Louise Margot Heath Thompson v Patrick Evanoss [2000] ACTSC 73 (25 August 2000)

Last Updated: 17 October 2000

Louise Margot Heath Thompson v Patrick Evanoss [2000] ACTSC 73

(25 August 2000)

CATCHWORDS

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

Fry v McGufficke [1998] 1499 FCA

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36

Malec v J.C.Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

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

Wilson v Peisly (1975) 7 ALR 571

No. SC 942 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 25 August 2000

IN THE SUPREME COURT OF THE )

) No. SC 942 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LOUISE MARGOT THOMPSON

Plaintiff

AND: PATRICK EVANOSS

Defendant

ORDER

Coram: Master T. Connolly

Date: 25 August 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $145,562.43.

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 3 February 1996 on the access road to Brisbane Airport in Queensland. Liability was not in issue, an interlocutory judgment having been entered on 20 February 1997, and the matter proceeded before me by way of an assessment of damages only. The hearing commenced on 21 February 2000 and was then adjourned due to the unavailability of a witness, the plaintiff's former fiance, who was at the time serving on peace keeping duties with the Australian Army in East Timor. The matter resumed before me on 1 August 2000.

2. The plaintiff's claim is that she sustained soft tissue injuries when the taxi in which she was a passenger hit the back of another vehicle. This was a relatively minor incident, the taxi driver being stationary behind a stationary vehicle, and then proceeding on the assumption that the car in front was moving, when it was not. The plaintiff developed the usual soft tissue injury symptoms, but after a period off work was able to continue, with she says some difficulty, with her employment as a flight attendant on Qantas domestic aircraft. She exacerbated this soft tissue injury in early 1997 while pushing a food service trolley during her employment. The soft tissue injuries have now settled, but during the early part of 1997, when she says she was suffering from the effects of the motor vehicle accident, and was stressed about its impact on her future employment, she developed symptoms of a quite serious psychiatric condition, bipolar disorder. She has required periods of intensive hospitalisation since that time, and therapy, including electro convulsive therapy on a number of occasions. She was able to return to the workforce, though not as a flight attendant, but has suffered relapses of her condition. Her prognosis is that she will continue to experience symptoms, but should remain symptom free if she maintains a medication regime.

3. The plaintiff acknowledges that the condition of bipolar disorder was an underlying condition which would have come to symptoms regardless of the accident at some time in the future, but contends that the condition was asymptomatic, and that the pain of the soft tissue injuries brought about stress and depression which triggered the underlying condition, and brought about the significant symptoms from April 1997.

4. The plaintiff was born in 1974 and educated to year 12 level in Adelaide. She undertook a range of work on leaving school, including partial completion of a hairdressing apprenticeship and work for a relationship consultancy, before commencing employment in August 1994 with National Jet Systems, which I was told is the company which supplies flight attendants for Qantas domestic air services. At the time of the accident she was living in Canberra, and was regularly working on Canberra-Brisbane services. She had worked on a flight to Brisbane, and was a passenger in a taxi going from the airport to her city hotel when the accident occurred. She says that she had two minor motor vehicle accidents while a student, and took an overdose of pills when a relationship broke down when she was about 15. Her mother said this only involved taking two or three sleeping pills, and an attendance at the family general practitioner. Her health was otherwise fine, and she was fit and active. I am satisfied that there were no residual symptoms from any earlier motor vehicle accidents by the early 1990's.

5. She described the duties of a flight attendant as sometimes involving heavy work pushing food trolleys and lifting, but said she enjoyed the work, and had no difficulties with it. She described being jerked in her seat in the accident, and did not notice any pain straight away. The taxi proceeded to take her to her hotel. She says that the next morning when she woke up she noticed pain in her neck, and the next day on her return to Canberra she attended her general practitioner. In a report of 26 November 1996 Dr Wald stated that she examined the plaintiff on 5 February 1996 and found limitation of rotation to the neck and some muscle spasm, and mild tenderness at L4 and L5. She prescribed analgesia and physiotherapy for soft tissue injury, but noted that improvement was slow, with continuing muscle pain and difficulty with sleep. Dr Wald noted, "She also became quite frustrated with her inability to return to work and concerned about losing her flying certification." She continued to treat her through to May 1996.

