Johnson v Stone (Wilson) [2002] ACTSC 7 (1 March 2002)

Last Updated: 12 April 2002

Penelope Ann Johnson v Susan Gail Stone (Wilson) [2002] ACTSC 7 (1 March 2002)

CATCHWORDS

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

Supreme Court Rules, O 39 r 46

CSR Readimix (Australia) Pty Ltd v Payne [1998] 2 VR 505

Fry v McGufficke [1998] FCA 1499

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

Perri v Department of School Education [1998] 1 VR 591

Quirk v Bawden (1992) 107 FLR 455.

No. SC 355 of 2001

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 1 March 2002

IN THE SUPREME COURT OF THE )

) No. SC 355 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PENELOPE ANN JOHNSON

Plaintiff

AND: SUSAN GAIL STONE (WILSON)

Defendant

ORDER

Coram: Master T. Connolly

Date: 1 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $70,122.25

2. Defendant to pay the plaintiff's costs

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 22 August 1997 at the intersection of Canberra Avenue and Dominion Circuit Forrest in the Australian Capital Territory. The plaintiff was proceeding along Canberra Avenue on her way back from Fyshwick when the defendant proceeded through a give way sign into the path of the plaintiff. I am satisfied that the plaintiff collided with the side of the defendant's vehicle at a speed of about 60 kilometres an hour. Breach of duty by the defendant was properly admitted on the pleadings, and the matter proceeded before me by way of an assessment of damages only.

2. A problem arose at the outset of the hearing with the plaintiff indicating through her counsel that she wished to tender and rely upon a report from Dr Howse, a sports physician. The report had only been served the day before the hearing, and was dated that day, but it was apparent that Dr Howse had been treating the plaintiff since May 2001. It is most unsatisfactory where a party's solicitor is clearly aware that a treating doctor is involved, and yet signs a certificate of readiness indicating that all experts reports on which it is intended to rely have been served, only to spring on the defendant at the last minute a further report.

3. The rules relating to the service of experts reports well in advance of the hearing (O39 r46) are designed to achieve fairness between the parties, and to avoid the unnecessary waste of time and money which can be necessitated by an adjournment to allow a party to meet the surprise report. The process of listing conferences, the issuing of a certificate of readiness, and O39 r46 are designed to facilitate the efficient conduct of civil proceedings, and allow sensible negotiations to settle matters, by ensuring that each side knows the case it is expected to meet. This is obviously frustrated by the late service of an expert's report. In the normal course a party that seeks to late serve a report may expect that, at the request of the party taken by surprise, an adjournment would be granted, with the party seeking to introduce the late served report bearing the costs thrown away by reason of the adjournment.

4. In the circumstances of this case the defendant did not request an adjournment, and the matter was able to proceed. The late served report did, however, for the first time raise the issue of future medical expenses. The particulars in this matter, filed in September 2001, made no claim for future medical expenses, and the defendants were entitled to assume that that was the case they were preparing to meet. I did not grant the application by the plaintiff to amend the statement of particulars on the day of the hearing to include a modest claim for future out of pocket expenses, as it seemed to me that this new claim, based on Dr Howse's report, was something that the defendants did not have a fair opportunity to meet at the hearing.

5. The accident was one of considerable force, being a "t bone" type collision at about the suburban speed limit on the relevant road of 60 kilometres an hour. The plaintiff said that she had to be "peeled from the steering wheel", and it is apparent from the notes of the attending ambulance officers and the Canberra Hospital that she had chest pains from the impact.

6. Ms Johnson's main ongoing complaint is of neck and back pain, described by the various medical experts as soft tissue in nature. While chest pain was the only complaint noted by the ambulance officers and the hospital, her treating general practitioner noted complaints of lower back pain within days of the accident, and diagnosed soft tissue injuries at the time, and I am satisfied that the ongoing complaints of back and neck pain can be attributable to the accident.

7. The plaintiff gave evidence of extensive bruising at the time of the accident, including a bruise to her leg "the size of a mango". Counsel for the defendant put to the plaintiff that this was an exaggeration, and noted that there was no report of bruising on the hospital and ambulance reports. I note also that the general practice report states that a lower limb examination on the first visit was normal. At the end of the day I accept that the plaintiff was shaken up and sustained injuries to her chest and legs in the initial impact, but that the ongoing difficulties relate to soft tissue injuries to the neck and lumbar spine.

