Joanne Melissa Fawcett v James Robert Oliver [2000] ACTSC 70 (18 August 2000)

Last Updated: 17 October 2000

Joanne Melissa Fawcett v James Robert Oliver

[2000] ACTSC 70 (18 August 2000)

CATCHWORDS

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

Motor Accidents Act 1988 (NSW) s79, s72

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36

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

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319

No. SC 427 of 1997

Coram: Master T Connolly

Supreme Court of the ACT

Date: 18 August 2000

IN THE SUPREME COURT OF THE )

) No. SC 427 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOANNE MELISSA FAWCETT

Plaintiff

AND: JAMES ROBERT OLIVER

Defendant

ORDER

Coram: Master T Connolly

Where Made: Canberra

Date of Order: 18 August 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $20,320.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 24 August 1994 as the plaintiff was stationary at traffic lights at the intersection of James Ruse Drive and Pennant Hills Road in Parramatta in New South Wales. The plaintiff was driving a 1964 EH Holden, and her vehicle was struck from behind. Liability for the accident was admitted and the matter proceeded before me by way of an assessment of damages only. The matter proceeded to hearing and submissions on quantum on 22 May 2000, and I reserved my decision. On 21 June 2000 the High Court delivered its reasons in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 in which it held that in assessing damages in the case of an interstate tort an Australian court should apply the law of the place of the tort. I listed this matter for directions on 30 June 2000, and gave the parties leave to make further written submissions on the question of assessment of damages pursuant to New South Wales law. Submissions were received from the defendant on 3 August 2000 and the plaintiff on 14 August 2000.

2. The plaintiff was born in August 1971 and educated to the age of 15 at Maitland Girls High School. She left school part way through Year 10 and worked as a baby sitter on a part time basis for a few years. The plaintiff has strong religious beliefs, and over the years she has given considerable amounts of time to voluntary work going door to door spreading her beliefs. She met her husband, whom she married in 1993, during these activities, and they have had their first child, a baby girl, in October 1999. She has also worked part time as a waitress and receptionist at a motel, and more recently in retail sales for a mobile phone company.

3. The plaintiff's case is that in the accident she sustained soft tissue whiplash type injuries to her neck and right shoulder, and also a degree of disc damage, which became more symptomatic in February 1996 when she experienced neck pain upon stretching one morning. She claims she has had ongoing headaches. The defendant's case is that the motor vehicle accident caused minor soft tissue injuries to the neck only, and that the incident of February 1996 and any difficulties she has experienced since then are unrelated to the motor vehicle accident.

4. Following the accident she said that she exchanged details with the defendant, and then drove to her home at Cessnock. She says she experienced neck pain on the journey, and attended her local general practitioner. Dr Wakatama in her report of 14 May 1997 stated:

" Joanne Fawcett was seen on 24.8.94 following an accident that same day. Her car had been stationary when she was hit from behind. On examination she was tender over the right trapezius and the right paraspinal muscles in the neck and had no central tenderness. She also had pain on left lateral flexion and rotation. She was prescribed Voltaren 1bd for a whiplash injury. She has not been seen since for this injury so I have no idea of her current medical condition."

5. The plaintiff says she also complained of headache, but this is not recorded by Dr Wakatama. Her husband said in evidence in chief that she complained to Dr Wakatama of headaches, but did not maintain this position in cross-examination.

In her motor accident claim form dated 22 April 1996 the plaintiff said in response to the question about injuries sustained in the accident:

"That afternoon I had a sore neck, went to the Cessnock Hospital to get checked over. Had a stiff neck for a few days. Doctor felt it was whiplash."

In response to the question how do the injuries affect you she stated on the same form:

"Now I have very sore neck and having therapy for whiplash. Extremely sore."

In a statutory declaration signed 12 July 1996 the plaintiff said she had a sore neck on the day and continued:

"I was told there seemed to be slight whiplash but Dr felt I would be fine after a few days. For about 4 days my neck was stiff and sore, but because I was so preoccupied with my sister getting married that weekend, I just put up with the problem. During this time I moved to the ACT. Seemingly for approximately 1 year I was symptom free, until October 1995 I started suffering from constant headaches, radiating across the head and behind the head, interfering with my vision. I started suffering from the following from February 1996, along with the headaches:

a) neck pain radiating into right shoulder,

b) insomnia due to pain."

6. There are no contemporary medical notes to support the plaintiff's assertion that she continued to suffer neck pain and headaches in the period from the accident to late 1995. Her statement in April 1996 puts forward a contrary view. In the absence of such material, and given her husbands careful and, I am satisfied, truthful statements in cross-examination, I am satisfied that the statement made in the statuary declaration is broadly accurate.