6. The plaintiff was off work for two weeks, then returned to work on graduated duties, but was back to flying after a month or so. She said that the neck and back pain was "bearable" but she had some difficulties with moving trolleys and lifting bags.

7. In October 1996 she accepted a transfer to be based at Darwin, in order to be with her then fiance, Mr Magee, who is an Army Officer, and was himself being transferred to duty in Darwin. They had met in Canberra in late 1995. He was posted to the United States in early 1996, and he learned of this accident over the phone. He returned in May 1996 to duties in Brisbane, and saw the plaintiff when she was in Brisbane on flight duties. He said that she was "up and down" with back pain during this time. The two of them drove from Canberra to Darwin via Melbourne and Adelaide in late 1996. He said that she had some difficulties with this trip.

8. She says that she experienced a recurrence of back pain in early 1997 arising from pushing a trolley at work. The plaintiff's recall of events is not clear, and she was not criticised for this, given the treatments she has had subsequently. Mr Magee said that his recollection was that this occurred in January 1997, and that after this she experienced more pain and took more time off work.

9. She was seen by Dr Boyce, a Darwin general practitioner. In a report of 21 July 1997 Dr Boyce says that the plaintiff was first seen at that practice on 20 January 1997. The report says,

"She gave a history of upper shoulder and mid back pain which was aggravated by pulling and pushing trolleys whilst on duty as a flight attendant. She gave a history of being involved in MVA in February 1996 and had claimed workers compensation. She has been experiencing recurrent pain in her back since the accident."

10. Dr Boyce prescribed voltaren and physiotherapy for soft tissue injuries, but said she responded poorly to physiotherapy,

"and continued to complain of tender areas around neck and mid to low back suggestive of ongoing inflammation of fibromyalgia consistent with past whiplash injuries. She was prescribed Tryptanol 10mg which is an antidepressant with pain killing properties. Antidepressants are used for chronic pain when there is poor response to anti inflammatory drugs and physiotherapy."

11. Dr Boyce concluded,

"I believe Louise suffered whiplash injuries to her back due to MVA in February 1996. These injuries were aggravated by certain duties as a flight attendant. She may continue to have recurrence of back pain in the future and will require treatment as the need arises."

12. I am satisfied that the plaintiff's aggravation of pain in January 1996 was an aggravation of the soft tissue injuries sustained in this motor vehicle accident, as found by Dr Boyce. I find that this aggravation occurred due the normal duties as a flight attendant, and not due to some new accident. I am therefore satisfied that the symptoms of soft tissue injury that developed from early 1997 are attributable to the accident.

13. Ms Thompson has a very poor memory of events of early 1997, other than that she recalls taking time off work due to back pain. The employment records show that she was off work from 19 to 23 January, 17 February to 11 March and 20 and 21 March 1997. Mr Magee, who I accept as a truthful witness, says that,

"During that whole, I think, January/February period there was ups and downs. I know she was becoming very bored, frustrated and there was, I think I believe a slight increase in alcohol consumption. There was probably a build up of frustration with the fact that her back was not getting any better and there was an ebb and flow of emotions, if you like, where she wanted to go back to work and then she didn't want to go back to work."

14. During this time Mr Magee said the plaintiff was also concerned about weight gain due to lack of work and exercise, and an upcoming wedding in Brisbane where she was to be a bridesmaid.

15. There is a file note tendered from one of her supervisors who spoke with her on 6 March 1997 in which Mr Thompson records that the plaintiff, "sounded very depressed", and, "on at least 3 occasions Louise said that she was anxious to return to work as she is bored and frustrated and is depressed by the constant pain." The note also states that the plaintiff felt that she was being excluded by management from meets of Darwin based flight attendants, and recorded, "Louise was clearly emotional at this point". I am satisfied that this note, while clearly not medical evidence, does show that the plaintiff was feeling stressed at this time.

