Meredith v Baldwin [2002] ACTSC 51 (7 June 2002)

Last Updated: 20 June 2002

Erik Meredith v Jason Baldwin [2002] ACTSC 51 (7 June 2002)

CATCHWORDS

DAMAGES - Personal injuries - Soft tissue injury - No issue of principle

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

No. SC 859 of 1997

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 7 June 2002

IN THE SUPREME COURT OF THE )

) No. SC 859 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ERIK MEREDITH

Plaintiff

AND: JASON BALDWIN

Defendant

ORDER

Coram: Master T. Connolly

Date: 7 June 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $174,578.18

2. Defendant to pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred on 12 August 1997 at the intersection of Wentworth Avenue and Telopea Park at Kingston in the Australian Capital Territory. The plaintiff was proceeding along Wentworth Avenue on his way to work at Fyshwick and was struck from behind by the defendant's vehicle. At the time he was stationary at a red traffic light, and was leaning down across the front seat to change a tape in his vehicle. Liability was not in issue, and the matter proceeded by way of an assessment of damages only. The plaintiff sustained soft tissue injuries to his neck in the accident. He has undergone a variety of treatment modes without success until reference to the pain unit at the Royal North Shore Hospital. There he was assessed and has been treated with a form of nerve block procedure at C5, which he says has achieved a significant improvement in his pain. It is his case that he will continue to need access to this form of treatment.

2. The plaintiff was born in 1970, and after completing year 12 studies gained entry to the Royal Military College at Duntroon with a view to training as an Army helicopter pilot. He developed a shin condition which required surgical intervention, and while recovering from this sustained further injuries by falling down stairs in his dormitory. He formed the view that his injuries would preclude him from obtaining a position as a helicopter pilot, and he left the Army in June 1990, undertaking clerical work at the Defence Department and undertaking some pre-tertiary studies. In 1991 he commenced studies towards a Bachelors Degree in Communications at the University of Canberra. Despite his injuries at Duntroon he was, I am satisfied, a very fit young man, and he continued an interest in outdoor sports and competitive skiing. His studies were delayed by periods working as a ski instructor overseas, but he completed his degree at the end of 1996. His ambition was to work in advertising or film and television.

3. He was unable to find an appropriate job, and in mid 1997 he commenced employment with an employment agency Allstaff working as a file sentencer at a Fyshwick archives repository. This work involved the plaintiff undertaking clerical type work, examining old public service records with a view to either authorising their destruction or directing them to archival storage. He was on his way to this employment on the morning of the accident, and so was covered by workers compensation.

4. The accident occurred, I am satisfied, as the plaintiff was stationary in his small Mazda 323 sedan at the lights, and was bending forward and across to adjust his stereo. The lights changed to green, and a vehicle from behind sought to change lanes to get past the plaintiff. I am satisfied that he was struck from behind by a larger four wheel drive vehicle which struck his rear drivers side, pushing his vehicle forward, and causing sufficient damage to the vehicle that it was later written off. I am satisfied that it was a collision of considerable force, and that it occurred when the plaintiff was in a vulnerable posture within the vehicle.

5. Mr Meredith says that immediately after the accident he noticed that his neck was in pain.

6. He was able to drive his car to his place of employment, but complained of neck pain, and left work to attend Calvary Hospital. He was there x-rayed, and the next day he attended on his general practitioner, Dr Milosovic. In a report to the workers compensation insurer of 2 September 1997 Dr Milosovic stated:

"Mr Meredith presented to my surgery on 13 August 1997 stating that he had been involved in a motor vehicle accident when his car was hit from behind by another vehicle when his car was stationary. He experienced immediate discomfort in his neck region which was severe enough for him to be taken to Calvary Hospital.. I understand that x rays were performed at the Hospital of his cervical spine region which were reported to be normal. On examination on 13 August he showed a lot of tenderness in his cervical spine. He had a decreased range of movement in his cervical spine in flexion and extension and lateral rotation. His neurological examination including upper limbs was normal."

7. Dr Milosovic diagnosed a flexion extension injury to his neck, advised rest and anti-inflammatory medications, and indicated a generally favourable prognosis for a return to work.

8. Mr Meredith returned to work the day after seeing his general practitioner, but says that sitting at his desk examining files caused aggravation to his neck pain, and he was unable to continue. He obtained medical certification for time off work from his general practitioner. He was prescribed anti-inflammatories, and attended physiotherapy, but he continued to have difficulties with his neck. He was assigned to a rehabilitation case manager through the workers compensation insurer, and through them he was placed on a return to work trial at a local television company as a floor manager in November 1997. He was still undertaking physiotherapy at this time, and continued to experience neck pain. He was sent for a CT scan in December 1997 which revealed moderate posterior bulging of the disc at C4/5 and slight posterior bulging at C5/6, and with his ongoing pain he says that he was advised not to continue with this work trial. He says that he was disappointed with this, as it was an opportunity to break into his preferred field of employment, but he followed medical advice and ceased the work placement.

