Veng v Howard [2002] ACTSC 106 (1 November 2002)

Last Updated: 6 November 2002

HORN VENG v SALLY HOWARD [2002] ACTSC 106 (1 November 2002)

CATCHWORDS

PERSONAL INJURY - Motor vehicle accident - soft tissue injuries - assessment of damages - no issue of principle

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

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

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

No. SC 21 of 2001

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 1 November 2002

IN THE SUPREME COURT OF THE )

) No. SC 21 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: HORN VENG

Plaintiff

AND: SALLY HOWARD

Defendant

ORDER

Coram: Master T. Connolly

Date: 1 November 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $196,569.12

2. Defendant to pay the plaintiffs costs

1. This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred on 18 October 1999 at 5.30 am at a roundabout at the intersection of Marungul and Wanganeen Avenues in Ngunnawal in the Australian Capital Territory. The plaintiff was driving with a work colleague in to his job at the kitchens at the Canberra Hospital and the defendant failed to give way and collided with the left hand side of the plaintiff's car. Liability was admitted, and the matter proceeded before me by way of an assessment of damages only. The plaintiff complains of ongoing disabling soft tissue injuries to his neck and back.

 

2. Mr Veng has a remarkable personal history. He was born in rural Cambodia in 1967, and so was a young boy when that country was torn apart by civil war and the coming to power of the Khmer Rouge regime. The schools were closed, and so he never had the opportunity to obtain an education. He became separated from his parents at the age of about 12, and with a group of other young boys, made his way towards the Thai border to escape the chaos of Cambodia. Although some of his party died during this trek, he made it across the border, and was accepted into one of the refugee camps run by the United Nations High Commissioner for Refugees in 1979. Here he obtained some rudimentary education through the efforts of the Red Cross, and was eventually accepted for resettlement in Australia. He arrived in Canberra in 1984, and spent the first six months undergoing an intensive English course with support from a local host family.

 

3. From 1985 to 1988 he attended Melba High School and Copeland College, where despite his enormous disadvantage, he was able to undertake study to Year 12 level. In 1989 he undertook some part time work in restaurants before obtaining a position at the Canberra Hospital in their food preparation area. He worked there until the accident in 1999 rising to a GSO 4 position, and during these years forming a relationship, having two children, and moving with his family to one of the newer Canberra suburbs, where a neighbour gave evidence about him forming friendships. In many ways this story is what we would like to think of as the model of a refugee program, and Mr Veng was able to tell how after he had established his new life in Canberra he was eventually able to be re-united with his parents who, being poor rural villagers, had been able to survive through the years of torment in Cambodia.

 

4. Mr Veng said that he was shocked at the accident, and his car was forced by the impact into the wrong lane of traffic, but fortunately at that hour of the morning there was no oncoming vehicle. I am satisfied that the accident was one of considerable force. He was able to drive his vehicle, and proceeded to the Hospital to perform his shift. He says that he noticed neck pain and headache during the day, and he presented at his family general practitioner that afternoon. He was examined by Dr Lo, and the report from that practice says that the notes on 18 October 1999 state that he complained of sore neck and headache, and that Dr Lo found

"tender mid cervical spine. Tender right paravertebral muscles. Pain on extension and rotation. Range of Movement good."

He was prescribed anti-inflammatories and physiotherapy and given some time off work.

 

5. He presented again at the Florey Medical Centre on 27 October 1999 complaining of persistent posterior neck pain, and he was sent for x-rays, which revealed no abnormality. His anti-inflammatory medication was changed, and he was advised to continue with physiotherapy and given some more time off. He attempted to return to work but suffered a recurrence of pain. Dr La said that on 2 November 1999 he still had residual tenderness at the posterior neck muscles, but an adequate range of movement. He diagnosed neck strain, and said in his report of 17 November 1999 that he would assume a favourable diagnosis.

 

6. Mr Veng returned to work at the kitchen on lighter duties. He said that his normal work at the kitchens involved food preparation which could require him to engage in lifting of heavy bags of vegetables, and constant repetitive actions in chopping up materials. He says that after his accident he was put on lighter duties, involving preparation of bread and butter portions and the like. As his accident occurred on the way to work it was compensable, and a full list of his days off on incapacity payments was in evidence.