16. She attended the wedding by herself due to Mr Magee's service commitments. He says that he received a call from friends in Canberra, where the plaintiff had come after the wedding, to the effect that she was unwell, and he arranged for her return. On return, he said "she was totally disoriented, wasn't quite convinced of who I was, she didn't know where she lived". She would not eat or drink or talk, and was quite disturbed. The plaintiff's mother came up from Adelaide, and she was admitted to the psychiatric ward at Royal Darwin Hospital from 16 to 28 April 1997, and after some further outpatient treatment she was taken to Adelaide under the care of Dr Bassett, psychiatrist. In his report of 18 November 1998 he says,

"..she presented with Severe Depressive Disorder in a Depressive Stupor. With persistence she began to respond to medication in the form of Venlafaxine and Thioridazine, before electroconvulsive therapy was introduced by order of the Guardianship Board in South Australia. She responded rapidly to this treatment and discharged herself from hospital."

17. Dr Bassett made the diagnosis of bipolar affective disorder. The plaintiff returned to Darwin, and Mr Magee said that she seemed a lot better, but she then moved from a depressive condition to a manic phase, with flamboyant behaviour, massive phone bills and an excited state. She was planning to return to Adelaide on a visit when she was involved in a security incident at Alice Springs airport, and was again admitted as an involuntary psychiatric patient. She recovered from this manic episode and returned to Darwin, but her relationship with Mr Magee broke down, and she moved back to Adelaide to live with her parents. She was placed on mood stabilisation medication, and her condition improved. In early 1998 she moved to Sydney, coming under the care of Dr Lovric, and found employment as a telephone sales consultant for a wine company. Dr Lovric confirmed the diagnosis of bipolar affective disorder.

18. She continued in her employment from June 1998 to early 1999, and then found another position in telephone sales for an insurance company. She ceased her medications in late 1999 and had another acute manic episode, requiring admission to the Prince of Wales Psychiatric Unit on 16 September 1999 as an involuntary patient with a diagnosis of a bipolar disorder/manic episode. A further course of electroconvulsive therapy was administered with the approval of the NSW Mental Health Review Tribunal, with good response, and the plaintiff was discharged to the care of her family.

19. I am satisfied that the plaintiff suffers from bipolar affective disorder, a chronic psychiatric condition which is characterised by episodes of acute depression and episodes of manic activity. She has had several acute episodes requiring hospitalisation and electro convulsive therapy, but is presently stabilised with medications, and she now has insight into her condition and clearly understands the need to conform to her medication regime. The plaintiff's case is that her soft tissue injury lead to this condition becoming acute in April 1997.

20. There is broad support in the medical evidence for such a link. Dr Bassett said in his report that,

"There is reason to believe that her motor vehicle accident acted as one of the precipitating factors which contributed to the onset of severe depressive disorder."

21. Dr Knox, who provided a medico legal report for the plaintiff in October 1998 said,

"It is unusual for physical injury and disability such as that suffered by Ms Thompson to cause major depression of the type which your client came to suffer from in April of 1997. Nonetheless I believe that her continuing pain and worry over her condition did act as a trigger to the breakdown in her psychiatric health. Nonetheless Ms Thomposn must be assumed to have some underlying predisposition to mood disorder. She has come to suffer a manic episode subsequent to her earlier depression, and it may well transpire that she suffers from manic depressive illness. Stressful live events such as physical injury, chronic pain, and concern over employment can act to trigger potential psychiatric illness of this type."

22. Dr Lovric observed that the first onset of her condition occurred while the plaintiff was experiencing symptoms from the motor vehicle accident and at a stressful time in her life with plans for her own wedding and the impending role of bridesmaid. She said,

"It is common for episodes of major mood disturbance to be precipitated by stressful life events and at the time in which Miss Thompson experienced her first episode of depression, she was under considerable stress which was contributed to by the car accident in which she was involved, in addition to the other stressors already outlined. The fact that she did not sustain head injury other than whip lash and the cerebral CT scans and neurospect and been reportedly normal would not suggest that her mood disorder occurred as a result of injury sustained directly in the car accident. However, as previously stated a number of psychological stressors may have led to the expression of an underlying diathesis to this disorder."