8. Dr Billett, an orthopaedic surgeon, reported for the defendant on 6 September 1999 that "as a result of the motor vehicle accident of 22 August 1997, Ms Johnson sustained a soft tissue injury to her neck, shoulders and lower lumbar region. The natural history of soft tissue injuries is for complete resolution and the soft tissue injuries would have resolved within a few months. I would thus not consider that there is any further relationship to the motor vehicle accident and any pain she now experiences would be attributable to degenerative changes that exist in the discs of her neck and lower lumbar region."

9. While Dr Billet thus accepts that her initial complaints of neck and back pain were due to soft tissue damage from the accident, he asserts that soft tissue injury will resolve within months. While this may be his view, it is not the experience of this court, where persistent soft tissue injuries are regularly brought before the court. An assertion by a doctor that soft tissue injuries all resolve within months is not, in my view, persuasive as a mere assertion unsupported by supporting science or medicine.

10. I note that in his later report of 21 February 2001 Dr Billett says that the plaintiff's ongoing pain "probably arises from degenerative changes which exist within the discs themselves and at the facet joints or uncovertebral joints of her cervical spine." He maintains that these are due to underlying degenerative changes, and that her soft tissue injuries from the accident "would have resolved at this stage." This again seems to be an assertion based on a belief, however genuinely held, that soft tissue injuries must resolve within a period of months, and I am not satisfied that such an assumption is made out.

11. The plaintiff's medicine consists of reports from her treating general practitioners, Dr Griffith, a consultant surgeon, Dr Speldewinde, a rehabilitation physician, and Dr Howse. Dr Griffiths reports soft tissue injuries comprising muscular ligamentous sprain to the cervical and lumbar sine, with headaches, and a degree of depression in his report of 2 November 1999 and in his later report of 13 February 2001 finds ongoing pain from these injuries, and notes a chronic pain syndrome. He attributes all of this to the accident.

12. Dr Griffith in his 1999 report takes issue with Dr Billet's assertion that soft tissue injuries should resolve within three months. He says "The prognosis of soft tissue injuries should be for resolution within a period of three months, as stated by Dr Billet. However, it is by no means unusual for persistent myofascial spasm and focal pain to continue and produce findings such as occur here. 7% of patients are symptomatic at three years, in spite of notional resolution of soft tissue injury".

13. Dr Speldewinde provided rehabilitation treatment, and in his report also supports the accident as the cause of the ongoing complaints of pain. Dr Howse in his late served report diagnoses the plaintiff as suffering from chronic facet joint sprain in the cervical and lumbar spine, attributable to the motor vehicle accident. He has provided treatments at these points, and I note that Dr Billet also recommends nerve blocks as an appropriate treatment.

14. Taking all of the medical evidence into account, I am satisfied that the accident , which involved considerable force, caused soft tissue injury to the plaintiff involving facet joint strain, which continues to generate pain and discomfort.

15. The defendant took issue with the plaintiff's level of complaints of pain, and put it to her that she was exaggerating. She said at one point in her evidence that she has headaches all the time, and that this has been the case since the accident, and at another point said that her headaches came on at unpredictable times. She has asserted that she takes Panadeine Forte, as strong prescription only analgesic, at the rate of 6-8 tablets daily, and during her recent six week overseas honeymoon, which involved travel through the Greek Islands, at the rate of ten a day. This level of consumption of Panadeine Forte is not supported by the medical records or the out of pocket expenses in relation to expenditure on medication, and is well above a consumption level that would be considered safe. I am satisfied that there has been a degree of exaggeration, but I remain satisfied that the plaintiff continues to experience pain and discomfort from the accident.

16. Ms Johnson was born in 1969, and educated to Year 12 level at Canberra schools. After completing year 12 she took a year off by way of a working holiday, and then again undertook year 12 studies, but obtained about the same outcome. She then entered the workforce, working mainly in retail photography and film processing. She has worked for the one film processor and retail photography outlet at Belconnen since 1993. This was full time work, but in 1997 she says that she decided to reduce her hours to part time, at about 23 hours, and try to develop her own business as a photographer. It is not in issue that she has continued to work at the retail job for the normal 23 hours from the accident. While she says she has had time off, this is not supported by employment records or sick leave forms, and is inconsistent with the various histories to doctors which all record ongoing employment at her pre injury level at the retail photo outlet.