 

7. In January 2000 his partner and their children were involved in a motor vehicle accident. It was put to Mr Veng that he took time off work to care for his partner at this time. He said he could not remember this, but his friend, Mr Clark who gave evidence said that he did recall this. Mr Robinson submitted that this went to Mr Veng's credit, but this was in fact the only matter on which his memory was poor, and the one thing that can be established from the material before me is that, if he did take time off, it was by way of utilising his leave entitlements, because there was no time off work on incapacity payment in January 2000. I am not troubled by Mr Veng's poor recall of this time.

 

8. In February 2000 Mr Veng transferred to Dr Southi a general practitioner who practices in Palmerston, which is nearer to his home. In his report of June 2000 Dr Southi says that on presentation Mr Veng complained of lower back pain emerging gradually since the accident which he had not previously mentioned to his former general practitioner. He said this was exacerbated by prolonged standing or sitting. Dr Southi considered that the plaintiff sustained acute mild musculo-ligamentous strain in the neck at the level of C3-5 and acute moderate musculo-ligamentous strain in the lumbo sacral region, consistent with the history of the accident. He noted that after some time off in March 2000 he was attending a graduated return to work programme with lighter duties, and expressed the opinion that the plaintiff could expect to continue with intermittent recurrent pain and stiffness in the neck and lower back over the next one or two years.

 

9. There was no suggestion that the plaintiff had any prior history of neck or back pain, and the defendant did not take issue with the lack of complaint of back pain at the earlier medical reports. Indeed, although he told Dr Southi that he had not previously complained of back pain, he did see Dr Griffith, consultant surgeon, for a medico legal report in December 1999, who records a history of low back pain developing some five days after the accident. Dr Griffith concluded that the plaintiff had sustained musculo-ligamentous strain to his cervical and lumbar spine.

 

10. Dr Southi in his report stated that the plaintiff was having relationship problems with his wife who has not been home to help him. He told the court that his wife left him in about March 2000, initially leaving him with the children, although they have now worked out arrangements to share the custody of the children.

 

11. The incapacity records show the plaintiff having periods off work through 2000. CT scans of the cervical spine and the lumbar spine were performed in March 2000. He was examined by Dr Billet, orthopaedic surgeon, for the defendant in April 2000, and he expressed the view that the motor vehicle accident

"resulted in soft tissue injuries to his neck, thoracic and lumbar spine, and in addition he has aggravated and made symptomatic the underlying pre existing constutional degenerative changes in these areas."

Dr Billet expressed the view that the soft tissue injuries and the effect of the aggravation would resolve over the next three to four months, but accepted that he should continue on light duties, and should limit weight and repetitive bending activities.

 

12. He again presented to Dr Griffith in November 2000. On this occasion Dr Griffith took a history of emotional problems flowing from the accident, and noted a complaint of lack of libido and erective failure following the accident, and contributing to the breakdown of his relationship. He noted that he had not yet received treatment for this. Dr Griffith had available to him the CT scans which showed some bulging of discs, and he added to his earlier diagnosis of soft tissue injury aggravation of lumbar and cervical spondylosis, which is broadly consistent with Dr Billet's diagnosis. He also noted the emergence of an adjustment disorder with significant elements of depression and anxiety. Dr Griffith made the observation that "there was evidence of some embellishment in the presentation." He expected an ultimately good prognosis for recovery.

 

13. He was also seen for Comcare in November 2000 by Dr Le Leu, an occupational physician. He accepted that the accident caused musculo-ligamentous strain to the neck and lower back, and expressed the view that the plaintiff had developed depression which he said was "partially related to his pain but also to the separation from his wife." He recommended a pain management programme, and this was undertaken at the Canberra Injury Management Centre in January 2001.

 

14. Dr Le Leu's report is broadly consistent with that of Dr Eaton, occupational physician, who reported to the plaintiff's solicitors in October 2000, and diagnosed whiplash injury, chronic musculo-ligamentous strain and neurogenic pain disorder.

 

15. As is often the case in common law claims where there has been Comcare involvement, I am not presented with all of the material involving the case. It is of course a matter for the parties to decide what material to tender, but it is apparent that he was seen by a psychologist, Mr Parsons , at the Injury Management Centre, but his report was not in evidence, although referred to by Dr Mickleburgh, a consultant psychiatrist who reported for Comcare in May 2001, and whose report was tendered in the plaintiff's case. He concluded that the plaintiff had a somatoform pain disorder associated with both psychological factors and a general medical condition with an overlay of depression and anxiety. He said that the cause of his presenting condition was organic soft tissue damage to the neck and back, and associated psychogenic chronic pain disorder. He related his impotence to this condition.

