Faten Almazaydeh v Jason Chan [2000] ACTSC 98 (3 November 2000)

Last Updated: 18 January 2001

Faten Almazaydeh v Jason Chan [2000] ACTSC 98 (3 November 2000)

CATCHWORDS

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

Griffiths v Kerkemeyer (1977) 193 CLR 161

Kosev v ACTTAB [2000] ACTSC 85

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

Sullivan v Gordon [1999] NSWCA 338

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

No. SC 607 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 3 November 2000

IN THE SUPREME COURT OF THE )

) No. SC 607 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FATEN ALMAZAYDEH

Plaintiff

AND: JASON CHAN

Defendant

ORDER

Coram: Master T. Connolly

Date: 3 November 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $47,400.

1. This is a claim for damages arising from a motor vehicle accident which occurred on 16 December 1996 at the intersection of the Monaro Highway and Lanyon Drive at Hume in the Australian Capital Territory. The plaintiff was a passenger in a vehicle being driven by her friend, sitting in the back seat behind the driver. The car stopped at traffic lights and was hit from behind. The plaintiff sustained soft tissue type injuries as a consequence of this rear end collision. Liability was admitted and the matter came before me for an assessment of damages only.

2. The plaintiff was born in Jordan in 1971 and migrated to Australia in 1991. At the time of the accident she was the mother of five children under the age of seven. She had not worked in Jordan or Australia, and was a full time carer to her children. Since the accident she has had a sixth child. As she has not worked and so sustained no loss of income, her claim for economic loss was made on the basis of section 33 of the Law Reform ( Miscellaneous Provisions ) Act 1955 which provides:

"33. Damages for loss of capacity to do housework

The liability of a person in respect of an injury suffered by another person as a consequence of negligence extends to include liability for damages for any resultant impairment or loss of that other person's capacity to perform domestic services that he or she might reasonably have been expected to perform for his or her household if he or she had not been injured."

3. The plaintiff was married at 17 and had two children by the time she emigrated to Australia in 1991. Although her husband was qualified as a weather man in Jordan, he has not been able to find employment in Australia, and the family have relied on Social Security payments throughout their period here, and have resided in Housing Trust accommodation. The plaintiff says that her marriage is now over, and that she and her husband live separately, although still in the same house. She has told some doctors that they are divorced, although this has not yet occurred.

4. The plaintiff claims to be very severely disabled by soft tissue injuries to her back and neck. It is the defendant's case that the plaintiff has considerably exaggerated the degree of her symptoms. The plaintiff has been involved in a second motor vehicle accident on 14 July 2000, which is not the subject of these proceedings, in which she was admitted to hospital for some three days.

5. I am satisfied that the accident occurred when the plaintiff was sitting in a stationary vehicle which was hit from behind by another vehicle with some considerable force. The plaintiff's evidence is that the car was very severely damaged. She said that she thinks she was unconscious briefly following the impact, but there is no record of this in the contemporary notes of the ambulance service or on her admission to the Canberra Hospital, which show that she was discharged following admission and investigation with complaints of shoulder and cervical pain. There were no abnormalities detected on x rays, and the subsequent examinations have failed to reveal anything other than soft tissue injuries.

6. The plaintiff next presented to a general practitioner, Dr Turtle, on 14 January 1997, that is some four weeks after the accident. He recorded complaints of cervical and low back pain as being continuous since the accident, aggravated by any movement. He found significant restrictions of movement, noting,

"On examination there was significant restriction of head and neck mobility with reduction to 5 degrees of rotation to the left, 60 degrees of rotation to the right, 10 degrees of lateral flexion to both left and right, 10 degrees of both flexion and extension. Back extension was limited to only 5 degrees, flexion to 15 degrees, with lateral flexion to both left and right as well as rotation to both left and right limited to 10 degrees. Straight leg raising was to 30 degrees on the right and 20 degrees on the left. Power was limited by pain in both the left arm and leg."

7. This was the plaintiff's first ever attendance on Dr Turtle. Her family general practitioner had been Dr Guirguis, and she also consulted Dr Susan Davey in relation to her pregnancies. Clinical notes tendered by the defendant from Dr Davey's practice show that the plaintiff attended in January and February 1997 and complained of various medical problems, but made no reference to neck and back pain arising from a motor vehicle accident. There is a note from Dr Quay of that practice to the Housing Trust dated 12 February requesting assistance to move the family to larger premises due to infections from overcrowded premises. There were 15 attendances on Dr Davey's practice between the date of the accident and 9 December 1997 when the plaintiff first told Dr Davey about the motor vehicle accident. Counsel for the defendant pointed to the contradiction between the clinical findings of Dr Turtle, of very limited range of movement, and Dr Davey's notes, where no back or neck pain or restriction of movement was noted, and submitted that it was most unlikely that a person with the degree of restrictions of movement recorded by Dr Turtle could repeatedly present to her family general practitioner with no one noticing any back or neck problems.