17. The plaintiff's claim for economic loss is based on a buffer claim, particularised as follows:

"The plaintiff works part time as a printer at a photographic laboratory. The plaintiff also conducts a business as a photographer particularly photographing newborn babies at hospital and also some wedding photography. As a result of the injuries arising from the accident the plaintiff finds wedding photography very painful because of the need to carry around heavy camera equipment over several hours. She has been unable to properly attend to her photographic business to expand it and to ensure a regular flow of work. The plaintiff claims a buffer for her loss of earnings from her photographic business."

This claim is made in respect of past and future economic loss.

18. Counsel for the defendant was critical of the way in which this claim had been particularised. I note, however, that the certificate of readiness had been completed by both parties on the basis that all particulars requested had been furnished. I was not prepared to rule that the particularised claim was so vague as to be meaningless, and to proceed on the basis that there was no economic loss claim before the court.

19. The pleading of buffer type claims has been accepted practice in this court for many years. In Fry v McGufficke the Full Court of the Federal Court endorsed the use of a global buffer in an economic loss claim saying:

"...in our view the Master was well entitled, given all the uncertainties about the plaintiff's future...to opt for an intuitive, global assessment. In saying this, we do not doubt that, where more precise arithmetical analysis can be undertake, it is in general desirable that this be done. We agree with the Full Court that, as Stephen J in Todorovic v Waller (181) [1981] HCA 72; 150 CLR 402 cautioned"

"The concern of courts should not be, as is often said, lest processes of assessment bear an illusory air of precise accuracy, but rather lest their outcomes bear the all to real appearance of gross inaccuracy in attaining anything like a proper measure of compensation."[1998] FCA 1499.

20. The Victorian Court of Appeal has criticised the use of a global buffer in matters where, in the court's view, the use of the buffer approach by the trial judge had no relation to the evidence (Perri v Department of School Education [1998] 1 VR 591, CSR Readimix (Australia) Pty Ltd v Payne [1998] 2 VR 505), but it seems to me this does not preclude this methodology.

21. The difficulty is that the plaintiff must still establish a claim, and the particulars should give the defendant a realistic opportunity to assess the claim. Where an unquantified buffer is set out in the particulars, it is hard to see how it could later be said that a defendant failed to make a realistic offer of settlement for the purposes of an application of Calderbank principles pursuant to Quirk v Bawden (1992) 107 FLR 455.

22. I accept that in this accident the plaintiff sustained soft tissue injuries to her chest, which were her immediate cause of complaint, and also to the neck and lower back, and that these latter injuries have persisted over time. I accept that this is now best explained as facet joint strain, as set out in the report of Dr Howse, and as accepted as being present, but not attributable to the accident, by Dr Billett.

23. I accept that these have caused ongoing complaints of pain at the neck and back, and have caused associated headaches, although I am not satisfied that these are as extreme as the plaintiff has described. I accept that the plaintiff takes regular medication, but I am not satisfied that she takes these as claimed, or that such medication, if she does take it at the levels claimed, is reasonable or appropriate.

24. Ms Johnson has been able to continue to work her normal pre accident hours as a film processor and retailer. She is generally independent in activities of daily living. While there have been indications of a guarded prognosis on the basis of the long term nature of the complaints of soft tissue injury, I note that Dr Howse said that the response to the treatment he is providing shows a 60-70 per cent improvement, and Ms Johnson did indicate that she has benefited from his treatment. He said that she will continue to experience "intermittent episodes of pain in the cervical spine with secondary headache."

25. Dr Griffith in his report of 2001 was critical of the treatment regime which had been undertaken to date. He recommended an assessment by the Canberra Injury Management Centre with a view to an approach to treating chronic pain syndrome. This does not appear to have happened, nor was it claimed as a future expense. He said "A policy of passive observation cannot be justified in the presence of symptoms of this nature and magnitude, and the severely negative effects they are having on her ability to function in all aspects of her life. One would hope that appropriate treatment, targeted at the various manifestations of her symptoms, she would show significant improvement."

26. I note that Dr Griffith observed elements of depression and recommended treatment, which does not seem to have occurred, the only medication being analgesia, despite depression being pleaded as a consequence of this accident.

27. 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'."

28. In respect of general damages, I assess the plaintiff on the basis of ongoing pain in the neck and back arising from soft tissue injuries, particularly facet joint strain. I note that she is now receiving treatment for this, which is an invasive procedure, but that the prognosis is for improvement. I accept that there has been a degree of depression and the development of a chronic pain syndrome, but that these conditions have not been specifically treated to date. I accept that the plaintiff continues to take analgesia and that the level at which she claims to be taking this medication is quiet inappropriate. I find that there has been no disc involvement.

