Sartor v Kramaric [2001] ACTSC 19 (16 March 2001)

Last Updated: 11 June 2002

Sandra Sartor v Jennifer Kramaric [2001] ACTSC 19 (16 March 2001)

CATCHWORDS

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

Fry v McGufficke [1998] 1499 FCA

Griffiths v Kerkemeyer (1977) 193 CLR 161

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

No. SC 63 of 1997

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 16 March 2001

IN THE SUPREME COURT OF THE )

) No. SC 63 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SANDRA SARTOR

Plaintiff

AND: JENNIFER KRAMARIC

Defendant

ORDER

Coram: Master T. Connolly

Date: 16 March 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $99,608.63.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages arising from a motor vehicle accident which occurred at Kambah in the Australian Capital Territory on 9 August 1996. Liability was conceded, and the matter proceeded by way of an assessment of damages only. The accident occurred in unusual and unfortunate circumstances. The plaintiff, who was a Year 12 student at Karabar High School at the time was a passenger in the car driven by her school friend, who had only recently obtained her licence. They were driving to the movies at Tuggeranong, and in the rear of the defendant's car was the defendant's boyfriend and another young man. The boys, apparently for a joke, applied the handbrake of the defendant's vehicle. The defendant was unaware of this, and stalled the car on a number of occasions. The plaintiff says that the accident occurred when the defendant was at the intersection of Learmonth Drive and Athlon Drive. The handbrake was released, and her car shot out of the intersection into the path of a vehicle driven by Ms Hallet. Ms Hallet's car collided with the front driver's side of the defendant's car.

2. The plaintiff claims that she sustained back and neck injuries in the accident which have produced ongoing and disabling back pain. She claims that, but for the accident, she would have engaged in employment as an international airline steward, and the economic loss claim is particularised as a claim in excess of one million dollars. She claims that she is now limited to part time restricted employment, and that this restriction will be permanent. This is a case where much depends on the credibility of the plaintiff's complaints of pain and disability, and her history of her employment restrictions. The defendant squarely attacked the plaintiff's credit, and submitted that the plaintiff has few if any restrictions on her employability now and for the future.

3. The plaintiff was born in 1978, and was completing her Year 12 when the accident occurred. She took some time off school following the accident, but was able to complete her Year 12 studies. She has told doctors who have provided reports in this case that the accident affected her final grades, but I am not satisfied that this is so from the evidence of her school results. This issue brings me to a preliminary, but significant, point as to the plaintiff's truthfulness. She had told doctors that, as part of her long term plan to become an international airline steward, she had studied Italian at High School, and done well. She agreed that she had told this to Dr Glasser, but in cross examination added that, "I didn't do very well in my exams". It was put to her that she in fact failed the exam, and she then said that she did very well during the year but failed the exam. It was then put to her that her results showed that she had consistently failed during that year in Italian, and had failed to submit two assessment tasks. She conceded this. It further emerged from school records that in Year 11 she had absented herself from school for 31 full days, and 9 part days.

4. These are in themselves relatively minor matters, but the fact remains that, while the plaintiff had presented a very credible picture of herself as a student diligently undertaking appropriate studies to prepare herself for the career that she says has been denied her due to the motor vehicle accident, and doing well, the true situation emerged in cross examination that she had not only consistently failed her Italian course, both in exams and coursework, but she had absented herself from school in that year for the equivalent of six weeks of term. Further records tendered by the plaintiff showed that her attendance record was much improved in Year 12, but I was left with the impression that the plaintiff was prepared to be less than truthful in her claims in this matter in order to maximise her damages.

5. After the accident the plaintiff was taken by her mother to the emergency department at Queanbeyan Hospital. She was complaining of back pain, and was x-rayed, with no abnormality appearing at this examination, which was of her pelvic area. She attended her general practitioner, Dr Coates some days later complaining of low back pain, which was marked at L5/S1. She prescribed physiotherapy, analgesics and anti inflammatory medication. Pain and discomfort continued, and a CT scan was performed on 29 November 1996 which showed,

"L5/S1 Level- There is generalised disc bulging opposite the level of L5/S1 however, no nerve root impingement or narrowing of the neural canal can be identified. No definite recent bony injury can be detected and the facet joints in the lower lumbar vertebrae appear normal."

6. Dr Coates considered this consistent with the motor vehicle accident, which I accept was of considerable force.

7. The plaintiff took up a part time job in retailing at a ladies fashion store after her studies concluded in November 1996, but complained to Dr Coates that the standing caused her pain, and she finished this job in early December. She was able to accompany her mother on a one month trip to Italy in March and April of 1997, but says she experienced pain in her lumbar region.