 

16. Dr Knox, a consultant psychiatrist, reported to the plaintiff's solicitors in January 2002. He noted the ongoing complaints of back and neck pain, and reports of what he described as significant but not compete impotence. He reported that

"There has been, in my view, a significant level of anxiety and depression as a consequence of his pain and disability, in my opinion amounting to a diagnosable Adjustment Disorder with Mixed Anxiety and Depressed Mood for the order of two years following the accident. His psychiatric health has been significantly better in recent months."

Dr Knox said that at interview his condition had resolved, and that the plaintiff considered himself to be no longer psychiatrically impaired. He said that

"while I would not expect Mr Veng to suffer psychological disorder in the longer term, he may well come to be anxious and depressed again in the face of other setbacks in his life related to his likely continuing physical disability. While Mr Veng has some potential for a partial physical recovery, it would appear that he is likely to be impaired in the long term for heavier physical work."

 

17. Dr Knox's finding of improvement in his psychological condition is consistent with the report of Dr Eaton of February 2002, where he said that Mr Veng

"appeared to be still quite fear avoidant concerning physical activity. He did appear however to be much improved psychologically and emotionally."

 

18. I accept the plaintiff's evidence and the medical evidence that there has been a degree of psychological sequelae from this accident and that his has had an impact on the plaintiff's sexual function. Urological examination has excluded any physical cause for this, so I accept that the impotence is psychological in origin. Mr Veng is of the view that this caused the breakdown of his marriage, but the fact is that this occurred only some months after the accident, and in the medical material around this time it is apparent that there were a range of factors at work here, as is always the case. The plaintiff's former wife did not give evidence. I take into account in assessing general damages that there has been a consequence for the plaintiff's sexual functions, but this does not go so far as to amount to a finding that the accident caused the matrimonial breakdown.

 

19. The strongest expert report on incapacity to work is the report of Dr Mickelburgh for Comcare in May 2001 which stated "At present Mr Veng has been classified as totally incapacitated from work." In the defendant's case doctors Le Leu and Billet accepted partial incapacity, while Dr Lange was of the view that there was no restriction on his employment capacity. Dr Voon, the general practitioner, says there is total incapacity, and it seems to me that Drs Lange and Voon are both so far outside the consensus of medical opinion as to be unreliable, and I am not persuaded by either report.

 

20. I accept that during the periods of light duties the medical evidence supports the period on incapacity payment. Since February 2001 the plaintiff has not worked at all, and although Dr Mickelburgh supported a view of total incapacity in May 2002, this does not seem to fit with the reports of Drs Eaton and Knox in early 2002.

 

21. In relation to future economic loss, the plaintiff's counsel argued the case for a substantial buffer on the basis that the plaintiff will need to undergo retraining for alternative duties. I accept that full duties as a kitchen hand does involve the type of lifting and repetitive bending that is unsuitable, and that he will need to move to lighter duties. He said that he had made some enquiries in relation to computer retraining, but had not taken this very far, and he acknowledged that with receipt of ongoing Comcare payments he was not very much worse off financially than when he was working.

 

22. There was no psychiatric evidence from the defendant. The most recent defendant medicine was a report from Dr Lange, who in April 2001 expressed the view that there was no organic basis to the plaintiff's "alleged conditions", and expressed the view that he was fully fit for work. He did not refer at all to the soft tissue injury diagnosed by all other medical practitioners, or to any psychological sequelae. Dr Lange's report is quite inconsistent with all of the other medicine, and I do not find it persuasive. I would regard the report in the plaintiff's case of Dr Voon, a general practitioner, in the same regard. Dr Voon reported in November 1991 that the plaintiff has post-traumatic lumbar and cervical disc lesions. This opinion is not supported by other specialist doctors who have examined the CT scans, and I am not persuaded by this report.

