Perez-Coronado v Ferguson & Hopkins [2002] ACTSC 80 (23 August 2002)

Last Updated: 28 August 2002

Sofia Diega Perez-Coronado v Frederick Ferguson & Janelle Hopkins [2002] ACTSC 80 (23 August 2002)

CATCHWORDS

DAMAGES - Personal injury - Motor Vehicle Accident - Soft tissue injuries - Aggravation of previously intermittently symptomatic degenerative condition in left shoulder and spine - No issue of principle

Australian Postal Corporation v Bessey [2001] FCA 266

Griffiths v Kerkemeyer (1977) 193 CLR 161

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

Ramsay v Watson (1960) 108 CLR 463

Wilson v Piesley (1975) 7 ALR 571

No. SC 788 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 23 August 2002

IN THE SUPREME COURT OF THE )

) No. SC 788 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SOFIA DIEGA PEREZ-CORONADO

Plaintiff

AND: FREDERICK FERGUSON

First Defendant

AND: JANELLE HOPKINS

Second Defendant

ORDER

Coram: Master T. Connolly

Date: 23 August 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff against the defendants in the sum of $53,111.07

2. Defendants to pay the plaintiffs costs

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 13 August 1999 at the intersection of Matina and Bungonia Streets in Narrabundah in the Australian Capital Territory. I am satisfied that the accident occurred as the plaintiff was stationary attempting to execute a turn and was struck from behind by a vehicle owned by the first defendant and driven by the second defendant. Liability is not contested and no issue arose as to contribution. There is a photograph in evidence of the damage to the plaintiff's vehicle, which indicates an impact of some force. The plaintiff complains of neck, shoulder and back injuries and ongoing pain and disabilities.

2. There is a degree of common ground between the plaintiff and defendant medical reports that the plaintiff sustained soft tissue injuries in the accident and now has symptoms consistent with a degenerative lumbar and cervical spine. The expert medical reports have all proceeded on the basis that the plaintiff was previously asymptomatic, so they have provided opinions based on the accident rendering symptomatic a previously asymptomatic degenerative condition. It is the defendant's case that the plaintiff had a prior history of neck and back pain and left shoulder pain.

3. The plaintiff was born in 1953 in Nicaragua. She left school at the age of 16 and married, having three children of that marriage before her husband left her. She commenced a de-facto relationship with her present partner when she was about 25 years of age, and they lived in Costa Rica for a period before migrating to Australia in the mid 1980's. The plaintiff has some English, but she elected, as is her right, to give her evidence through an interpreter.

4. She says that at the time of the accident she was most concerned about her daughter who had been sitting in the back seat and complained of neck pain. She took her to the local doctor that night, and it was not until the next day that she herself sought medical attention at her local general practitioner. There is a report from Dr Moulding of the Narrabundah Family Practice that reports an examination by Dr Langtry on 14 August 1999 where the plaintiff reported pain in the neck, upper back and lower back, Dr Langtry who was on duty at Dr Moulding's practice diagnosed whiplash injury and ordered x-rays which showed no damage. She saw Dr Moulding on 20 August who prescribed analgesia and anti-inflammatories and recommended massage. On 6 September physiotherapy was recommended.

5. Mrs Perez-Coronado changed her medical care in October 1999 when she presented at the Oasis Medical Centre for treatment by Dr Turtle. Dr Turtle is a general practitioner who is fluent in Spanish, and I accept that this was the reason for her change of medical practitioner. He took a history of neck, left shoulder and upper back pain following the accident, and no prior history of neck back or shoulder pain.

6. Mrs Perez-Coronado continues to complain of neck, back and shoulder pain. She has been examined by Drs Griffith and Newcombe for expert opinion in her own case, and Drs Schaeffer and Battlay for the defendant, and it seems to me that these reports are broadly consistent in accepting a degree of underlying degenerative change in the lumbar and cervical spine and the left shoulder, the symptoms of which have been aggravated by the accident. The defendant's doctors made the observation that it is more commonly the right shoulder that is aggravated in a rear impact collision for a driver due to seat belt strain, but accepted that the process of bracing on the steering wheel could produce the symptoms complained of by the plaintiff in the left shoulder. The defendant's doctors express the view that the effects of the aggravation have now passed.