8. The restrictions to range of movement recorded by Dr Turtle have also been found by other doctors who have examined the plaintiff. Dr Billett, who examined the plaintiff for the defendant on 13 July 1999 found marked restrictions on formal examination, but reported that this, "contrasted to the full free movement of her neck noted when she was in the waiting room and when driving a van following my assessment." Dr Billet formed the view that the plaintiff's soft tissue injuries from the accident had resolved, but that she was portraying herself as being totally disabled.

9. The plaintiff was referred by Dr Turtle to Dr McGrath, an occupational physician, in April 1997. In his report to Dr Turtle of 3 April 1997 he stated that, "I suspect that the injury is not too severe." He recommended that the plaintiff undertake a programme of rehabilitation exercises. In a later note to Dr Turtle in July 1998, tendered as part of the defendant's case, Dr McGrath said that the plaintiff, "was not particularly interested in anything I had to offer." She has not undertaken any rehabilitation programme.

10. The plaintiff was shown a video tape recorded on a number of occasions from November 1999 to May 2000, which showed her driving a van and opening a sliding van door with no apparent disability. It also showed her shopping in a family group with her husband, pushing a trolley, walking and then running on an escalator in shops, and running towards a car. She was observed pushing three children in a shopping trolley, and also pushing a pram, which she then took down an escalator. There was absolutely no disability or restriction of movement present in this material.

11. I am satisfied that the video material is quite contrary to the plaintiff's evidence as to her degree of restrictions of movement, and is contrary to what she has said to doctors examining her for the purposes of preparing reports in this matter.

12. Dr Turtle, who gave evidence by telephone, agreed that in recording a restriction of range of movement he was dependant on the honesty of the patient, and he agreed that the marked restrictions first observed in January 1997 had remained largely unchanged to the present, on his observations and findings. He qualified this by acknowledging that the plaintiff's second motor vehicle accident of 14 July 2000 had caused a significant aggravation of her condition, and that she is now significantly worse than before this latter accident. This is the plaintiff's case. He said in cross examination that a person with the degree of restrictions that he found, "would, even to the untrained eye, appear to be quite significantly disabled." He agreed that the levels of disability that he found would make driving a car very difficult.

13. Dr Turtle is of the view that the plaintiff has sustained soft tissue injuries in the accident which have led to a high level of disability, and has resulted in a chronic pain condition. He has prescribed high levels of pain relief medication over the years for the plaintiff.

14. Dr Turtle was not aware for some considerable time that the plaintiff had also been receiving treatment, although not for the claimed motor vehicle accident, from Dr Davey. He was unaware that this included an admission to hospital in November 1999 during the period of her last pregnancy. He was unaware that Dr Davey has tried to persuade the plaintiff to move off her high levels of pain relief medication, and has been critical of the prescription levels. This evidence highlights the unusual aspect of this case where the plaintiff has moved to a new and different general practitioner for treatment for her claimed motor vehicle accident symptoms, and has presented as being very significantly disabled with a marked restriction of movement, but at the same time has been seeing other general practitioners with no complaints of neck or back pain and no apparent restriction of movement.

15. The plaintiff gave evidence that she moved doctors because she was unable to get an appointment to see Dr Davey. I am unable to reconcile this claim with the record of a consultation with Dr Davey one week before she saw Dr Turtle, where no complaint was made of neck or back pain. I find that, over the next year when the plaintiff made many calls on Dr Davey for a variety of complaints including sore throat, sinus problems, headaches and the like, she made no complaint of neck or back pain and Dr Davey made no observations of restrictions of movement, while at the same time Dr Turtle was recording gross restriction of movement.

16. The video material does not show the plaintiff undertaking particularly vigorous activities, but it does show her driving and then shopping with no restriction of movement. It shows her moving at some speed up an escalator, and then breaking into a run as she goes to her van in order, she said, to not be late for a school pick up for her children. The significance of this is that her general practitioner who has recorded the very high level of disability has acknowledged that the degree of restriction of movement that he has recorded would be very apparent, even to an untrained observer and yet the video material disclosed no such restrictions, confirming to my satisfaction the observations of Dr Billett.

17. I am not satisfied on the balance of probabilities that the plaintiff has ongoing neck and back pain producing the degree of disability claimed. I find that, for whatever reasons, she has exaggerated her claims of disability. I am not satisfied that her present levels of pain relief are appropriate, noting the concern expressed by Dr Davey. The plaintiff has been using high levels (8 tablets a day) of Panadeine Forte, a potentially addictive substance, for many years, and in recent months has been moved by Dr Turtle to MS Contin, a morphine based controlled substance. Given my findings as to the real levels of disability, these levels of pain relief seem quite inappropriate, although I acknowledge that Dr Turtle is, as is any treating general practitioner, dependant upon the patients claimed symptoms.