 

23. In February 2001 the plaintiff ceased work entirely at the hospital, and has been on compensation payments.

 

24. On all of the medical evidence I am satisfied that as a result of the accident the plaintiff sustained soft tissue injuries to his neck and back, and has aggravated and rendered symptomatic an underlying degenerative condition. I am satisfied that the CT scans show only degenerative changes, and that surgery is not appropriate in this case, as was the view of Dr Chandran. I am also satisfied that the plaintiff developed a psychological sequelae to the accident which has manifested itself in anxiety and depression, and some sexual difficulties. Dr Mulchay, a urologist, has confirmed that there is no physical basis for this difficulty. I accept Dr Knox's view in the plaintiff's case that this psychological condition had largely resolved by early 2002, although there is a potential for further episodes.

 

25. I accept the plaintiff's evidence, and that of Mr Clark his friend that he no longer engages in vigorous physical activities or heavier gardening, although he still takes an interest in his garden and roses, and is able to engage in some lighter activities with his son and takes an interest in his soccer activities.

 

26. The principle 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'."

 

27. In relation to general damages, I assess the plaintiff on the basis that the motor vehicle accident in October 1999 caused soft tissue injury in his neck and lumbar spine which has remained symptomatic, and also aggravated and rendered symptomatic some underlying degenerative changes in his lumbar spine. I am satisfied also that the ongoing pain and restriction of mobility and activity caused by this has lead to a degree of psychological difficulty, described by Dr Knox as an adjustment disorder, which has caused further difficulties with anxiety and depression and sexual function, although I accept Dr Knox's opinion that his has now largely resolved, although he may be prone to recurrence if his physical condition deteriorates.

 

28. Dr Knox's favourable prognosis in relation to his psychiatric condition, it seems to me, is significant also in relation to the future of his physical condition and complaints of pain. Dr Eaton, who reported for the plaintiff in October 2000, said that the prognosis was reasonably good for complete resolution of his symptoms and return to his pre injury level of fitness, but he also said that as he had developed a chronic pain disorder he would recommend further treatment. Dr Griffith, in his later report of November 2001 gave a more guarded prognosis, stating that pain and mood disturbance, which I take to refer to his diagnosis of adjustment disorder, being the principle priority at the time of the report. As his physical injuries are on my findings soft tissue musculo-ligamentous strain in origin, and as the most recent psychiatric report in March 2002 is favourable, it seems to me that the prognosis must be regarded overall as positive, and the more guarded approach taken by Dr Griffith based on a psychiatric component ought to give way to Dr Knox's views.

 

29. Taking all of the evidence into account I find award general damages in the sum of $45,000, with $40,000 attributable to past loss, giving rise to interest in the sum of $2,440 for a total award of $47,440.

 

30. Out of pocket expenses involved the Comcare payments, a sum paid by the NRMA in relation to physiotherapy, and an agreed sum of unpaid expenses which amounted in total to $17,449.12,which I award. A claim was made for future out of pocket expenses based on further pain management treatment, and the possibility of further psychological treatment. It seems to me that the evidence of Drs Knox, Griffith and Eaton justifies an award under this head in the sum of $5000.

 

31. Past economic loss was claimed on the basis of the plaintiff's time off work up until February 2001, and then on the basis of a total loss of capacity from that date. The claim is for a loss to the date of trial in the sum of $68,500.

 

32. The specialist medical evidence, it seems to me, does not support a finding of total incapacity. Dr Griffith in December 1999 said that the plaintiff was

"manifestly fit for work, and was fit to discharge his normal duties following his period of 13 days certified to do so post injury. There are no restrictions currently applicable."

Dr Griffith modified this opinion in his report of November 2000, saying

"Your client is in fact working part time. He will not suffer any significant injury to his spine should he work longer hours- the problem is effective pain management."

He suggested further pain management treatment, and then said

"The fact that his children are now of school age makes full time work and early or late shifts a difficult proposition for him while he is their principal carer. This of course is a social matter and not a medical one."

In his latest report on November 2001 he noted the plaintiff was off work, but did not address the question of work capacity.

 

33. Mr Robinson for the defendant noted that the plaintiff had conceded in cross-examination that he was not significantly financially worse off on his Comcare payments compared to his full earnings, and that as he now had primary care for his children, there was no real incentive for a return to shift work. The plaintiff said that he could vary his shifts, but certainly his pre injury shift work, when he and his wife were together and she provided primary care, would be inconsistent with being the primary carer for school age children.

