Petreska v Montford [2001] ACTSC 99 (26 October 2001)

Last Updated: 11 June 2002

Stojanka Petreska v Anne Montford [2001] ACTSC 99 (26 October 2001)

CATCHWORDS

DAMAGES - Personal injuries - Motor vehicle accident - Aggravation of pre-existing disc degeneration - No issues as to principle.

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192

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

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

Smith v New South Wales Bar Association (1992) 66 ALR 605

Urban Transport Authority of NSW v NWEISER (1991) 28 NSWLR 471

No. SC 548 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 26 October 2001

IN THE SUPREME COURT OF THE )

) No. SC 548 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STOJANKA PETRESKA

Plaintiff

AND: ANNE MONTFORD

Defendant

ORDER

Coram: Master T. Connolly

Date: 26 October 2001

Place: Canberra

THE COURT ORDERS THAT:

1. That judgment be entered for the plaintiff in the sum of $79,318.48.

2. That 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 28 May 1998 at the roundabout at Hume Place at the intersection of Sturt Avenue and Canberra Avenue Griffith, in the Australian Capital Territory. The plaintiff was returning to her home in Queanbeyan from her place of employment at the Royal Australian Mint at Deakin. She says that she was stationary at the intersection and her vehicle was struck from behind by the defendant. Liability was not in issue, and the hearing progressed on the question of the extent to which the plaintiff's accident related disabilities have impacted on her ability to work.

2. The plaintiff was born in 1951 in Macedonia, and married in 1970. She came to Australia with her family in 1974, but returned to Macedonia in 1979. She returned to Australia in 1984, and has lived in the Queanbeyan region ever since. She initially worked as a cleaner, but in about 1987 found employment at the Mint as a proof coiner. This job involved machine operation and packing and checking coins produced by the Mint.

3. The plaintiff's case is that the accident caused a significant whiplash type injury to her cervical spine which has been the cause of ongoing pain and restriction of movement, which has in turn lead to depression and a chronic pain syndrome. The plaintiff was off work for an initial period of some three weeks after the accident, and then commenced graduated return to work involving a variety of lighter duties until November 1999. She has not worked since November 1999. As the accident occurred on her way home from work it was treated by her employer, appropriately, as a workers compensation matter, and she received Comcare payments. A determination was made by Comcare that she is no longer disabled, and her compensation was terminated in February 2001.

4. The defendant's case is that the accident was of a minor nature only, and any soft tissue injury sustained was of a transitory nature only.

5. The matter proceeded to hearing on 10 July 2001, and concluded on that day, with judgment reserved. The parties were advised that judgment was to be delivered on 3 August 2001. On that morning before judgment was delivered an application was made by the defendant that the judgment be delayed and the matter reopened. I agreed to not hand down a judgment that morning, and stood over the application to reopen proceedings to 6 August 2001.

6. On that occasion Mr Satsia, solicitor for the defendant, filed an affidavit stating that the plaintiff had resumed employment on 1 August 2001. The issue of the plaintiff's capacity to resume employment was a central issue in these proceedings.

7. A court has a discretion to reopen a matter after the hearing but before judgment is delivered. The principle to be applied where such an application is made was said by Higgins J in Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192 to be "whether the interests of justice are better served by allowing or rejecting the application". His Honour had regard to the discussion of this principle by the High Court in Smith v New South Wales Bar Association (1992) 66 ALR 605 and the New South Wales Court of Appeal in Urban Transport Authority of NSW v NWEISER (1991) 28 NSWLR 471.

8. The evidence at the hearing had been that the plaintiff had not worked since 1999, and in February 2001 her compensation payments had ceased. There was evidence that she had been told by her employer that, if she did not resume her employment by August 2001 her employment would be terminated. Her evidence at the hearing was that she would try to resume work but did not know whether she could cope.

9. In these circumstances, it seemed to me that the evidence proposed to be given at the resumed hearing of the plaintiff's resumption of employment would advance the interests of justice in this matter. The hearing resumed on 18 October 2001 with evidence from Ms P. Cooper, Human Resources Manager with the plaintiff's employer.

10. The defendant gave evidence of her recollection of the accident. She said that she approached the intersection and noticed the plaintiff stationary at the roundabout while other vehicles were travelling through. She says that she brought her vehicle to a halt about 2 to 3 metres behind the plaintiff, although she then indicated a distance by reference to the distance between the witness box and the bench, which counsel agreed was about 1 metre. Her evidence was that:

"Once I saw that there were absolutely no cars, and I was looking to the right, I took my foot off the brake and started to move forward, assuming that the car in front of me would do the same thing."

11. She said that she then ran into the plaintiff. She estimated the speed at impact at about 10 kilometres an hour. She acknowledged in cross examination that it would normally be the case that she would be accelerating as she moved from a roundabout.