18. The plaintiff has denied to various doctors any history of neck or back pain, but Dr Davey's notes show that she has regularly complained of back pain during pregnancies, and had requested Panadeine Forte for pain relief. Sciatic pain was diagnosed in August 1995, for which Panadeine Forte was prescribed. In February 1996 Dr Davey recorded, "having back ache frequently as with previous pregnancy". I do not find this particularly significant, as this is not a case where it is alleged that the accident has aggravated any previously asymptomatic degenerative condition, and a degree of back pain associated with pregnancies is common. It remains the fact, however, that the plaintiff did not refer to this history to doctors preparing reports in this matter.

19. The plaintiff also claims to be suffering from a psychological sequelae from the claimed ongoing neck and back pain. There is no doubt that the plaintiff has experienced psychological difficulties in recent years, culminating in an incident in February 1999 when she ingested an overdose of medication, being her father's insulin, and was admitted as an inpatient to the psychiatric unit of Calvary Hospital. Dr Lubbe, who was her treating psychiatrist, reported in May 1999 that she was suffering from, "chronic depression secondary to chronic pain and marital difficulties." She accepted that the motor vehicle accident was the cause of the pain.

20. Dr Cullen, a consultant psychiatrist, saw the plaintiff for medico legal purposes in September and October 1998, and reported to her solicitors that she was suffering from chronic pain disorder and mood disorder reactive to chronic pain. He said that there was no history of relationship difficulties prior to the accident.

21. The notes on her admission to Canberra Hospital following the insulin overdose refer to problems with her husband and her family, and do not contain reference to her claimed motor vehicle accident related symptoms. A reference to problems at home appears in Dr Guirguis' notes in June 1996. Dr Davey's notes on the day of the suicide attempt state, "problems with husband...will not give me permission to tell husband why she is going to hospital." At this time, it must be recalled, Dr Davey had no knowledge of the plaintiff's involvement in a motor vehicle accident and her claimed gross restriction of movement. There is also a reference in a Canberra Hospital note in November 1997 of 2 years of marital problems.

22. Undoubtedly the plaintiff has had difficulties in her life since coming to Australia in 1991. There has been no work in the family, and she has been dependent on social security income and Housing Trust assistance for accommodation. A letter from Dr Quay contained in the clinical notes of Dr Davey's practice dated 12 February 1997 in support of an application for housing assistance says:

"There have been many attendances with conditions that in my opinion result from overcrowded and other environmental concerns in the household...There is frequent respiratory infections, gastro intestinal parasites, asthma and insect bites with skin infections and dermatitis. The insect bites are attributed to the poor state of repair with window and door screens."

23. Throughout this period the plaintiff has been solely responsible for the care of her large family, her evidence being that her husband does not assist at all at home. She has had some support from her sister in law and other family members and friends.

24. The highest point of the psychiatric evidence, it seems to me, is Dr Lubbe's report, which attributes the plaintiff's presenting psychiatric condition to, "chronic depression secondary to chronic pain and marital difficulties." Contemporaneous notes relating to her admission to hospital following a suicide attempt in November 1997 refer only to family problems. Counsel for the defendant observed that out of pocket expenses were not claimed in respect of this first admission at Canberra Hospital in respect of the suicide attempt. I am not satisfied that her complaints of pain and restriction of movement are truthful, and find that she has a much greater degree of unrestricted movement than she has told her doctors. Although I accept a degree of soft tissue injury, I am not satisfied on all of the evidence that this has lead to psychiatric consequences. I attribute her present psychiatric state to factors other than this motor vehicle accident.

25. 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'."

26. In this case I am satisfied that the plaintiff sustained some soft tissue injuries in the motor vehicle accident in December 1996. Although she claimed to be grossly immobilised by this accident when she first presented to Dr Turtle in February 1997, she made no complaint at all to her family practitioner during over 15 visits until December 1997. When the condition is first noted it is recorded as, "back pain - with every pregnancy and says is worse since MVA on 16-12-98."(clinical notes 3/5/98). Dr Turtle has recorded gross limitations of movement that he acknowledged would be apparent to an untrained observer, yet these were not noted by her long term general practitioner, and they were not at all apparent on video film taken of the plaintiff during late 1999 and early 2000. I find that the plaintiff has been significantly exaggerating her accident related soft tissue injuries.

