Joanne Maree Mitchell v Mathew Barham [2000] ACTSC 88 (16 October 2000)

Last Updated: 17 October 2000

Joanne Maree Mitchell v. Mathew Barham [2000] 88 ACTSC

(16 October 2000)

CATCHWORDS

DAMAGES - Assessment - Personal Injury - Motor vehicle accident - Soft tissue injuries - No issue of principle

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

Van Gervan v Fenton [1992] HCA 54; (1990) 109 ALR 283

No. SC 441 of 98

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 16 October 2000

IN THE SUPREME COURT OF THE )

) No. SC 441 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOANNE MAREE MITCHELL

Plaintiff

AND: MATHEW BARHAM

Defendant

ORDER

Coram: Master T. Connolly

Date: 16 October 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Judgement be entered for the plaintiff in the sum of $135,863.24.

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 4 July 1992 at the intersection of Macarthur Avenue and Miller Street in O'Connor in the Australian Capital Territory. The plaintiff was the front seat passenger in a vehicle being driven by her boyfriend who failed to give way to another vehicle. The plaintiff recalls only seeing headlights approaching. The vehicle was struck on the front passenger side, and the plaintiff was taken by ambulance to Calvary Hospital. I am satisfied that the accident was one of considerable force. Liability was not in issue, and the matter proceeded before me by way of an assessment of damages only. The plaintiff sustained lacerations to her forehead and abrasions and bruising across her body in the accident, which have resolved, but continues to complain of neck and back pain, and has required extensive use of painkillers in the years since the accident.

2. The plaintiff was born in 1974 and was a year 12 student at Daramalan College at the time of the accident. The accident occurred at the beginning of the school holidays, and she spent this time in bed recuperating, but was able to resume her studies and successfully complete year 12, gaining a high tertiary admission score which enabled her to enrol in her preferred Arts/Science degree course at the Australian National University. Ms Mitchell was also able to resume some part time employment in the latter part of 1992.

3. After her discharge from the accident and emergency department at the hospital the plaintiff attended her long term family general practitioner, Dr Foo, who has continued to provide her with treatment. The referring note from the hospital diagnosed the plaintiff as having sustained a whiplash injury with thoracic and lumbar pain and a laceration to the forehead. Dr Foo recorded complaints of neck pain on his first consultation on 6 July 1992. He recorded complaints of headaches and vertigo in the weeks following the accident, and referred her to Dr Tuck, a neurologist, who reported to Dr Foo that this was secondary to her accident, but would be expected to resolve over time. The plaintiff continued with painkillers as prescribed by her general practitioner for the remainder of 1992. She also complained of anxiety in respect of travelling in cars, and her general practitioner referred her in November 1992 to a clinical psychologist, Mr McBride, who has continued to treat the plaintiff over the years.

4. Before the accident she had obtained a position as a tutor at a boarding school in England, and had decided to take up this position in 1993 and defer her university studies for a year. She left Australia in January, and spent the year living at a boarding school where in addition to her tutoring duties she served as a swimming and netball coach. She also travelled extensively during her school vacation periods with trips throughout Britain and Europe, utilising air, rail and road for travel. Ms Mitchell acknowledged that she was able to undertake these activities, but said that she continued to complain of neck pain and headaches.

5. On her return to Australia she commenced her university studies. In a report to the defendant's insurer on 24 March 1994 Dr Foo said that the plaintiff on his last examination on 8 March 1994,

"...complained of muscular tension headaches, which had recurred on returning to her university studies. Her other symptoms appeared to have stabilised. The post traumatic stress disorder for which she was having counselling from a psychologist appears to have settled and she has been able to return to driving a car without any anxiety symptoms. The pains in her left leg, lower back and right knee are not causing any more disability. There has been no more neck pain but she still gets headaches which appears to be aggravated by studying."

6. This is consistent with a letter written by the plaintiff to the defendant's insurer in January 1994 where she said that she had not, "incurred any expenses or suffered any illness as a result of the accident" since early 1993.

7. Despite these optimistic projections, the plaintiff found as she commenced full time studies in 1994 that her pain levels increased. This has remained the pattern to the present time, with the plaintiff experiencing particular difficulties associated with periods of intense study. She has dealt with this by way of increasing levels of pain relief, and experienced difficulties in October 1998 when she ingested an excessive amount of pain relief and required treatment at Calvary Hospital. The evidence satisfies me that this was not an overdose, in the sense of a deliberate taking of excessive medication, but rather an attempt to continue to study by taking increasing levels of medication to deal with the problems of pain.