9. He was referred to his first specialist, Dr Schellenberger, for a medico legal report in December 1997 after the receipt of the CT scan. Dr Schellenberger diagnosed a cervical soft tissue injury with probable cervical disc injury at the two levels shown on the scan, and expressed the view that he was capable at that time of part time light work only, with the ability to return to full hours at light clerical duties over the next twelve to eighteen months. Dr White, a neurosurgeon, saw him in October 1997 before the CT scan and expressed the view that the plaintiff's symptoms were suggestive of some disc injury or substantial ligamentous injury. In February 1998, with the benefit of the scan, he noted the disc bulging without nerve impingement which he accepted was attributable to the motor vehicle accident. He advised ongoing conservative treatment and the avoidance of heavy duties or impact activities.

10. On the basis of the CT scan the plaintiff was referred to Dr Chandran with a view to advice on surgery, and as a result an MRI was undertaken in March 1998. Dr Griffith, a consultant surgeon, in a report to the plaintiff's solicitors states that this MRI

"fails to confirm focal disc protrusion or even disc bulging. There is also no evidence of degenerative change or nerve root embarrassment"

I am satisfied that indeed the disc bulges originally thought to be present and of some significance from the CT scan are in fact not of significance. Dr Griffiths diagnosed musculoligamentous sprain to the cervical soft tissue as the likely cause of his ongoing pain. He advised ongoing conservative treatment, but noted that "now that major disc injury has been ruled out by the MRI one need not worry about precipitating major injury by cervical exercise", and recommended a return to part time work.

11. Dr Griffith noted that the plaintiff had previously been a very active and fit person, and was restricted in his activities and limited by pain, and had become somewhat frustrated by the varying diagnoses he had been receiving. He said

"The prognosis of soft tissue injury of this nature is usually for gradual resolution though this may take two, or on occasion even three years. In a previously very fit sportsman it is disturbing that they have persisted to the extent currently evident for this long. Soft tissue injuries usually respond in a period of three months, though persisting myalgia is not at all unusual for protracted periods. His emotional state and frustration are of cardinal importance as outlined in health access notes and should be addressed in a pro active fashion."

12. In May 1998 the plaintiff, who was still then on workers compensation benefits, moved to Sydney at the invitation of his girlfriend. He undertook some chiropractic treatment in Sydney with some benefit. He says that he looked for part time work in Sydney, particularly in the film industry, but apart from some, apparently unpaid, work as an extra he was unsuccessful. He says that it is necessary to start at the bottom in the film industry, and this means being able to move around objects on a set and pitch in with lifting and like duties, which he is unable to perform. He did not give evidence of efforts to obtain employment of a clerical nature, although all of the medicine tendered in his case, with the sole exception of a general practitioner report of 3 December 1998, suggests that he has always been fit for light duties on restricted hours. Dr Griffith reviewed him in November 1999 and found he continued to suffer from cervical pain from an acute musculo ligamentous sprain, with persisting anxiety and depression, but said

"he would in my opinion be fit enough to undertake employment not requiring the level of exertion of a heavy labourer."

He recommended a pain management programme.

13. He obtained some temporary filing work with the New South Wales Department of Education in January 2000, and commenced units of study at Sydney University towards a Master of Arts degree in Visual Arts. In July 2000, by agreement, his workers compensation incapacity payments were ceased. In August 2000 he attended the pain unit at the Royal North Shore Hospital in Sydney.

14. At this time he was using pain relief medication, and also significant alcohol consumption. A report from Dr Molloy, Director of the University of Sydney Pain Management and Research Centre of April 2002 says it was suspected that his pain was associated with facet joint injury, and as a consequence branch blocks at C5/6 and C5/6 were performed in September and October 2000. This produced encouraging results, and he was assessed as a suitable candidate for a rhizotomy at these levels, which involves the use of a laser to block the nerves at the joints, administered by deep penetration with a needle.

15. There was some difficulty in obtaining approval from the insurer for these procedures, which were eventually performed on 20 September 2001. The plaintiff and Dr Molloy say that this has been a successful procedure.

16. He obtained employment in a call centre in Sydney in March 2001, originally for 36 hours a week, but with decreasing hours due to neck pain. He left this employment in July 2001 to travel overseas, and on return undertook the rhizotomy procedure and then an intensive pain management programme at Royal North Shore. This has resulted in him reducing his alcohol consumption, and ceasing pain relief medication. He says that he has experienced dramatic relief from the rhizotomy, although there is a degree of pain now returning. Dr Molloy said in his report that:

"He has responded well to the rhizotomy that was performed. Depending upon his progress he may be a candidate for further rhizotomies if his neck pain recurs and is troubling him. It is unclear at present how many times this can be repeated, but it is considered that with each treatment the patient would respond with significant pain reduction for six to nine months."