8. She was sent to Dr Griffith, a consultant surgeon, for a medico legal report on 11 November 1996, that is before completing her HSC studies. He only had available to him a plain x ray of the lumbosacral spine of 9 September 1996, and he noted, "My own impression on viewing these films was that there was some narrowing of the lumbosacral disc (?? of developmental origin) though not of gross degree." He diagnosed soft tissue injury to the lumbar sacral spine, and "nervous shock/acute anxiety".

9. I note the early reference to a psychological sequelae to this accident in a medico legal report obtained quite shortly after the accident. There was no history given of prior psychological problems to Dr Griffith, or to any other doctor the plaintiff has seen, but on her admission notes at Queanbeyan Hospital there is a reference to a prior history of depression. Dr Coates had only been her treating doctor for some months prior to the accident, and her notes show that, on the first consultation in June 1996 the plaintiff was taking the anti depressant medication Zoloft, which must have been prescribed by a prior doctor. The plaintiff could not remember the name of her doctor before Dr Coates. She said she could not remember a prior history of depression, but agreed that her mother could have given this history, and it would have been correct.

10. The plaintiff was specifically questioned about this past history of depression when examined by Dr Glasser, a psychiatrist who examined her for the defendant. She denied any history of depression. He diagnosed her as suffering from a post traumatic stress disorder, which he said was of a mild but appreciable severity. Dr Evans, a consultant psychiatrist who examined her for the purposes of a medico legal report in her case in November 1999 took no history of prior depression, but reported that the plaintiff had an anxiety condition attributable to the accident.

11. Dr Griffith recommended that a CT scan be undertaken if she did not improve, and on 22 February 1997 he reported again with the benefit of this scan. In reference to the bulging at L5/S1 he said,

"The question arises whether the bulging seen is of post traumatic origin or constitutional. Bulging in discs seen on CT or MRI is extremely common- it occurs in up to 50% of individuals who are pain free. However, detailed assessment of Ms Sartor's complaints reveals that she did exhibit aggravation of her pain with cough impulse, in the early weeks following injury. This is suggestive of a disc lesion: thus on the balance of probabilities, it is likely that the bulging seen is in fact of traumatic origin."

12. This assessment seems to be common ground with Professor Hall, who examined the plaintiff for the defendant in June 1997, and concluded that the bulges seen on CT scan at L5/S1 "are probably attributable to the accident." Subsequent examinations by way of MRI scan has showed a minor annular tear at L5/S1, which I accept is also attributable to the accident on the basis of the medical reports. It is common ground that there is no nerve root compromise associated with the disc bulge and annular tear.

13. While the disc bulge may be linked to the accident, it is not common ground that this is the source of any pain. Dr Bowers, a rehabilitation physician who reported for the plaintiff on 2 February 1998 diagnosed musculoligamentous strain of the lumbo sacral spine, and said,

"The investigations demonstrate no definite abnormality and the broad based disc bulge seen on the CT scan can be seen commonly in the normal pain free population."

14. Dr Chandran, a neurosurgeon, has provided a number of opinions for the plaintiff, and in his report of 18 April 2000 said the bulging disc "may be a contributory factor to some of the pain."

15. I note, however, that Dr Chandran also said in this report that,

"Your client has now undergone a bone scan on 4 April 2000, showing increased uptake in the sacroiliac joints, right worse than left. This is an inflammatory disorder and not caused by trauma and needs further investigations. It may have relevance to her symptoms in the lower back."

16. I am satisfied that the accident has produced soft tissue injuries to the plaintiff's lumbar spine, and also disc bulging and a minor annular tear at L5/S1. I am satisfied that this has been productive of lumbar pain. I am satisfied that the plaintiff has had some psychological sequelae from the accident, but I am concerned that the plaintiff had never revealed a prior history of depression, including the use of anti depressant medication just prior to the accident. I am not satisfied that the plaintiff's condition, either physical or psychological has been as severe as she has claimed, but I am satisfied that there has been a moderate post traumatic stress disorder as described by Dr Glasser. I note in respect of her claimed impairments that Dr Bowers, who examined her for the purposes of a medic legal report in her case in February 1998 reported that, "On today's assessment Ms Sartor had no repeatedly measurable impairments".

17. The plaintiff undertook some employment in 1997 as a retail sales assistant, but says that she was distressed and in pain, and was unable to continue. In September 1997 she obtained employment as a trainee property manager with a Queanbeyan real estate firm, but said in her evidence and has told various doctors that she was unable to continue with this employment due to her back problems.

18. The defendant tendered business records from the employment agency through which this traineeship was organised, and these present a different picture. A facsimile message of 13 February 1998 states that the plaintiff's:

"position has been terminated from her host employer due to her inefficiency in following direction along with neglect of duty, even after much counselling and training."