8. The plaintiff has also continued to have some psychological sequelae to the accident. She continues to be nervous as a driver and passenger, and despite having held a learners permit for most of the period since the accident in 1992, she has never undertaken her drivers test and remains unlicensed. She has continued with extensive treatment from her clinical psychologist over the years since the accident.

9. Ms Mitchell has, despite these difficulties, successfully completed her Arts degree, and at the date of trial had only two units to go to complete her science degree. She has over the years obtained various deferrals due to her accident related injuries, and has dropped subjects, so that she estimates that it has taken her an additional year to complete her studies. Her Arts degree was completed in 1998, and in that year she obtained, by a process of competitive selection, a position as a graduate administrative assistant in the ACT Government Service, with a placement in the ACT Department of Urban Services in the unit responsible for urban parks and landscapes. She has an interest in environmental and planning matters, and an enthusiasm for this work, and expects to develop her career in this field, both in government and the private sector, as her experience grows. During her year as a graduate administrative assistant she undertook some work placements in different agencies, as well as a management diploma through Deakin University. In late 1999 she obtained a permanent position as an Administrative Services Officer grade 5 in her preferred area, and this year has been able to resume part time studies to complete her Science degree. She was offered a more senior position in a different area of the department in May 2000, and had this offer matched by an acting position in her preferred workplace, a position which is to be advertised for permanent filling at the Administrative Services Officer grade 6 level in due course, and for which she will be an applicant. The plaintiff impressed me as a determined and hardworking individual, and her credit was not challenged by the defendant.

10. She has particularised a claim for domestic assistance, and gave evidence of difficulty with heavy housework and shopping due to neck pain. She acknowledged in cross examination, however, that she contributes to the running of the house with cooking, shopping, washing and lighter duties, with her the defendant, who is now her fiancee, doing the heavier work.

11. The medical evidence satisfies me that the plaintiff has had ongoing consequences from her soft tissue injuries. She has dealt with these ongoing complaints by way of taking pain killing medication, various types of which have been prescribed over the years by her treating doctor. She has received counselling over the years with a view to reducing her medications, but has found that she needed to continue to medicate in order to complete her degrees, and to cope in the workplace, where she has successfully commenced a professional career.

12. She was referred to Dr McGrath, occupational physician, in 1995, and he has treated her with a view to achieving pain relief, including an attempt at a facet joint injection in April 1996 which proved unsuccessful. In November 1998 she was referred by her general practitioner to the Sydney Pain Management Centre where she undertook a course of treatment which was intended to reduce her consumption of pain killers, and seems on the evidence to have been partially successful. The plaintiff says that, if the insurer had been prepared to provide her with additional funds, she would have liked to have continued with this form of treatment in order to learn to cope with her injuries without significant medication.

13. There was little real disagreement on the medical reports in this matter, and doctors were not required for cross-examination. The plaintiff was examined for the defendant by Dr Goldrick, consultant physician, in September 1995, and in his report he found that Ms Mitchell suffered soft tissue injuries to her cervical, thoracic and lumbosacral spine in the accident which he said at that time, "have resolved to a large degree but are still causing symptoms and will require an ongoing program of physical therapy." He also acknowledged that the plaintiff had suffered from post traumatic stress reaction, which he also felt was resolving although with residual mild symptoms. Dr McEwin also examined the plaintiff for the defendant in December 1998 and November 1999. He found that she still complained of ongoing neck pain and headaches, and was continuing with pain relief medication. He noted on both occasions that she had symptoms on tenderness and lack of movement in the neck, but expressed the view that this was no longer related to the motor vehicle accident. In his report of November 1999 he said,

"I was disappointed to find that there had been no decrease in the symptoms from the injury to the cervical, thoracic and lumbar spines. One normally expects these injuries to recover within four to six months. It is now over seven years since the motor vehicle accident and her symptoms persist."

14. While I accept Dr McEwan's view that soft tissue injuries normally resolve, it follows that in some cases they do not, and it is not appropriate to draw from the fact that these have not resolved the conclusion that they are no longer accident related, in the absence of evidence of any other cause. Dr McEwan's opinion that the plaintiff's symptoms are not related to the accident is at odds with all of the other material, and I am not persuaded by it. I am satisfied that the accident has caused soft tissue injury which persists, and continues to cause pain and discomfort.

15. Dr Saboiski, a consultant psychiatrist, examined the plaintiff for the defendant in December 1998 and February 2000, and found that she continued to experience symptoms of chronic pain, which he acknowledged were attributable to the motor vehicle accident. He commented, as have many of her treating doctors, on her elevated use of pain killers.