7. In October 1995 she attended her general practitioner, who took a history of "headache for 3/52." This is inconsistent with her later claims of headaches persisting from August 1994. This note also recorded right shoulder pain. She was prescribed Nurofen at this time. In February 1996 she woke one morning and she and her husband heard a "crunching" sound when she stretched her arms in bed. She then collapsed in the bathroom, and her husband called in her general practitioner, who sent her to Woden Valley Hospital Accident and Emergency. The admission notes states:

"fainted/pain in head. Been feeling unwell for couple of days (has had stomach problems for past 6/12). Today c/o sore neck, headache associated with the neck, feeling unwell."

8. The plaintiff was referred by her general practitioner following this incident to the Gastroenterology Unit at Woden Valley Hospital for examination of her history of nausea and food intolerance, and an endoscopy procedure was carried out by Dr Pavli on 4 April 1996. He concluded that the plaintiff had non-ulcer dyspepsia and lactose intolerance. The plaintiff has not referred to this problem when giving histories to the various medico legal experts who have reported on her cervical pain and headaches.

9. I am satisfied that the plaintiff experienced neck pain after the accident, and that she presented to her general practitioner on the day and made that complaint. I am satisfied that, after a planned period off work for her sisters wedding she was then able to return to her normal employment, which at the time of the accident was a combination of waitressing and receptionist duties at a motel some 45 minutes drive from her home. She changed employment in early 1995 to work at a restaurant that was only some 10 minutes from home. I am not satisfied that this was due solely or predominantly to accident related problems. In May 1995 she moved to Canberra with her husband, who had obtained a full time position here. She says that because this was a good position she no longer needed to undertake paid employment, and she did not work in Canberra until some years later. She has continued with voluntary work over the years.

10. I am satisfied that she presented with some complaints of headache and shoulder pain in October 1995, and that in February 1996 she developed acute headaches and neck and right shoulder pain. It is the defendant's case that soft tissue injuries sustained in August 1994 would be unlikely to resolve and then become symptomatic in February 1996. Counsel for the plaintiff submitted that the medical evidence did support the presence of disc injury. In a report to the plaintiff's treating general practitioner of 11 November 1996 Dr Andrews, a consultant neurologist, referred to the February 1996 incident and said, "I suspect from the history that either a disc or facet joint had gotten out of place and this probably accounted for the exacerbation at that time." He referred her for a MRI scan. This was undertaken on 20 December 1996 and reported by Dr Stewart, radiologist, as "normal examination and lesion not demonstrated." Dr Searle, a consultant orthopaedic surgeon, examined this image and said in his report of 27 December 1997:

" The MRI on 20/12/96 confirms the slight loss of the cervical lordosis. There is a slight bulge of the C5-6 disc and there is also possibly slight darkening of the C2-3 disc. I note that these films are reported as showing no abnormality."

Dr Connors examined the plaintiff for the defendant, and he relied on the radiologist report in saying there was no pathology following the accident. His history was of continuing headaches from the time of the accident, which I find to be incorrect. He formed the view in his reports of 9 December 1999 and 14 February 2000 that the plaintiff continues to suffer from whiplash symptoms, but he said he could see no pathology to explain this.

11. Dr Searle expressed the view in his report of December 1997 that:

"The motor vehicle accident on 24/8/94 caused cervical ligament strains and possibly injury to the C2-3 and C 5-6 joints.

I note that in that report he stated that disc injury was, "more possible than probable".

Counsel for the plaintiff submitted that this evidence, which he said in an answer to a question from the bench was not challenged, was sufficient for me to be satisfied that I could make a finding that the plaintiff sustained a disc injury in the accident.

I reserved my decision on this matter, and in reading the medical evidence I note that in a later report of 26 June 1999 Dr Searle stated:

" I arranged for a second opinion on her MRI from Dr John Korber, and he feels that these films are probably within normal limits."

He concluded,

" My opinion is basically unchanged from that expressed in my report dated 27/12/97 though disc injury seems less likely. However the ligament strains, probably affecting the facet joints, cause significant ongoing symptoms and disability and these are permanent."

The only support for the presence of disc injury, being Dr Searle's December 1997 report, are in my opinion removed by this later report.

12. I am satisfied that the plaintiff in this accident did sustain soft tissue injuries to her cervical spine involving ligament strains, which produced some neck pain in the period after the accident. I am satisfied that this resolved, and that she was symptom free until October 1995 when she began to complain of headaches and internal problems quite unrelated to the accident. I am satisfied that her neck again became symptomatic following a stretching incident in February 1996. I am not satisfied that there has been any disc injury, noting that this is a suspicion raised by Dr Andrews and supported by Dr Searle in his first report as a possibility, but that Dr Searle has since retreated from this position.