19. File notes accompanying this from the employment agency record that on 10 November 1997 the plaintiff's then employer discussed the plaintiff with the employment officer, and the notes state:

"He finds she talks down to the other staff, doesn't actively look for work and he's received a number of complaints from other staff about her attitude.....He's counselled her on each issue with no improvement."

20. The plaintiff denied being counselled for such matters, and maintained that she lost her job because her back pain prevented her from fulfilling her duties. I am left in a state of uncertainty as to the reasons for her leaving this employment.

21. She said that she again found employment as a shop assistant in November and December 1997, but was unable to cope with the hours. Her evidence was that she did not work during 1998, but video material did show her at work in a fashion store in October of that year. In this material she displays no sign of impairment. I note, however, that in a report served by the plaintiff Dr Newcombe in February 1999 took a history of a work trial in October 1998. I am satisfied that there has been some genuine confusion as to dates here, and as this employment was disclosed in a medical report served on the defendants, I draw no adverse conclusion from the plaintiff stating in her evidence in chief that she did not work in retail in 1998 when the video material showed her engaged in employment. No record of this employment is found in the plaintiff's tax records.

22. In about April 1999 the plaintiff commenced employment with a family business. This company holds a contract with the distributors of Coca Cola to undertake quality control on "pre mix" outlets in Canberra and the surrounding region. These are outlets where soft drink is dispensed into cups from a bulk container. The plaintiff has referred to this to all doctors, and in her evidence in chief, as very light work, for very limited hours, and has said that it really involves just filling in forms and accompanying her brother who undertakes the work. She told Dr Hall, who examined her for the defendant in August 1999 that she "is asked to do three of four hours a day" but "often only lasts an hour". She said she "goes around with her brother who drives the car". She said that he goes to five or six sites, but she can only go to two, or a maximum of three.

23. Dr Griffith in his report of November 2000 referred to a "highly restricted role in the workplace". She told Ms Klaus, an occupational therapist who performed a workplace assessment on her in April 2000 that four or five hours was her maximum working tolerance, and she needed to work with her brother at all times, because she could not carry the tool boxes. It is stated in this report that when her brother is ill or on holidays she is unable to work. In her evidence in chief she said that on two occasions she had done the job herself. She said this was difficult, and she realised she could not do the job herself.

24. Video material was played which showed the plaintiff performing her duties. This included footage of her performing the job by herself, and carrying the tool boxes. There was no observable disability. In all cases the plaintiff was the driver of the car. I note that annexed to the revised statement of particulars was a schedule purporting to set out the care and assistance provided to the plaintiff, which included five hours a day for her brothers services in driving her during her employment. This was not pursued by her counsel, and rightly so.

25. The impression I formed from the video material was of full and unrestricted movements. At one point the plaintiff is observed walking down small hill which has a ramp like walkway, which forms a switchback. Rather than follow the path, she jumps down the hill. Her hours in the videos well exceed the claims of restricted work, and in all cases where she is seen with her brother, they clearly work the same hours. The longest period out is from about 9 am to 4.30 pm.

26. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J In Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283 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'."

27. In relation to general damages, I assess the plaintiff on the basis of soft tissue injuries with some disc involvement producing ongoing symptoms. I am not satisfied that the levels of disability described by the plaintiff exist to the levels she claims, but I acknowledge some ongoing back pain. I accept some moderate post traumatic stress disorder, now resolving and unlikely to persist. I am satisfied that the plaintiff's soft tissue injuries, which are productive of what pain she now experiences, will resolve in time, although I accept that she could benefit form some pain management techniques, as recommended by Dr Bowers. I assess general damages in the sum of $43,000, with $30,000 for past loss, generating interest of $2,765 for a total award of $45,765.

28. Out of pocket expenses were agreed in the past in the sum of $13,843.63, which I award. A buffer for future out of pocket expenses was particularised in the sum of $25,000, but I am not satisfied that this is made out. I am satisfied that her condition is resolving, and that there has been a degree of exaggeration in her claims of disability, but I accept that some further treatment, by way of pain management, may be appropriate. I award the sum of $5,000 for future out of pocket expenses.

29. Past wage loss was particularised as a net loss of some $29,000 to date of trial, based on the difference between nominal retail award wages, and her actual earnings. I am not satisfied that this is made out as particularised. I accept that in the years immediately after the accident the plaintiff would have had difficulty in prolonged standing in retail sales. I am not satisfied that this would have precluded her from working casual hours. I am not however satisfied that, but for the accident, she would have worked full time in this calling. I note the difficulties reported with her employment at the real estate agent. Since early 1999 she has been working in the family business, and her earnings, according to what records have been produced, have been precisely $10,000 for a full year.