23. A report from the Prince Henry Hospital from Dr Peters of 31 January 2000 said,

"It is difficult to be categorical with regard to causality of the motor vehicle accident in her illness. Stressful events can precipitate the development of a bipolar disorder in a genetically vulnerable individual; once an individual has an episode of such illness, they are then at risk of developing further episodes."

24. The plaintiff was examined by Dr Moore, a consultant psychiatrist, for the defendant in December 1999, and in her report Dr Moore said,

"Early episodes of manic depressive illness may be precipitated by psychosocial stressors, however, this is not an illness that occurs without an underlying vulnerability and episodes of illness would have been likely to occur without experiencing motor vehicle accidents."

25. I am satisfied from all of the medical evidence that the plaintiff's accident related soft tissue injuries, which persisted through 1996 at a low nuisance level and were aggravated during normal work duties in early 1997 were causing the plaintiff considerable pain and distress in early 1997 and that this did operate as a factor, in the manner described above, in precipitating a latent psychological condition.

26. This is clearly not a case where the accident caused directly the plaintiff's present condition and where, but for the accident, the plaintiff could be expected to have continued in her duties as a flight attendant for the indefinite future with no problems. Mr Crowe for the plaintiff acknowledged, properly, that the latent condition would have developed independently of the accident, but he submitted that on all of the medical evidence I could be satisfied that the accident brought the condition on prematurely, and on this basis the plaintiff is entitled to damages to reflect this. I am satisfied that the plaintiff has made this case out.

27. 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."

28. As the motor vehicle accident the subject of these proceedings occurred in Queensland I am required, in assessing damages, to apply the substantive law of Queensland (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36). Counsel were agreed that this meant that damages were to be assessed on the common law basis with regard only to statutory provisions relating to discount rates.

29. 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 must be taken into account. In Wilson v Peisly (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."

30. It is thus necessary to assess the damages in respect of the bringing on of the latent bipolar affective disorder by considering its onset following the accident compared with its hypothetical onset had the accident not occurred, applying the principles set down by Dean, Gaudron and McHugh JJ in Malec v J.C.Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-3 and discounting the award of damages to take account of the probability of onset in any event.

31. Counsel for the plaintiff addressed the court on the basis that the plaintiff, "clearly had an underlying susceptibility of real significance", and conceded that there was a "very real possibility" that by 1999 she may have come to symptoms regardless of the motor vehicle accident. It is always difficult determine these hypothetical matters, but it seems to me that the case has been put quite reasonably in this way. While the medical evidence is sufficient to satisfy me that the condition has been brought on by the pain and distress of the soft tissue injuries, I am satisfied also that her underlying susceptibility is such that there is a real possibility that it could have been brought on, by events that are neither "unusual or unlikely" by 1999 in any event.

32. The plaintiff's psychological condition has caused her understandable distress. She has had periods of involuntary hospitalisation and intensive treatment, including electro convulsive therapy, following depressive and manic episodes. She has limited memory of these events, due to the nature of the disease itself and the therapy. She is now on a medication regime which she will have to keep to. Her prognosis is that, subject to maintaining her medication, she should be free of major episodes, although these could be brought on again by a lapse in medication, or intervening major life events.

33. She sought medical clearance to return to flight duties but her employer, not unreasonably, sought assurances that she would be fully fit for the duties of a flight attendant. Given the importance of these duties in any emergency situation on an aircraft, which is precisely the sort of stressful situation which can provoke an acute episode, her psychiatrists have not provided such a clearance, and she seems to understand and accept this. She understandably misses a career which she says she enjoyed and would have liked to continue. She has found employment in telemarketing and sales, and was able to work successfully, although she says with some residual back discomfort, until she left work voluntarily in mid 1999. She then had the further acute episode when she discontinued her medication, and as at March when she gave evidence had not resumed the workforce, although the medical evidence all supported the proposition that she would be able to find and obtain full time work in the future. No additional evidence was given in August as to her condition or employment status.