13. I find that the plaintiff did not complain of headache until October 1995, some fourteen months after the accident, when her general practitioner took a history of headaches for three weeks. Since 1996 she has given histories to various doctors of ongoing headaches since the accident, but this is not consistent with the contemporaneous medical notes and her own claims in a statement to the insurer in April 1996. I am not satisfied that the headaches which she has complained of since late 1995 can be attributed, on the balance of probabilities, to the accident of August 1994. I note that Dr Danta, who in October 1998 took a history of constant headaches since the accident, which I find to be untrue, also noted regular pre accident headaches associated with periods. Dr Cassar, who saw the plaintiff in November 1997, took a history of constant headaches after the accident which did not stabilise until October 1995. I find this history to be quite incorrect, indeed the reverse of the picture which emerges from the contemporaneous notes of the treating general practitioners which shows the first complaints of headaches in October 1995.

14. There is a medico legal report from a clinical psychologist, Mr Petroni, which states that the plaintiff has a degree of covert mild depression and situational anxiety following the accident. He examined the plaintiff in September 1997, and took a history of ongoing headaches since the accident, which I find to be incorrect. I note that Mr Petroni observed that the plaintiff denies depression. No record of depression appears in her treating doctor's notes. I am not satisfied on this material, noting that Mr Petroni was working from an incorrect history, that the plaintiff suffers from psychological sequelae from the soft tissue injuries sustained in the accident.

15. 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'."

16. The motor vehicle accident which gave rise to these injuries occurred in New South Wales and accordingly, in assessing damages, I must apply the law of New South Wales, as set out in the Motor Accidents Act 1988 (NSW) (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36).

17. In relation to general damages, I assess the plaintiff on the basis of soft tissue injuries to her neck which had largely resolved in the months after the accident. On all of the medical evidence, and noting the incorrect histories in relation to the pattern of headaches I am not satisfied that the opinion of those experts who based their opinion on an incorrect history is sound (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642), I am not satisfied that the exacerbation of her condition, and the headaches which I have found began in late 1995, is attributable to the motor vehicle accident of August 1994. On these findings, the appropriate quantum of damages must be modest.

18. I must assess general damages in this case pursuant to the scale set down in s79 of the Motor Accidents Act 1988 (NSW) for accidents which occurred prior to 26 September 1995. This involves comparing the extent of the plaintiff's impairment with "a most extreme case". The principles to be applied are discussed by Beazley JA in Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 at 336-7. Taking all of the evidence into account I assess this case on the basis of non-economic loss at 14% of the maximum pursuant to the Act, generating damages of $16,220. In assessing these minor soft tissue injuries at 14% of the maximum pursuant to the Act I am mindful that this type of injury would, if it had occurred subsequent to 26 September 1995, fail to meet the threshold requirement for the award of damages for non-economic loss under the Act. Plaintiff's counsel in his written submissions of 11 August 2000, submitted that the defendant's submissions did not contradict the submission that the plaintiff's damages for non-economic loss would meet the threshold requirements of the Act. In oral submissions the defendant urged that a general damage award be "de minimus", and the defendant's written submissions merely referred me to the relevant provisions of the Act. I do not see this as any form of concession by the defendant.

19. In relation to out of pocket expenses, the details of the claim relate totally to expenses from 1996 to date. As I am not satisfied that the effects of the whiplash extended beyond the months immediately following the accident, and as the plaintiff made one attendance on a general practitioner only after the accident until October 1995, the out of pocket claim must be limited to that visit and some volatarin which was prescribed at that time. This amount is difficult to quantify, but an award of $100 would be appropriate. I make no award for future out of pocket expenses.

20. There is a wage loss claim particularised as a claim for $12,511.34. On the basis of my findings above I am not satisfied that the plaintiff in fact sustained any wage loss attributable to the motor vehicle accident in the period from August 1994 to late 1995. I find that at the time she was doing voluntary work for her church and part time work for a motel some 45 minutes drive from her home. I accept that she changed this job to a job closer to her home, but I am not satisfied that this was due solely to the minor whiplash injuries sustained. I accept her evidence that she chose not to do paid work on arrival in Canberra until she found employment as a mobile phone consultant. To the extent that her neck pain would have had an impact on her ability to increase her hours or engage in more vigorous activities in the months following the accident, I award a modest buffer of $4,000 inclusive of interest. As I am satisfied that the effects of the accident are now past, I make no award for future economic loss.

21. A Griffiths v Kerkemeyer claim was particularised on the basis of two hours assistance from her husband from February 1996. Under the Act an award for home care services may be made pursuant to s72. As I am not satisfied that the exacerbation of pain that she complained of from 1996 is accident related, I make no award under this head of damages. Even if I had been satisfied that the post February 1996 difficulties were accident related, I am not satisfied that the plaintiff established a need for such services which meets the statutory threshold of 6 hours per week.

22. This amounts to an award of $20,320 which I award. I will hear the parties as to costs.

I certify that the twenty (22) preceding numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 18 August 2000

Counsel for the Plaintiff: Mr D Ronzani

Instructing Solicitors: Wattling Roche Lawyers

Counsel for the Defendant: C. Hickey

Instructing Solicitors: Barker Gosling

Dates of hearing: 22 May 2000

Date of judgment: 18 August 2000