30. I am not satisfied that this accurately reflects her true economic capacity. It was acknowledged that this is a family business, and that earnings are allocated by discretion. The plaintiff's mother, who does the books, was not called as a witness. However, I do know from the evidence that the family business is the vehicle for two enterprises. The plaintiff's father, with some help from her brother, installs and repairs refrigeration and other equipment for Coca Cola in the district. This obviously requires considerable technical skills. There is also the business of quality control, which I am satisfied is the normal occupation of the plaintiff, and which, I am satisfied, is an undertaking in which the plaintiff and her brother are engaged in on more or less equal time. I accept that, normally, he does the physical work, but I am satisfied from the video material that the plaintiff can and does do this as well. I found her explanation that on the occasion of the video she had specially packed the toolbox with light tools quite unsatisfactory. I am satisfied that she has deliberately understated her degree of involvement in this enterprise.

31. The gross earnings from this enterprise attributable to the quality control work seem to average about $10,000 per month. While there will be some outgoings, for the running of the car, and tools, this was not set down in evidence. I accept that the father helps from time to time when he is not doing repairs, and the mother does the books. It seems to me that a business generating earnings of $120,000 split between two persons usually engaged in this occupation, evidences an economic capacity of more than $10,000 per year. I am not satisfied that her present earnings accurately reflect her economic capacity.

32. Taking all of the evidence into account I award a buffer for past wage loss of $15,000, taking into account what the Full Court of the Federal Court said about buffer approaches in Fry v McCufficke [1998] 1499 FCA.

33. The future wage loss claim is particularised on the basis of the difference between airline attendant wages to 65 and her declared earnings in the family business. This is quite unrealistic. Her aspiration to be an airline attendant remains that, and I am not satisfied that, but for the accident, this would have been achieved. I have noted that her claims that she studied Italian and did well in this to prepare herself for a career as an airline attendant proved to be less than credible when compared with her school records. I also note that her medical record, declared to the Queanbeyan Hospital, also referred to palpitations. She acknowledged that she had problems with this, and referred to a heart condition. I have no further evidence as to this condition, but documents from QANTAS tendered by consent after this hearing demonstrated that airlines, quite properly, have rigorous health and fitness standards for aircrew, requiring an "excellent" level of health and fitness. These documents also showed that an applicant for a position as aircrew on international flights should have an advanced level language proficiency certificate in one of the airline's priority languages. Even where applicants meet all of these requirements, only between 6%and 10% of qualified applicants will make it to flight crew. It seems to me that the evidence establishes that this may have been an aspiration, but I am not satisfied that her back complaints are the sole reason she would not be able to pursue this ambition.

34. I am also not satisfied that, even compared with these notional wages, there is a demonstrated loss. On the facts as I have found them to be, the plaintiff is one of two persons principally operating a business providing quality assurance work, which generates significant revenue. The earnings from the business flow through a family company, and by agreement from the family her earnings have been limited to $10,000 per year, which I am not satisfied reflect her economic capacity. It is for a plaintiff to demonstrate, to the relevant standard of proof, their claim for economic loss, and I am not satisfied that this plaintiff has demonstrated her claim.

35. In this matter on all of the evidence I am satisfied that I should award only a modest buffer for the residual effect her musculo ligamentous back problems have on limiting her form performing heavy manual work. I find that she is able to perform work on a full time basis as described by Dr Speldewinde in his report of 16 September 1999. I award a limited buffer only of $20,000 against the loss of the capacity to perform heavy manual work.

36. A Griffiths v Kerkemeyer (1977) 193 CLR 161 claim was particularised in the sums of $20,000 for past care and $50,000 for the future. I am not satisfied that this has been made out. I have noted that the schedule, which I see from a report of 26 February 2001 was referred to her general practitioner, makes some exaggerated claims, in particular for driving the car during work, which she acknowledged her brother did not generally do. Given my findings as to the nature of her injuries, and my caution as to the extent that I am satisfied that her disabilities have been exaggerated, I am not satisfied that this is a case where an award of damages is appropriate. To the extent that there have been modifications in household regimes, as described by her husband, these seem to me to fit within the give and take of domestic relationships as described in Van Gervan v Fenton [1992] HCA 54; (1992) 109 ALR 283, and should not result in damages. I note also the comments of various doctors who have reported in her case that it is appropriate that the plaintiff continue to engage in activities in order to resolve her soft tissue injuries.

37. This results in a total award of $99,608.63 which I consider to be appropriate in all of the circumstances of this case.

I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 16 March 2001

Counsel for the Plaintiff: Mr Crowe

Solicitor for the Plaintiff: Baker Deane & Nutt

Counsel for the Defendant: Mr Stretton

Solicitor for the Defendant: Snedden Hall & Gallop

Date of hearing: 27 & 28 February 2001

Date of judgment: 16 March 2001