12. Ms Montford says that she offered the plaintiff a herbal remedy (being a supplier of such products on a business trip to Canberra), and observed a dent in the rear left of the plaintiff's vehicle. The defendant suggested to the plaintiff, and to members of her family, that the damage to the plaintiff's vehicle was only minor, suggesting a very minimal impact. The plaintiff's evidence, supported by members of her family, was that there was quite extensive damage to the rear of the vehicle, which was repaired by their insurance company, at a cost she thought was about $5,000. During the hearing a quotation document was faxed from a local repair company which showed a quote dated 1 June 1998 for some $5,089 for repairs to the plaintiff's vehicle, involving panel repairs to the rear bumper, boot and quarter panels, and a re alignment of the vehicle. I find that this does relate to the damage sustained in the accident, and while I accept Ms Montford as giving truthful evidence that all she can recall is a dent, it is notorious that what may appear to a layperson to be a minor instance of body damage can involve quite extensive repair costs.

13. Mr Lunney made the submission that there is no science to correlate speed of impact or extent of damage to injuries sustained, but that I could be satisfied on all of the evidence that this was an impact of some force, and sufficient, given the damage to the vehicle, to produce a whiplash type injury as claimed by the plaintiff. I am satisfied that the collision was of moderate force, and well beyond the trivial matter submitted by the defendant.

14. The plaintiff says that she was shocked by the impact, and instantly felt pain in her neck, head, and left hand low back, as well as pins and needles on the arm. Her son, who was a passenger in the car, drove her to Queanbeyan Hospital where she was examined, and then home. She attended her local general practitioner, Dr Sukumar, the next day, and he has been treating her ever since. In his first report of September 1998, he said that she complained of neck pain only on her attendance on 28 May. An x ray taken at Queanbeyan Hospital was normal. Physical examination revealed a tender and stiff neck with reduced range of movement, and he commenced her on physiotherapy and analgesia.

15. He saw her for regular attendances through June and July 1998. He said: "By the middle of August her neck pain was getting worse and was radiating down the left half of her back, the left lumbar area, as well as the left elbow." I observe that the treating doctor records a first complaint of back pain some six weeks after the accident, although the plaintiff said in her evidence that she felt this pain instantly. Her general practitioner confirmed in cross examination that at first attendance there was no complaint of low back pain. Dr Sukumar has reported that the plaintiff has continued to complain of pain and restriction of movement of the neck, aggravated by activities, in particular return to work. In a report of January 2001 he said that on last review:

"She was very depressed with no relief from her chronic disabling pain. She had also gone through several major life stresses in her family. Her mother died in Macedonia in 1999 and she was unable to attend the funeral. In October 2000 her sister and brother in law were killed instantly in a car accident in Macedonia. Her chronic pain and resultant emotional distress and inability to work full time had caused marital disharmony and very much strained her relationship with her husband. The above mentioned emotional factor had significantly delayed her return to work despite my constant urgings to her to get back to some sort of light duties. She had been tried on various anti depressants but could not tolerate most of those due to unacceptable side effects."

16. Dr Sukumar noted in this report that she had been assessed by Dr Ross Whittaker, a rheumatologist, in October 2000. He said:

"in his detailed report he had concluded that her pain was functional and that the whiplash injury was of minor significance and advised that Stojanka was capable of performing her pre injury duties as a proof coiner."

17. Although Dr Whittaker's report was not served formally by either party before this case in accordance with the rules, I permitted it to be tendered by the defendant on the basis that it has been discovered as part of the Comcare file, which had been made subject to non party production, and also that it had been referred to by Dr Sukumar in the preparation of his report.

18. Dr Whittaker's report noted significant differences between the plaintiff's cervical range of movement when unguarded and on formal examination. He referred to an x ray of 28 May 1998 (which was not otherwise before me) which he said:

"have been reported as showing a reversal of the normal curvature at the C3/4 level with a grade 1 spondylolisthesis of C3 on C4, osteopathic lipping from C3 to C6 and disc space narrowing at C4/5 and C5/6.

19. It is not part of the plaintiff's case that any of this is accident related.

20. Dr Whittaker's conclusion was that:

"The bulk of Ms Petreska's current presentation is not due to any underlying physical condition. The bulk of her presentation is functional and embellished. Any symptoms of a physical origin reflect primarily her underlying degenerative disease. Any contribution secondary to the motor vehicle accident is, in my opinion, at most minor"

21. He did suggest that:

"Mrs Petreska's cervical spine disease may have been permanently aggravated at the level of C3/4 secondary to the motor vehicle accident. However, even if there is an accident related component to her neck pain, this accident related component is only a minor component of her ongoing symptoms which have a physical basis."