27. On all of the evidence I assess the plaintiff on the basis of soft tissue injuries to her neck and back producing only limited symptoms. I do not find established to my satisfaction any link between these soft tissue injuries and the plaintiff's claimed psychiatric condition. In all of the circumstances of this case, this sounds in a modest award of damages on the basis of soft tissue injuries only. I award damages in the sum of $23,000, of which I attribute $18,000 to past loss. I am satisfied that the second motor vehicle accident is now responsible for the bulk of any soft tissue complaint and that the effects of this accident are now residual. I award interest on this sum in the amount of $1,400.

28. Out of pocket expenses were claimed in a total of $18,279.27, although some amounts totalling $457.85 and relating to periods before the accident were not pursued. I am satisfied that the plaintiff's ambulance trip to the hospital, the initial admission and subsequent treatment are attributable to the accident, including pathology in January 1997 and chiropractic treatment and two MRI scans in March 1997. I will allow ongoing treatment expenses running up to date of trial in respect of her soft tissue injuries, but I am not satisfied that her psychiatric condition is attributable to the motor vehicle accident. It is accordingly not appropriate to award out of pocket expenses to cover the cost of psychiatric and psychological treatment. I am satisfied that the sum of $6,913.72 has been incurred in respect of treatment expenses, and I award this. I am also satisfied that the plaintiff has been taking significant quantities of pain relief, and this must be reflected in an award for past out of pocket expenses, although the costs were not fully set out. I award the sum of $10,000 as a global sum in respect of past out of pocket expenses.

29. A claim for future treatment expenses was particularised for ongoing medication expenses in the sum of $80,316. I have found that the plaintiff's soft tissue accident related injuries have now largely resolved and that the second motor vehicle accident has had a significant impact on the plaintiff. I note that Dr Davey has been trying to persuade the plaintiff for some years to reduce her present medications, and Dr Turtle has also indicated that he would like to see this reduced. I am not satisfied that her present exaggerated claimed level of symptoms justify this present level of medication. I award the sum of $5,000 by way of a buffer for future treatment expense.

30. In relation to the claim for damages pursuant to s33 of the Law Reform (Miscellaneous Provisions) Act 1955, I am satisfied that I should approach this claim on the same basis as I would a claim for damages pursuant to the principles of Griffiths v Kerkemeyer (1977) 193 CLR 161. I am satisfied, following the decision of the New South Wales Court of Appeal in Sullivan v Gordon [1999] NSWCA 338 that such a claim is a separate head of damages, and should be separately assessed on an analogous basis to a Griffiths v Kerkemeyer claim, and should not be subsumed within an award for general damages.

31. It is the plaintiff's case that her accident related condition, which was put as a disabling chronic pain condition and depression, created a significant need for assistance in caring for her family. I am satisfied that she has had difficulty in coping alone with the care of her large young family, and that family members, but not, it seems, her husband, have provided her with assistance. But I am not persuaded that this has been solely or even predominantly because of any accident related disability. There is a note from Dr Davey in May 1996, that is seven months before the accident, saying that the plaintiff, "is pregnant with her fifth child and has a painful back. She requires her husband to help her with housework and looking after the children." This note was apparently written in support of exempting the husband from a requirement of Social Security that he attend some course, and is difficult to reconcile with her claims that he has never assisted with home tasks and childcare. Its present significance, however, is as independent verification of what would seem to be a self evident proposition, that is, that one person would have great difficulty in coping with five, and then six, very young children without some form of family assistance.

32. I am not satisfied that the plaintiff has a level of disability as she has claimed. To the extent that her soft tissue injury has been productive of pain and restriction, I am satisfied that most of the assistance provided by family and friends does not go beyond the normal give and take of domestic relations, and does not sound in an award of monetary damages (Van Gervan v Fenton [1992] HCA 54; (1990) 109 ALR 283). I award a modest buffer in respect of past domestic care in the sum of $6,000 inclusive of interest and an amount of $2,000 in respect of future care.

33. This amounts to a total award of $47,400 which I consider appropriate in all of the circumstances, being mindful of the recent observation by Crispin J in Kosev v ACTTAB [2000] ACTSC 85 where His Honour said at 27:

"It is possible that the plaintiff's current levels of pain and disability are as great as he claims and if so this amount would be quite inadequate to compensate him for all that he has suffered. It is of course notoriously difficult to gauge the nature and extent of another person's pain especially when they are prove to exaggerate or their evidence is otherwise unconvincing. The onus rested upon the plaintiff to prove the extent of his injuries and disabilities and he was entitled to receive damages commensurate only with the extent of injury and disability so proven".

34. I will hear the parties as to costs.

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: 3 November 2000

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Meyer Clapham

Counsel for the Defendant: Mr Pilkinton

Solicitor for the Defendant: Phillips Fox

Date of hearing: 3 October 2000

Date of judgment: 3 November 2000