29. I assess general damages in the sum of $45,000, with $30,000 attributable to past loss, generating interest of $2700, for a total award of general damages in the sum of $47,700.

30. Out of pocket expenses were claimed in the total amount of $7422.25, of which $4648.40 has been paid by the NRMA. I award this sum. No future out of pocket expenses claim was particularised, and I did not grant leave for a last minute amendment to the pleadings for the reasons set out above.

31. In respect of economic loss, the plaintiff's counsel submitted that a buffer claim was made out, although he said that this was not a "substantial $50,000 claim". It seems to me that the plaintiff can at best point to a loss of an opportunity in respect of the part time photography venture.

32. The medical evidence does not support a substantial loss of economic capacity. Dr Griffith in his first report of 1999 said "she is fit for work and discharging full duties. She does not require occupational rehabilitation." In his later 2001 report he says "Your client remains fit for work, coping with the aid of large doses of Panadeine Forte, a thoroughly unsatisfactory situation long term". I have noted the unsatisfactory nature of the plaintiff's claimed ingestion of analgesia, which is not recommended by any treating doctor. Dr Speldewinde in his report of July 1998 said "Penny Johnson fitness for work has been demonstrated with her continued normal hours of duties in the photographic laboratory with some lifting restrictions. It is anticipated that these restrictions will be progressively reduced and she should be undertaking largely normal duties in the next three months." Dr Howse said in his late service report of February 2002 "Although she continues to experience symptoms mainly consisting of pain and some decrease in range of movement, she remains fit to continue with her present work duties in the photo laboratory."

33. No doctor in the plaintiff's case thus sets out the basis for any substantial economic loss claim.

34. The nature of the claimed photography business did not fully emerge in the evidence before me. The first record of any source of income other than her employment at the photo lab is in her 1996 income tax form, in which she discloses income from a business called "The Team Photographers" of $3396 and expenses of $3529, for a taxation loss of $133. There is then no reference until the 2000 tax year, when a business "Portraits by PAJ" is disclosed as showing an income of $2300 and expenses of $1421 for a net profit of $879.

35. Ms Johnson says that she did not disclose the business on her 1997, 1998 or 1999 tax returns because she had been advised by her tax accountant that the business was more in the nature of a hobby given the turnover and loss. I accept this evidence. Her 1998 tax return was not before me, and she said that this was not available because she filled this in herself using the forms provided by the Tax Office rather than utilising the services of a tax accountant.

36. Accepting this evidence as true, it does show that the business was only in its infancy in 1996, and that in the year before the accident, being 1997, it had such a low turnover and lack of profit that the plaintiff's opinion, based on her tax agent's advice, was that it was a hobby and not a business which would allow her to offset the loss against her wages income.

37. Ms Johnson said that she had "$15,000 to $20,000" worth of equipment for her business, but this does not show up in any depreciation schedule, and she could not explain how she came to this figure, other than referring to a replacement value estimate for insurance purposes. Ms Johnson gave no evidence as to any particular training or education leading to any qualifications as a photographer, nor was evidence lead from others saying that her work was of a high professional standard and comparable to commercial photographic services.

38. I find that the plaintiff had and still has an interest in photography, which she would like to develop into an income source, but that this has not moved beyond a small-scale venture. At most, it seems to me, the economic loss, based on both the medical reports and the nature of the evidence, is that she may have experienced some inconvenience which would have impacted on her ability to undertake additional work, whether by way of her photography business, or additional hours in her employed position

39. Taking all of the evidence into account, it seems to me that the plaintiff has shown some limitation as a consequence of the injuries she sustained in the accident, but that this must sound only as a modest buffer, which I would assess in the sum of $15,000 inclusive of interest and in respect of past and future economic loss.

40. This amounts to a total award of $70,122.25 which I consider to be appropriate in all of the circumstances of the case and award, with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly

Associate:

Date: 1 March 2002

Counsel for the Plaintiff: Mr R. Mildren

Solicitor for the Plaintiff: Hanstein, Stacy and Nymann

Counsel for the Defendant: Mr A. J. J Renshaw.

Solicitor for the Defendant: Abbott Tout

Date of hearing: 12 February 2002

Date of judgment: 1 March 2002