22. I find it extraordinary that the only reference in the evidence in this case to any potential link between the plaintiff's claims of ongoing neck pain and observable clinical signs is in this report, tendered at the end of the hearing on the basis that it had been referred to by Dr Sukumar. There is no pleading linking the accident to any change at C3/4, and I find that this was a pre existing condition.

23. Indeed, Dr Sukumar, the plaintiff's general practitioner who has provided reports in this matter, was quite explicit in cross examination in asserting that the plaintiff showed "a collection of complaints" which were "without any organic basis" (Transcript, p63). He said that he had undertaken CT and MRI scans, but agreed that these had never been referred to in any report, and he agreed that the scans did show degenerative changes. He agreed that the degenerative changes could explain some of her complaints, but then said, for the first time, that: "the accident could have aggravated those symptoms also" (Transcript, p63).

24. In cross examination Dr Sukumar agreed that there was no organic basis for the plaintiff's generalised complaints of pain, and that he was dependant on her truthfulness in making complaints of pain. He agreed that he had worked closely with the Comcare rehabilitation team to devise a return to work program for the plaintiff, and had developed tasks which he felt the plaintiff could perform, but that each time she would return to him saying that she was unable to work. I note that Dr Corry, the rehabilitation specialist, said in his June 1999 report that:

"I believe Ms Petreska is fit to continue on part time selected duties at her workplace and I would anticipate that her work capacities will gradually improve over the next three months".

25. There has been no further report from Dr Corry.

26. Dr Sukumar agreed that the plaintiff's complaints over time have been riddled with inconsistencies. He agreed that if a person did in fact have the level of complaints made by the plaintiff that they would be quite invalided, and that as a sign of this there would be muscle wasting on easy observation. He agreed that there was "nothing" to indicate muscle wasting. He agreed that the plaintiff had been urged to undergo stretching exercises and physiotherapy, but had claimed to be unable to undertake the exercises. He agreed when it was put to him that: "there was a real question over her genuineness in complying with the regime that was set down."

27. Dr Sukumar was also questioned about the plaintiff's claim to be psychologically disabled from working. He agreed with his comment in his report that the unfortunate family bereavements in 1999 and 2000 had a significant impact on her emotional stability. She had denied that these were significant in her evidence. He agreed that a report from Dr Donsworh, a psychiatrist, cast extreme doubt on the plaintiff's veracity, and concluded that she had no psychiatric problems. I will set out the following cross examination following on from his acknowledgment of this report:

"Yes. There was nothing emotionally or psychiatrically preventing this lady from going back to work. Isn't that the situation?---Yes

And you'd agree with that?---Yes

Doctor, when she says she wants to go back to work, that's something you would encourage?---Yes

And if there was a resolution of her litigation, do you think that that would have a positive impact upon her viewing her disabilities?---Yes, I think so. If the resolution is - if the conflict is resolved.

28. The passage concluded with:

"But certainly the indications would be that there would be no physical impairment to this lady going back to her full time duties, within a reasonable time? Yes, I think probably her emotional disability would be sorted out. That would be resolved if this conflict is settled."

29. Dr Donsworth's report was tendered by the plaintiff after the close of the case, on the basis that it had been the subject of cross examination by the defendant, and had been a document which had been the subject of a non party production notice. I allowed the tender, but of course there is a disadvantage in that Dr Donsworth was not available for cross examination. There is a difficulty in personal injury cases which are run, as it were "in the shadow" of a Comcare claim where there has been some dispute over whether a worker is disabled. It is apparent that in this case Comcare formed a view in February 2001 that the plaintiff should no longer receive compensation. I have had some, but it is apparent from the material before me, not all, of the Comcare material before me. This is a case where the medicine is far from satisfactory, there being no radiology before me, although evidence has been given of scans, and no orthopaedic evidence from the plaintiff. The tender at the end of the day, on the basis of it having been referred to in cross examination, of a psychiatric report obtained by Comcare is hardly the best way to get to the truth in a matter.

30. Dr Donsworth's report refers to a history which is in many ways inconsistent with the evidence. She records the plaintiff saying that Dr Sukumar tells her she cannot work, and recommends that the plaintiff be urged to attend rehabilitation. The evidence before me is that Dr Sukumar has been constantly working towards getting the plaintiff back to work, but that she presents with claims of disability, which are inconsistent, not supported by physical signs, and present a picture of invalidity which he agreed would lead to observable muscle wasting, which is not present. Dr Donsworth found a pain disorder to be present.

31. On all of the evidence in this case I am satisfied that the plaintiff did sustain soft tissue injuries only in the motor vehicle accident of 28 May 1998. I accept that this whiplash injury to the cervical spine (which is what is pleaded) occurred to a region where there is a degree of degenerative change present, but which had been symptom free before the accident.