34. In relation to general damages, I assess her on the basis of the ongoing soft tissue injuries which persist with nuisance value symptoms. These would, by themselves, sound in only a modest award. I must however also take into account the effect these injuries had on provoking to symptoms her latent psychiatric condition. This is a condition of real significance, which has had a major impact on the plaintiff's life, and with which she will have to live forever, following the advice of her psychiatrist in relation to medication. As Dr Lovric stated in her report,

"Bipolar affective disorder is a chronic relapsing condition however, and she is at risk of further episodes of both depression and mania, particularly when off medication."

35. If her condition was directly attributable to the accident, it would sound in a very significant award of general damages, but I must here make an award reflecting the impact the accident has had on bringing the condition on, bearing in mind all of the evidence and in the context of the concession, quite properly made on the evidence, that there is a very real possibility that the condition would have manifested itself in any event by 1999. Taking all of the evidence into account, I award general damages in the sum of $45,000, with $40,000 attributable to past loss, generating interest of $3,650, making a total award of general damages of $48,650.

36. The plaintiff's claim for economic loss was particularised as a claim for the difference between her earnings to the trial as a flight attendant, and her actual earnings, taking into account her periods of employment in sales in recent years. This was calculated a net loss to August of $68,422, but Mr Crowe conceded, properly in my view, that this must be adjusted to reflect the possibility, which was significant, that she would have come to her symptoms before the trial in any event. He submitted that a discount of this potential sum to $40,000 would be just and reasonable in all of the circumstances, and I accept that submission, awarding this sum which, with interest, amounts to $58,214.

37. Out of pocket expenses were agreed arithmetically in the sum of $17,698.43 subject to me being satisfied that the hospitalisation and treatment for the bipolar disorder is causally related to the motor vehicle accident. I am so satisfied, in the sense that the accident brought on the symptoms of the latent condition, and it seems to me that in all of the circumstances of the case it is appropriate to award this full amount, noting that $1,797.18 has been paid to date by the insurer. I do not discount this to reflect the possibility of the condition occurring earlier, but I also make no award for future medical expenses, which seems to me to fairly balance matters.

38. Counsel for the plaintiff submitted that, in all of the circumstances of this case, all that could be done in relation to future economic loss would be to award a buffer. Counsel for the defendant submitted that, as it was conceded that past economic lost should be discounted to reflect the probability that she may have come to symptoms before trial, it would be inappropriate to make any award for future loss. I must disagree with this proposition, as it seems to me that, while it can fairly be said that there is a probability that she may have come to symptoms in any event, which justifies a reduction in the notional award for past economic loss, there is also a chance that she might not, and that, although the onset of the disease could be said to have been inevitable, it may not have become symptomatic by the hearing, and she could have experienced some further symptom free years, for which she can fairly claim to be compensated.

39. The claim for future loss was put on the basis of a modest buffer, to reflect the fact that she has lost her chance of continuing for some years further as a flight attendant, taking into account also that, subject to maintaining her medication, she has demonstrated an economic capacity to work in other fields, including marketing. The evidence establishes, however, that these fields of employment were less remunerative then her duties as a flight attendant with net earnings in the order of $560 per week. In all of the circumstances it seems to me that she has established an entitlement to a sum to reflect the loss of this chance, and, taking into account what the Full Bench of the Federal Court said in relation to global approaches to damages in Fry v McGufficke [1998] 1499 FCA, an award of $20,000 in respect of future economic loss seems appropriate in all of the circumstances.

40. This amounts to an award of $145,562.43 which I consider to be appropriate in all of the circumstances, with costs.

I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 25 August 2000

Counsel for the Plaintiff: Mr Crowe

Instructing solicitors: pappas, j. attorney

Counsel for the Defendant: Mr Williams

Instructing solicitors: Wood Fussell as agents for Malcolm Johns & Co.

Date of hearing: 21 February 2000, 1 August 2000

Date of judgment: 25 August 2000