16. Ms Mitchell has been using therapeutic massage for many years, which she says assists her in dealing with her problems. Her treating specialist, Dr McGrath, has expressed the view that, "massage can not be justified from a treatment efficacy perspective. There is no scientific support for its enduring therapeutic value"(report of 1 June 1998). In his most recent report of 8 May 2000 Dr McGrath noted that the plaintiff has experienced periods of little pain, but that her pain and discomfort are related to work or study cycles. He recommends further exercise program development, but observed,

"In retrospection, I believe that psychological issues have not been addressed adequately with too much fear avoidance behaviour evolving. Passive behaviour has been correlated with poor outcome in the medical literature."

17. He expressed the view that,

"Her spinal injuries alone should not lead to a workplace handicap in an occupational role to which she is suited to by training and education. A regularly practiced exercise routine with proper attention to work station ergonomics should reduce or obviate the need for sickness absence on a regular basis."

18. There is a report from Dr Gronow, the medical director of the Sydney Pain Management Centre, dated 4 December 1998, in which he expressed the view that the plaintiff,

"...presents with a chronic pain syndrome in relation to her injury to her cervical spine with a component of neuropathic pain. She is over reliant on medication as a coping strategy to address her pain and her stress levels and she is not using any active coping strategies to manage her pain. It does appear, however, that she is very motivated to make the changes necessary."

19. Ms Mitchell said that she obtained benefit from this program, and would like to undertake the full program. It seems to me on all of the evidence that this is likely to be the strategy that will lead to the most optimal outcome for the plaintiff in the future.

20. The cost of future treatment at the Sydney Pain Management Centre was not known at the time of the hearing, and leave was sought to obtain this information. By consent of both parties a further report from Dr Carroll, Registrar of the Centre, was received by me in Chambers on 20 September 2000, based on a review of the plaintiff on 11 and 12 September. Dr Carroll reported that the plaintiff,

"Would benefit from ongoing pain management in order to ensure she is able to continue her current vocational role as well as to minimise work absences due to pain. There is no evidence that she is currently experiencing problems of addiction or dependence with her prescribed medications. It is recommended that Ms Mitchell attend the Pain Management Centre on a monthly basis for six months and then on a second monthly basis for a subsequent six months. It would be recommended that, during this time, she would maintain her current vocational role. It would also be recommended that, during the course of this programme, she undergo spinal nerve blocks. Following on from this pain management programme, it is recommended that she be followed up at regular six monthly intervals for the next five years."

21. 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'."

22. In respect of general damages, I assess the plaintiff on the basis of ongoing pain from soft tissue injuries to the neck and thoracic spine, still persisting after some eight years. I also take into account the immediate distress of the accident by way of generalised soft tissue injuries and bruising, and lacerations to the forehead, which has not resulted in scarring, although the plaintiff believes that a piece of glass may remain in her forehead. I find that this pain has lead to increasing consumption of pain relief medication to enable the plaintiff to successfully complete her tertiary studies and commence her professional career. I accept that there has been psychological sequelae to this injury, and that the plaintiff has still not fully recovered in this respect, and that she has not considered herself yet ready to obtain a drivers licence. The plaintiff was an enthusiastic participant at sports at school, but has been limited in physical activities since the accident. She was, however, able to work and travel and engage in sports coaching in the year after the accident, and has been able to contribute to household activities.

23. The plaintiff intends to marry next year, and hopes to start a family in the future, combining family responsibilities with her professional career. She is aware that her current medication regime would not be safe during pregnancy, and that she will have to modify this regime. It is common ground on all of the medicine that the plaintiff's current regime is inappropriate, and I am satisfied, on the basis of the reports of Dr McGrath and the Sydney Pain Management Centre, that appropriate strategies can be put in place to ensure that the plaintiff is able to better cope with resolving long term soft tissue injuries with minimal recourse to pain relief medication.

24. Taking all of the medical evidence and the plaintiff's evidence into account, and being mindful that the underlying injuries are, on all of the evidence, soft tissue injury alone with no disc involvement, it seems to me that an award of general damages in the sum of $45,000, with $30,000 attributable to past loss, is appropriate, generating interest of $4,967.

25. Out of pocket expenses to the date of the hearing were agreed in the sum of $24,896.24, which I award in full, noting that this includes massage treatment which the plaintiff has been utilising, but which her specialist does not support on scientific grounds. It seems to me that it is appropriate to allow a plaintiff to attempt such treatment, and that where costs have been legitimately incurred, it is appropriate to make provision for reimbursement, as this was a reasonable attempt to resolve symptoms.

26. In respect of future treatment expenses, I am not satisfied that there is evidence that would support the need for ongoing massage.