 

34. Dr Eaton, occupational physician, reported in October 2000 that his disabilities prevented him from working full duties for full hours, and noted that his pain disorder lead to fear avoidance. He said that he was not fit for heavy duties and extreme bending,

"however with appropriate management and time he should be able to carry out duties which involve moderate physical activities.....While I would not recommend he work in any position that requires heavy physical activity, I believe that his condition could improve to the point where he could carry out most activities as a food preparation officer."

In his later report of February 2002 he said

"He remains unfit for heavy physical duties involving extreme bending and heavy lifting. While there has been some improvement in his condition he still remains partially disabled due to chronic pain.... Clearly his work capacity has been severely compromised however he should be able to work in a sedentary/light manual position without significant difficulty. He should not carry out any duties involving heavy lifting, extreme bending or twisting of the spine. Prognosis is still reasonable for further improvement in his condition and hopefully a return to the workforce. However whether he will be able to return to the duties of a food preparation officer remains to be seen. It would be therapeutic for Mr Veng to return to the workforce in a suitable position with suitable duties as soon as possible."

 

35. Dr Eaton's report of February 2002, while acknowledging a substantial impairment, does not, it seems to me, go so far as to say there has been a total loss of economic capacity. Dr Knox in his report of February 2002 said that the plaintiff was "likely to be impaired in the long term for heavy physical work." Dr Mickleburgh, the psychiatrist who reported for Comcare, said in his report of May 2001 that the plaintiff was then unable to work, although he was uncertain how long this would last, and said that it would best be determined by an orthopaedic specialist. No orthopaedic specialist has said there has ever been total incapacity.

 

36. For the defendant, Dr Le Leu and Dr Billett accepted partial incapacity, and Dr Lange expressed the view that there was little restriction.

 

37. Taking all of the medical evidence into account, I accept that the plaintiff has sustained an ongoing and significant loss of economic capacity, but I am not satisfied on the medical evidence that he has had a total incapacity since February 2001. I therefore discount the full claim to reflect this ongoing capacity, and award the sum of $56,000 for past economic loss. As this is broadly consistent with the past Comcare payments no award of interest is appropriate, as he has not been out of pocket.

 

38. The plaintiff has been paying tax on his Comcare payments, and so in accordance with the principle of Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 he is entitled to be compensated in the sum of $10,680 which I award.

 

39. The claim for future economic loss was particularised as a buffer claim. Mr Crowe for the plaintiff put it as a claim based on the plaintiff being out of the workforce for about another five years, and then requiring a period of retraining, for a claim in the order of $180,000. It seems to me that this goes well beyond the medical evidence. The orthopaedic evidence establishes only a limitation against heavy lifting or repetitive heavy work. While I accept that this does limit the plaintiff in respect of some of the heavier aspects of work in a large commercial kitchen, it does not amount to a total incapacity to work. The psychiatric evidence is, in the plaintiff's case, that there has been significant improvement in recent months. I accept the medical evidence that the precipitating factors leading to him ceasing work were a combination of his physical pain and psychological factors, but it seems to me on the medical evidence that this can no longer be made out. It seems to me that the plaintiff should be assessed for the future primarily on the basis of his physical condition, which amounts to soft tissue injury only, and which on the expert medical evidence imposes a limitation to lighter work, but not a total incapacity. In respect of future economic loss, I award the sum of $60,000, including a component for future superannuation.

 

40. A Griffiths v Kerkemeyer claim was particularised in the sum of $5000 for past assistance. This was based on assistance from his wife, who did not give evidence, and his children, and friends and neighbours. While I accept that his friend Mr Clark has provided some heavy gardening work, it seems to me that the evidence does not go beyond the normal give and take of domestic relations, and it seems to me that the medical evidence of these soft tissue injuries does not generate a need for paid assistance pursuant to this principle. I make no award under this aspect of the claim.

 

41. This amounts to a total award of $196,569.12 which I consider to be appropriate in all the circumstances and award, with costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 1 November 2002

Counsel for the Plaintiff: Mr R Crowe

Solicitor for the Plaintiff: Maliganis Edwards Johnson

Counsel for the Defendant: Mr M W Robinson

Solicitor for the Defendant: Phillips Fox

Date of hearing: 12 September 2002

Date of judgment: 1 November 2002