, and reported that it was successful as anticipated, but that some further resurfacing procedures would improve the outcome.

15. During 1997 and 1998 the plaintiff was having difficulties coming to terms with this condition, and began to have substance abuse difficulties for a period. She has now been clean for a considerable period, and exhibits a determination not to return to this usage. She was able to continue with her studies after the immediate disruption, and has now completed her degree. She has continued to work full time in the public service, receiving advancements, and is now on track to achieve her career goals of working in the information technology field. She now only suffers occasional episodes of back or neck pain, and it is appropriate to assess her on the basis of resolving soft tissue injuries alone. Her major concern remains her appearance. In her report of June 7 2000 Ms Chrichton said,

"Her facial injury, although much improved after the operation at the end of 1997, continues to make her extremely self conscious. She continues to perceive herself as disfigured. She is convinced that other people are as aware of her "disfigurement" as she is, and goes to some lengths to present her "better" side when meeting people. Her concerns are not a manifestation of vanity. She is convinced that she has a lop sided smile and that other people may see her as lacking in straightforwardness, honesty and integrity. An open "perfect" smile, which she says she had before the accident, reflects, in her view, integral honesty, integrity and good will. A "crooked smile" or `smiling with half my lip", conversely demonstrates, in her deeply held belief, a lack of those desirable qualities. Recently, when applying for a passport, she put herself through about half a dozen photographic sessions in order to hide her "facial deformity". Such a deeply held belief about herself demonstrates a significantly impaired sense of self image, and incomplete sense of personal identity and negative self appraisal."

16. The plaintiff tendered a photograph of her pre injury smile, and it is undoubtedly more perfect and symmetrical than at present. She does have a facial scar visible at conversational distance, and her smile is, due to the permanent nerve damage, no longer perfect and is asymmetrical.

17. 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'."

18. In this matter I assess the plaintiff on the basis of largely resolved soft tissue injuries, the fractured sternum and jaw and broken teeth, and the facial scarring and associated psychological sequelae. The task of assessing damages for facial scarring is notoriously difficult. As McTiernan , Gibbs, Stephen and Jacobs JJ noted (Panuccio v Pannuccio (1976) 8 ALR 329 at 331):

"there must necessarily be a high degree of imprecision and variability involved in the assessment of cosmetic injuries and the neuroses which so frequently attend them. A particularly wide range of differing responses will be evoked among those who have to assess the effect upon a victim of injuries such as these."

19. In that case Their Honours also stated,

"It is no doubt a truism to say that damages for cosmetic injuries, especially to the face and when suffered by a young woman, present difficult problems of quantification."

20. (at 331), expressing the longstanding approach that cosmetic injuries to a young woman might be expected to have a greater impact than the same injuries to, say, a male of mature years. As Kirby J pointed out while President of the New South Wales Court of Appeal, this approach risks an error on the basis of longstanding sexual stereotypes. He said (Ralevski v Dimovski (1987) 7 NSWLR 487 at 493):

"It might be suggested with persuasiveness, that a young man employed in manual work in Wollongong is less likely to be affected by cosmetic injuries than a young woman with a career in modelling in Paris. But equally some young men might be more sensitive to their appearance than some young women."

21. His Honour restated this point in Del Ponte v Del Ponte (1987) 11 NSWLR 498 at 504 where he said,

"some older girls and young women are not particularly concerned about facial appearance. Some older women and some men are particularly concerned about facial appearance. The point is that damages are to be assessed by reference to the particular claimant. They should not, in my view, be determined by reference to stereotypes whether based on sex or age."

22. Taking this into consideration, I am satisfied that this plaintiff, who is a young woman, is particularly concerned about her appearance. It is apparent from the counselling notes put into evidence by the defendant that this was the case before the accident, as the plaintiff was discussing with her counsellor issues of concern in relation to weight gain and body image. The plaintiff may well be a person with particular concerns about body image, but the tortfeaser, of course , must take their victim as they find them. In this case the victim is a person, coincidentally a young woman, who is particularly concerned about her appearance, and for her the consequences of her facial scarring and the impact on the nerve which controls the smiling process has been severe.

23. I am satisfied that in assessing this injury I must consider the impact of the injuries on the plaintiff- that is to say I must consider the subjective experience of the plaintiff, and not consider what would be the impact of the present injury on some objective "reasonable" man or woman. Although counsel for the defendant pointed out, quite fairly in my view, that the plaintiff remains an attractive young woman with only a faint visible scar and a slightly imperfect smile, I must assess the plaintiff on the basis of the impact these injuries have had on her. In Del Ponte v Del Ponte (1987) 11 NSWLR 498 Priestly JA said (at 506) that in assessing damages where cosmetic injuries are relevant the courts must:

"evaluate as best they can the effect of injuries on individual plaintiffs".