7. The plaintiff also complains of a psychological sequelae of the accident in the way of a degree of anxiety and depression, and an ongoing fear of driving. She denied any prior psychological difficulties, although she acknowledged in cross-examination discussions about stress and ongoing tiredness with her general practitioner before the accident.

8. The plaintiff has never worked in Australia, but at the time of the accident she had enrolled in a cake decorating course at the Canberra Institute of Technology, and it is her case that she had to cease this course due to her accident related disabilities, and that but for this she could have developed a business as a cake decorator.

9. A principal issue in this case was the medical history of the plaintiff. She agreed that she had told all doctors that she had no prior history of neck back and shoulder pain, and this was the basis on which the experts have prepared reports. The plaintiff was cross-examined on her notes from Dr Moulding's practice, which had for many years been her family practice. There is a note of 18 October 1991 where she is recorded as complaining of neck pain and back pain (thoracic). The plaintiff says that she does not remember this and suggested her children translated something wrong.

10. On 24 February 1992 the notes record a complaint of sharp pains in the back and numbness in the arms. The plaintiff says that she cannot remember this, but does recall gall bladder problems at the time which are also recorded in the notes. She later said that she had an x ray on her back and there was a problem with one of the discs.

11. On 11 March 1992 there is a record of a complaint of thoracic pain and left inter scapular pain. It was explained to her in cross-examination that this refers to left shoulder pain. She says that she does not remember complaining of shoulder pain. There is another record of left shoulder pain on 31 March 1992. The plaintiff maintained that she never had a left shoulder problem, and again blamed poor interpretation by her children.

12. There were other complaints of arm pain in February 1985. Mrs Perez-Coronado denied this, but acknowledged a complaint in the same note of an eye difficulty. Again, the plaintiff indicated this may be a translation difficulty. While I accept that the plaintiff does have difficulty with English, I am not satisfied that her extensive medical records with Dr Moulding are in error due to translations on each occasion where neck, back, shoulder or arm pain is recorded, where she acknowledges other aspects of the notes to be accurate

13. Although the plaintiff says that she transferred to Dr Turtle after the accident because he was fluent in Spanish, she continued to see Dr Moulding through to 2001 for general medical purposes. She said that this was because his practice was convenient. It was put to her by the defendant that she had chosen a different general practitioner, Dr Turtle, for the purposes of her accident related complaints because he did not have any knowledge of her prior history. This was denied, but I am satisfied that the history given by the plaintiff to Dr Turtle has been misleading, and there have been earlier complaints of pain in the regions where she presently complains of accident related pain, and where there is a consensus between the doctors that there is a degree of degenerative change.

14. No doctors were required for cross-examination. Although there was common ground in the medical reports that the accident caused symptoms in an otherwise asymptomatic degenerative condition in her neck back and left shoulder, I am satisfied that the plaintiff had had prior history of complaints of pain in these regions. I am satisfied that the notes of the complaints are accurate, and I do not accept the explanation that there were errors of interpretation. I am satisfied that this history was known to her treating general practitioner, but denied to specialists and to a general practitioner, fluent in her language, that she attended after the accident but only for treatment for her accident related condition.

15. An expert opinion is always dependent upon the underlying history upon which it is based being made out on the evidence at trial (Ramsay v Watson (1960) 108 CLR 463). Where the expert evidence is that motor vehicle accident trauma has resulted in soft tissue injuries and rendered symptomatic previously asymptomatic degenerative changes, and it is shown that there was in fact a history of previous symptoms at those sites of pain, the expert opinion is undermined. In this case I find that the motor vehicle accident has caused soft tissue injuries, and has caused an aggravation of pain in the plaintiff's neck, left shoulder and back, but I find also that the underlying degenerative condition at these sites had been previously intermittently symptomatic.

16. 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 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'."

17. In relation to general damages, I assess the plaintiff on the basis of soft tissue injuries to her neck, left shoulder and back, and an aggravation of a previously intermittently symptomatic degenerative condition in her left shoulder and spine. The approach a court must take in assessing damages where an accident aggravates a pre-existing condition has been well settled. The long established principles from Barwick CJ's judgment in Wilson v Piesley (1975) 7 ALR 571 at 574 has recently been restated with clarity by Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266 where His Honour said that :

"if an underlying condition is aggravated in the sense of it being made worse, any incapacity which results is compensable. On the other hand if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity."