17. Mr Meredith has been examined by Dr Stevenson and Dr Schaefer for the defendant. Dr Schaefer accepted that the motor vehicle accident would have produced some soft tissue injuries, but felt that the plaintiff was exaggerating his symptoms. Dr Schaefer states in his report of July 1999:

"The motor vehicle accident that Mr Meredith described would be consistent with the existence of some mild symptoms of soft tissue sprain occurring in the early stages, but it is the natural history of symptoms of that nature to settle down satisfactorily within a period of six weeks. It will be observed that a period of nearly two years has now elapsed and it is impossible to conceive that Mr Meredith has failed to recover from early symptoms of soft tissue sprain following this long time interval."

18. With respect to the doctor, I do not think that this is at all impossible to conceive. Dr Schaffer has, it seems to me, made a logical error. He states, and this seems to be common medical knowledge, that it is the natural history for soft tissue injuries to resolve after a relatively short period, which he states to be six weeks. I will accept this to be true. He then says more than six weeks having elapsed and the plaintiff still complaining of pain, it is impossible to conceive that he has failed to recover. The difficulty, of course, is that while he has asserted that it is the natural history of soft tissue injury for symptoms to settle, the statement should really be that most cases follow this pattern, but some do not. The plaintiff's case, of course, is that he has not followed this course, and he has a range of medicine to support this, and indeed now has the studies conducted at the pain clinic which has, in Dr Molloy's opinion, established a source for the pain by way of facet joint block injections.

19. In his first report of February 1998 Dr Stevenson said that

"It appears reasonable to accept that Mr Meredith developed some cervical pain following the rear end impact injury as described. However, I have considerable reservations that his present apparently extreme functional limitation and disability was indeed caused by such an accident."

20. Dr Stevenson stated that Mr Meredith displayed a greater restriction of movement on formal examination than on informal examination, and this is an entirely appropriate observation in a clinical context, particularly in the context of soft tissue injuries where there is no objective radiological evidence and the physician is dependant upon complaints of pain and restriction of movement. Dr Stevenson goes further, however, in volunteering that he has made observations from his window of the plaintiff performing normal movements in going across a carpark to his car. I have on previous occasions been critical of this type of observation. An expert medical opinion is of assistance when it is confined to clinical observations. Sleuthing by way of covert observation of what a plaintiff can do in a carpark is best left to those private investigators so often called upon to produce video film in personal injuries cases. Where this occurs the court can see the film and draw its own conclusions. No film was produced in this case. Neither the plaintiff's counsel nor the court can really test Dr Stevenson's claimed observations from his window as to the plaintiff's claimed behaviour in the carpark.

21. Dr Stevenson, while being quite critical of much of the conventional approach to so called whiplash injury (in his November 2001 report he questions the benefit of any physiotherapy) noted that the plaintiff "seems to have benefited from the ADAPT programme with is a good and evidence based pain management programme." He also expresses some guarded support for the nerve block treatment, saying

"I have no information on the rhizotomies or nerve blocks with this man has undergone. There is some evidence that a subgroup of so-called chronic whiplash type patients may have a cervical zygoapophyseal joint source for their pain. To establish this requires a series of differential nerve blocks done according to a specific protocol recommended by the International Spinal Injection Society. If these guidelines have been fulfilled, and only then, is it possible to say that there may be a cervico-apohysial source for this pain. I have, however, seen no specific evidence for or against this."

22. I am satisfied that the program at Royal North Shore Hospital is a properly conducted program and that the rhizotomy has been performed appropriately and has achieved a good result with the plaintiff. On the whole, I prefer the medical reports of the plaintiff in this case. They seem to be reasoned and cautious, and indeed throughout the period of examination, with the exception of one report from the general practitioner, they have consistently indicated that the plaintiff remained fit for at least part time work. I am satisfied that, after a number of false leads, in particular the CT scan in late 1997, a source for the plaintiff's ongoing pain has been found, and the procedure performed by way of the rhizotomy has produced significant benefit. I find the defendants medicine unconvincing in so far as it asserts that soft tissue injury must by its very nature resolve after a limited time frame, and so any ongoing complaint must be exaggerated.

23. I assess the plaintiff in respect of general damages on the basis of ongoing soft tissue injuries, the source of which have now been located in the facet joints, and which have proved amendable to a treatment. I take into account that this is an invasive and unpleasant treatment, requiring a deep injection and that this will be repeated, but I also find that the plaintiff has had very good results following the treatment, to the point, I am satisfied, where he is after the intervention and the pain management programme, able to function quite fully with what I am satisfied are residual nuisance value symptoms. I note that he has been able to further his studies, and is developing an expertise in a form of computer assisted graphic animation which he hopes will lead to rewarding employment in the film industry. I take into account that he was a very fit and active man before his injury, and has been significantly restricted for six years, but the prognosis for the future seems to me to be for a return to higher levels of activity. I would award general damages in the sum of $42,000, with $35,000 for the past generating interest of $3360, for a total award of $45,360.