32. I am not satisfied, however, that the plaintiff's complaints of ongoing gross disabling pain and restriction of movement are made out. I find that the plaintiff has suffered from soft tissue injuries to the neck from May 1998 to present, but which are resolving, and that the extent to which she presently suffers from a physical disability, the impact of the motor vehicle accident is diminishing in its impact as the underlying degenerative condition takes effect. I am not satisfied that there is any psychological component to her present condition attributable to her injury. The report of Dr Donsworth is based on a history which is quite inconsistent with the facts as I have them, and so is unreliable on the principle of Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642. There is a report from a clinical psychology service from a Ms Just, who is a Registered Nurse with counselling qualifications, but not a registered psychologist. This report takes a history of gross pain, and then refers to a situation of abundant loss and grief flowing from the motor vehicle accident, and an immune system condition. I did not find this of particular benefit. Dr Sukumar agreed that the bereavements have been of considerable impact on the plaintiff, and explain much of her psychological condition.

33. 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'."

34. In respect of general damages, I assess the plaintiff on the basis of a soft tissue injury, which is now resolving. I accept the proposition as put by counsel for the defendant and agreed to by Dr Sukumar that the plaintiff's condition will further resolve following the resolution of this litigation. I expect the accident related impact to resolve, and any further disability to be related to the underlying degenerative condition. In respect of general damages, I assess the plaintiff in the sum of $25,000, of which I attribute $22,000 to past loss, generating interest of $1,503 for a total award of $26,503.

35. Out of pocket expenses have all been paid by Comcare and were agreed in the sum of $5,706.50, which I award. No claim is made for the future, and this is appropriate.

36. Past economic loss was claimed on the basis of wages lost during her period on Comcare benefits, and total loss of wages, based of $407 per week, from the time the Comcare payments stopped in February 2001. While I have considerable misgivings about the plaintiff's genuineness in attempting graduated return to work programs and claims to total incapacity, I have found that there has been a genuine soft tissue injury to her neck, which is the site of real degenerative change, and I am satisfied on the balance of probabilities that she has been incapacitated for work up until February 2001, and I award the total amount paid to her by way of Comcare benefits, being $30,108.98. This is repayable, and she has not been out of pocket, so no interest is awarded. On all of the evidence before me I am not satisfied that the plaintiff has since February 2001 and on a continuing basis been totally incapacitated by reason of accident related disabilities from returning to her duties at the Mint.

37. She gave evidence that she has been told that she has until later this year to return to her job, or she will lose it, and she gave equivocal evidence as to whether she could undertake the work, although she indicated she would try.

38. Ms Cooper gave evidence that the plaintiff returned for work on 1 August 2001 with the declared intention to work four hours a day for five days. She ceased work on 7 August 2001, which counsel for the defendant noted was the day after I ordered the matter be reopened for further evidence. The plaintiff denied knowing that the matter would be reopened until `yesterday'. I find this incredible.

39. The plaintiff resumed work from 13-30 August for two hours a day, three days per week, on the basis of a certificate from Dr Sukumar. She took September off on recreation leave, resuming on 2 October for four hours work on five days a week. She worked these hours, I am satisfied, in her old job. She drives herself to and from work. The plaintiff said that swelling in her hand was the reason she had to cut back her hours, but the coincidence between the cessation of work on 7 August and the reopening of this matter on 6 August is striking. Although she maintains she ceased work on her doctor's advice, Dr Sukumar's evidence had been that he consistently urged the plaintiff to resume work.

40. On all of the medical evidence, I see no reason why she could not have returned to work at least on a graduated basis from February of this year. I will award the sum of $7,000 by way of past wage loss from February to now, being based on eight months of half loss of pay, inclusive of interest. This amounts to a total award for past economic loss of $37,108.98. By awarding the total sum, on a gross payment basis, the Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component is taken care of and can be resolved in the pay back process after judgment.

41. In respect of future economic loss, I am satisfied that the plaintiff will be able to return to her duties, and that the accident related disabilities will resolve, although I am satisfied that some award should be made to reflect a movement back to full hours. I award the sum of $10,000 by way of a buffer for future economic loss, being based on a full years loss of half of her net pay at the Mint. This will provide an appropriate buffer for any extension of the graduated return to work that may be needed.

42. No Griffiths v Kerkemeyer claim was made, nor could it, on my assessment, be made out.

43. This amounts to a total award of $79,318.48 which I award, with costs.

I certify that the preceding thirty five (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 26 October 2001

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Romano & Co

Counsel for the Defendant: Mr Austron

Solicitor for the Defendant: Hunt & Hunt

Date of hearing: 10 July 2001, 18 October 2001

Date of judgment: 26 October 2001