18. In relation to her psychiatric complaints, I accept on the evidence that there has been a consequence of the accident, diagnosed by Dr Mickleburgh in his report for the defendant in June 2002 as an adjustment disorder with mixed anxiety and depression, approaching remission. This is consistent with the diagnosis made by Ms Bell, a clinical psychologist, who reported in the plaintiff's case in August 2001, save that she thought that it was at that time of some significance. I note however that Dr Mickleburgh in his report notes that the plaintiff was diagnosed with breast cancer in mid 2001 and underwent successful treatment through surgery and therapy. He makes the observation that this would have exacerbated her anxiety, but has now thankfully resolved. Ms Bell, who reports on a significant state of anxiety and depression in August 2001, makes no reference to this factor, which it seems to me must have been of some real significance to her outlook at the time of the consultation.

19. I accept that the accident did cause a degree of adjustment disorder, but on the evidence I prefer the opinion of the psychiatrist, Dr Mickleburgh, who in the more recent report states that this is now approaching remission. I take this into account in assessing general damages.

20. I award general damages in the sum of $25,000, of which I attribute $20,000 to past loss, generating interest in the sum of $1212 for a total award of $26,212.

21. Out of pocket expenses were claimed in the sum of $9899.07 which I accept and award.

22. Future out-of-pocket expenses were based on the need for significant ongoing treatment, including monthly consultations with a general practitioner. This is quite inconsistent with the prior history, with only one visit to Dr Turtle between September 2001 and June 2002 who she identifies as her treating general practitioner for her motor vehicle accident related complaints. I am satisfied that the plaintiff's accident related soft tissue injuries and aggravation of a previously intermittently symptomatic degenerative condition is approaching the point where the impact of the accident is fading. I therefore allow only a modest amount for future out-of-pocket expenses in the sum of $2000.

23. The plaintiff's claim for economic loss is particularised as a buffer for the inability to complete a CIT course in cake decorating and so the loss of the opportunity to establish a business as a cake decorator. This claim, it seems to me, is at best the loss of a chance. I accept that she did attend a CIT course in cake decorating in 1998 and 1999. I accept that her neck and shoulder pain made it difficult for her to continue with this course, but the evidence as to the course does not establish whether it was in the nature of trade and professional training or of a recreational and hobby nature. It is described as a certificate in cake decoration. The plaintiff acknowledged that she had had no business training, and had ongoing difficulties in English, which had caused her to pull out of an earlier CIT course. I accept that she has made efforts to improve her English, but it is apparent that this is still an issue.

24. I am not satisfied that the cake decorating course was the basis of a business that the plaintiff, but for the accident, would have established. The plaintiff has never worked for wages in Australia. She admitted she had no business training and no business plan. I am not satisfied that she would have commenced a cake decorating business as a commercial operation. Nevertheless, I am satisfied that the accident related disabilities would have had an impact on her underlying economic capacity, and would have precluded her from utilising that capacity, which should sound in some damages. I must also bear in mind, however, that the events of mid 2001 where the plaintiff underwent surgery and therapy for cancer, fortunately with good result, would also have had an impact on her economic capacity during that period. Taking all of the evidence into account and considering her lack of any prior paid employment and the vague nature of her aspiration to sell cakes I award a buffer for past and future economic loss in the sum of $10,000, inclusive of interest.

25. There was a claim for damages pursuant to the principles of Griffiths v Kerkemeyer (1977) 193 CLR 161. Based on extensive domestic assistance. The plaintiff had acknowledged that, with six children living at home, it was hard work coping and she had previously complained of tiredness. I am not satisfied that the claim as particularised is made out. Where the injury complained of is, as here, soft tissue injury and aggravation of previously symptomatic degenerative condition, I accept that there has been a closed period need for some assistance beyond the normal give and take of domestic affairs, but it seems to me that the claim as particularised puts a significant degree of the type of assistance one would expect from a family of six living at home down to the accident. I would award the sum of $5000 in respect of past domestic assistance attributable to this accident inclusive of any interest.

26. This amounts to an award of $53,111.07 which I consider to be appropriate in all of the circumstances of the case and award, with costs.

I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 23 August 2002

Counsel for the Plaintiff: Mr C. McKeown

Solicitor for the Plaintiff: Elrington Boardman Allport

Counsel for the Defendants: Mr S. Pilkinton

Solicitor for the Defendants: Hunt & Hunt

Date of hearing: 8 & 9 July 2002

Date of judgment: 23 August 2002