24. Out of pocket expenses were agreed in the sum of $22,498.18 which I award. In relation to future out of pocket expenses, I am satisfied that the plaintiff will continue to avail himself of the treatment provided by way of the rhizotomy which I am satisfied cost about $1100 a time. The medical evidence is that he will have at least another two or three such treatments. There is also a recommendation from Dr Molloy at the pain clinic for a further course of psychological counselling, at a cost of about $1450. The plaintiff has, as a result of his previous treatment been able to move away from pain relief medication, and while it is hoped that this may continue, he may again require medication. I would award the sum of $10,000 by way of a buffer against future medical costs.

25. Past economic loss was particularised on the basis that he has had a total loss of employment due from the accident to the date of the hearing, which is claimed at the rate of $400 net per week, generating a claim to date of trial of $98,800.His counsel acknowledged that from this must be deducted his earnings in those few part time jobs that he has undertaken, in the sum of $8350, and he also acknowledged, properly, that some discount should be made against the fact that he has undertaken some further training and travel during the period from the accident to trial, and suggests a 15% discount, for an award of $75,600. I am not satisfied that this is made out.

26. On all of the medicine, with the sole exception of one report of Dr Milosovic where he says the plaintiff is not at this time fit for any work, the plaintiff is assessed as capable of performing at least part time light work. He has worked in clerical jobs before and after the accident, and he had worked in retail while a student. He says that he looked for part time work in the film industry in Sydney without success, but he did not give evidence of any real efforts to find alternative work. He has undertaken additional study towards his Masters degree in visual arts, and he has been obtaining skills in respect of computer animation. He has had periods, particularly in late 2001, where he was required to attend a full time pain management course, and this would, it seems to me, have meant that he would have had to give up part time work. There is also evidence that he had an entirely unrelated condition that required some medical attention in 2001. I am not satisfied that due to the accident he has had an economic loss as particularised, but I am satisfied that the ongoing pain and restriction in movement and activity has, at least until the date of the hearing, restricted his ability to work full time and limited him to light part time work.

27. His employment at the time of the accident was, I am satisfied, something of a holding position, and he was keen to move on to positions where he could fulfil his ambitions of working in advertising film or television and utilising his degree qualifications. I am satisfied that this has been difficult given his condition. The particularised claim being based on his earnings at his clerical type job as a file examiner, probably understates to an extent his ability to have earned an income commensurate with his skills education and training, and I am satisfied that but for the accident he would have been able to earn a higher level of income, so I must also bear this in mind.

28. It seems to me that an award of $60,000 in respect of past economic loss covers all of these factors. It can be seen as a discount from the particularised claim, or as a buffer award. Interest should be awarded on the net loss, bearing in mind that the plaintiff was in receipt of workers compensation payments until mid 2000, in the total amount of $46,783. I award interest on the balance, which generates interest of$3172. I award a total of $63,172 in respect of economic loss.

29. Due to the past incapacity payment there is also an award pursuant to the principles of Fox v Wood agreed in the sum of $7148.

30. The plaintiff also makes a claim for an award for future economic loss, which was particularised as a claim for full or partial loss of an earning capacity in the range of $400 per week for the next two to five years. The medical evidence certainly does not in my view support the proposition that he is not capable of holding full time employment, and it is his case that he intends to seek work, initially part time but moving to full time. He hopes to find professional employment utilising his skills in computer animation techniques, which is an emerging industry, particularly in Sydney where he lives. It seems to me that an award based on two years restriction to part time earnings would be appropriate on the basis of all the evidence, and I award the sum of $20,000 as a buffer in respect of future economic loss, calculated on the basis of an equivalence to a loss of half of the claimed $400 net per week for two years.

31. A claim in respect of loss of superannuation was also particularised. While no precise evidence was lead on this claim, there is a statutory requirement to augment salary with superannuation, and it seems to me appropriate to make some award based on this, noting that I have awarded a total of $80,000 in respect of past and future economic loss. I would award the sum of $6400 in respect of loss of superannuation entitlement, being 8% of this sum, taking into account the changes to the statutory rate over time.

32. This amounts to a total award of $174,578.18.which I award, with costs.

I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 7 June 2002

Counsel for the Plaintiff: Mr Crowe

Solicitor for the Plaintiff: Maliganis Edwards Johnson

Counsel for the Defendant: Mr O'Connor

Solicitor for the Defendant: Abbott Tout

Date of hearing: 7 May 2002

Date of judgment: 7 June 2002