27. In respect of economic loss, I am satisfied that the plaintiff lost some time from her part time employment at the time of the accident, and that this minor claim as particularised, for $294 is made out. The plaintiff also particularised a claim for loss of part time employment on the basis of her reduction of hours from 20 to 6 to 10 as a part time sales clerk at a shoe store from June 1996 in the sum of $8,690. In her evidence in chief, however, she acknowledged that part of the reason for this reduction was the means testing regime applicable to her then Austudy benefit, and it seems to me that she has not made out a claim for the full difference between her former and reduced hours, as it is clear that it was not the accident alone that lead to this reduction of hours. I am satisfied that the plaintiff was, due to her symptoms, required to drop subjects over the years of her undergraduate study. The plaintiff impressed me as a determined and honest person, and I am satisfied that each year she determined to achieve a full study load, but that as the term progressed she found that she was not coping, and as a result dropped or deferred subjects, the end result being that she has taken an additional year to enter the workplace. She has claimed the net salary of one year, being $23,095. She also has particularised a claim for additional time off work since commencing employment in the sum of $3,467.

28. It seems to me that these claims, with the exception of the lost shoe shop income, are all fully made out, and I am satisfied that her injuries did have some impact also on her part time earnings as a student. It seems appropriate to award the sum of $30,000 in respect of past economic loss. I note that the defendant insurer made a payment to the plaintiff by way of an advance on economic loss in the sum of $12,544 on 27 July 1997, and this amount must be taken into account in respect of past economic loss. As I have calculated economic loss on the basis of a precise figure for a years lost income by way of a loss of the opportunity to enter the workforce a year earlier than she did in February 1998, and on a discretionary basis for the component related to the loss of part time income, it seems to me that it is therefore appropriate to award the plaintiff interest on a notional real loss taking into account the advance. I thus assess interest on the basis of a loss of $18,000 from 28 July 1998, and I award the sum of $4,000 by way of interest making a total award of $34,000.

29. In respect of future economic loss, I accept the evidence of Dr McGrath that the plaintiff should, particularly after completing the pain clinic program, be able to work normally with no excessive time off. This is supported by the report of Dr Carroll.

30. The evidence of the plaintiff at the hearing was that she had been advised to take a year off to undertake a pain management programme, but favoured taking only six months. The subsequent report from Dr Carroll, however, recommends that she maintain her present vocational role. It seems to me on all of the evidence, and with the favourable projections, that the plaintiff can anticipate reducing her medication use and minimising time off work. On this basis I award the sum of $17,000 being about six months present net salary by way of a buffer for future economic loss.

31. The plaintiff particularised a claim for future treatment expenses of some $94,000, based on fortnightly general practitioner visits, weekly massage, weekly medication at present rates, and psychological counselling for the next 15 years. An additional cost, not then known, was the Pain Management Centre.

32. The report from Dr Carroll set out the cost of the recommended course at the Pain Management Centre at $3,070, excluding the nerve blocks, plus $1,630 for six monthly visits over the next five years. I am satisfied that this is the appropriate future treatment and that this will significantly reduce her medication levels and the need for ongoing general practitioner review to monitor medication. I am also satisfied that this will minimise, but not entirely remove, the likelihood of future psychological counselling. I am not satisfied that ongoing massage is a reasonable accident related expense for the future.

33. I award the sum of $10,000 for future out of pocket expenses to cover the cost of the pain management course, including a component for nerve blocks and travel, and a component for limited and diminishing future medication costs, general practitioner costs and counselling.

34. There is a claim for Griffiths v Kerekemyer damages particularised at two hours a week for the past and for five years into the future. Given the nature of the soft tissue injuries, and the plaintiff's evidence about her abilities to travel and coach in the year after the accident, and to participate in household activities in subsequent years, I am satisfied that the arrangements whereby the plaintiff undertakes the less heavy household tasks while her fiancee undertakes the heavier tasks amounts only to the normal give and take of domestic relationships (Van Gervan v Fenton [1992] HCA 54; (1990) 109 ALR 283) and does not sound in a claim for economic loss based on an accident created need for domestic services.

35. This amounts to a total award of $135,863.24 which I award, noting that there has been a partial advance in respect of the economic loss for which the defendant is to be given credit. The defendant is to pay the plaintiff's costs.

36.

I certify that the preceding thirty four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 16 October 2000

Counsel for the Plaintiff: Mr Parker

Solicitor for the Plaintiff: Bradley Allen Lawyers

Counsel for the Defendant: Mr Conomos

Solicitor for the Defendant: Abbott Tout

Date of hearing: 4 September 2000

Date of judgment: 16 October 2000