24. He noted Kirby P's discussion in Ralevski about societal attitudes to beauty, and said,

"If an individual has beliefs and attitudes about herself or himself based on beliefs as to other peoples reactions to that individual's appearance the fact that those beliefs arise from a discriminatory social context does not in any way diminish the existence of those beliefs and attitudes and the pain and embarrassment that may be felt by the individual as a consequence." (at 508).

25. I accept that the plaintiff's cosmetic injuries have had a profound effect on her, and I take this into account in assessing general damages. I accept the unchallenged evidence of the plaintiff's counsellor, clinical psychologist and general practitioner as to the Post Traumatic Stress Disorder associated with the injuries. I note that the defendant had the plaintiff examined by a psychiatrist but that no report was tendered, and I can draw from this the inference that such report would not have assisted the defendant's case (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). I accept that the plaintiff has largely recovered from the physical impact of the accident, and is making progress in relation to her psychological condition. She has completed her degree and is doing well in the workplace. She has undertaken further study in the field of international relations, and expects to complete a graduate diploma in development and administration next year, and it is her goal to find employment in the field of foreign aid, where I have no doubt she will be successful with her background in computing.

26. The plaintiff was accepted by the defendant, properly in my view, as a witness of truth throughout.

27. In relation to general damages, I assess the plaintiff in the sum of $75,000, taking into account all of the evidence, with $40,000 of this attributable to past loss, generating interest of $3,200, resulting in a total of $78,200.

28. Out of pocket expenses were agreed in the sum of $36,212.35, of which $33,040.02 has been paid by the insurer.

29. The plaintiff's claim for economic loss was particularised as a past loss claim for time taken off work due to the accident, and as a future loss claim based on the delay the accident caused her in completing her Bachelor of Information Technology degree, and consequently on a delay in her career advancement. Documents were tendered showing the total time the plaintiff has had off work since the accident, which result in a net wage loss to the date of hearing of $18,253.21. Counsel for the defendant accepts that the time off work recuperating from the major physical impact of the accident is attributable to the defendant, as well as time for further treatment, but points to evidence tendered in the plaintiff's case from her general practitioner at Canberra University, Dr Nogrady, who said,

"Had Angela not suffered the car accident, she would have completed her university course earlier than she has done and would only have about 50 per cent of the total number of days she took off work due to sickness over that time".

30. I am satisfied that, despite this comment, the bulk of the economic loss claimed for the past is accident related. However, I am satisfied that there would, on Dr Nogrady's view, have been some time off work in any event due to non accident related factors, and it is thus appropriate to apply some discount to the particularised claim. It seems to me that in all circumstances of this case an award of $15,000, inclusive of interest, is appropriate in respect of past economic loss.

31. In respect of future loss, the plaintiff's claim is for a closed period, based on her evidence that, but for the accident, she would have completed her degree earlier, and would have been qualified to move into specialist information technology type jobs at an earlier time. I am satisfied that prior to the accident she was doing well in her studies, and was undertaking full time employment and part time studies that at times involved an academic workload greater than the normal part time load. I am satisfied that the accident and its aftermath has delayed her progress, although she has continued and successfully completed her undergraduate studies, and is now continuing to advance in public service terms, and her actual wages have steadily grown. Nevertheless, I am satisfied that on the balance of probabilities she would have advanced further by now had she been able to complete her qualifications earlier, and that some award for future economic loss ought be made to recognise this. Some evidence was presented of jobs that the plaintiff thought she might be able to apply for now and would have been able to apply for earlier if she had been qualified. It seems to me that she has established a claim for a net loss of about $6,000 a year for two years, and I award the sum of $12,000 in respect of future economic loss. I include in this buffer for delayed completion of her qualification the claim that this has lead to some overpayment on her Higher Education Contribution Scheme fees.

32. There is a claim for future out of pocket expenses particularised in the sum of $15,000. The evidence supports some ongoing but diminishing need to physiotherapy, ongoing but also diminishing need for attendance on her psychologist, and future scar revision surgery. There is a chance, but only that, of some future dental work related to the accident. I am satisfied on all of the evidence that the plaintiff will incur future accident related expenses, for which I award the sum of $12,000.

33. I am satisfied that as a consequence of the accident the plaintiff in the period of about eight weeks following the accident required intensive nursing type care from her mother and family members and friends. She had her jaw wired and could only take nourishment by fluids, and was very limited in her movements. An award pursuant to the principle of Griffiths and Kerkemeyer(1977) 193 CLR 161 is therefore appropriate for this period. It seems to me that an award of $3,000 is appropriate in all the circumstances of the case, representing about three and a half hours a day of assistance over the eight week period at the present rate of $15.50 an hour.

34. This amounts to a total award of $156,412.35 which I consider to be appropriate in all of the circumstances of the case and award, with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 21 July 2000

Counsel for the Plaintiff: Ms Phelan

Solicitor for the Plaintiff: Meyer Clapham

Counsel for the Defendant: Mr Robinson

Solicitor for the Defendant: Abott Tout Harper Blain

Date of hearing: 27 June 2000

Date of judgment: 21 July 2000