Zapantis v Gregory [2002] ACTSC 84 (30 August 2002)

Last Updated: 5 September 2002

SHARON ZAPANTIS v WALTER JAMES GREGORY [2002] ACTSC 84 (30 August 2002)

CATCHWORDS

PERSONAL INJURY - Motor Vehicle Accident - Assessment of Damages - No issue of principle

Evidence Act 1995 (Cth) s 67

Griffiths v Kerkemeyer (1977) 193 CLR 161

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

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

Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563

No. SC 952 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 30 August 2002

IN THE SUPREME COURT OF THE )

) No. SC 952 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SHARON ZAPANTIS

Plaintiff

AND: WALTER JAMES GREGORY

Defendant

ORDER

Coram: Master T. Connolly

Date: 30 August 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $229,095.19

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 2 December 1998 on Drakeford Drive, Kambah, in the Australian Capital Territory. The plaintiff was a front seat passenger in a motor vehicle being driven by her husband which was struck from behind by another vehicle which had itself been hit by the defendant's vehicle. The plaintiff had picked her husband up from work, and their three young children were in the back of the car. The plaintiff's evidence is that her husband pulled up behind a vehicle in front at traffic lights, and then became aware of an impending collision, saying "please don't hit me". She turned around to see that her children were safe, and was bending her head around at the point of the impact. She was forced forwards and back in the familiar whiplash type activity.

 

2. Liability was admitted, and the matter proceeded on the basis of an assessment of damages only.

 

3. The plaintiff was born in 1969 and completed her high school studies to the end of year 12 in Sydney. She enrolled in a science degree at the University of Technology in Sydney in 1987, where she met and became engaged to her husband. She says that she found that she did not enjoy study, and she left university and took up clerical employment in the middle of her first year. In 1998 she moved with her then fiancé to Brisbane, where she found clerical employment. In November 1989 she commenced a general nursing course at the Royal Brisbane Hospital School of Nursing, which she completed in 1993, achieving registration as a general nurse. She married in 1991.

 

4. Mrs Zapantis says that she enjoyed the profession of nursing. She worked as a casual nurse and as a psychiatric nurse until she left work in May 1994 before the birth of her first child in August 1994. She took up casual nursing again in October 1994. Mrs Zapantis and her husband gave evidence that they were able to arrange their lives so that she could undertake nursing work when he was at home to care for their son. The taxation records tendered in this case show that her earnings dropped from around $25,000 in the year ending 30 June 1994 to around $10,000 in the year ending 30 June 1995.

 

5. She has had some history of back injury and minor workers compensation matters. These have been fully disclosed.

 

6. She continued to work part time up until shortly before the birth of her second child in April 1996, but again she and her husband were able to arrange their lives so that she could work part time while he was home from work, and her earnings for the year ending 30 June 1996 were in the order of $14,000. In late 1996 the plaintiff moved to Canberra, where her husband had obtained a more senior position as a scientist with the Commonwealth Government in the Department of the Environment. She obtained registration as a general nurse in the ACT, but the combination of the birth of her second child and the move to Canberra meant that she did not undertake much work in the financial year ending 30 June 1997, having a taxable income of only some $400.

 

7. She recommenced casual employment with ACT Community Care looking after a terminally ill child in August 1997. Her third child was born in June 1998, and she had earnings in the order of $5000 for the year ending 30 June 1998.

 

8. At the time of the accident in December 1998 the plaintiff had not yet returned to work, being occupied looking after her children then aged 4, 2 and six months, but she says that it was her intention to resume work, particularly as they began schooling. She says that at the time of the accident she was most concerned about her children, and was aware of some arm pain. She declined the offer of assistance from ambulance officers present at the scene, but she noticed as she went home that she started to get neck pain. She attended at her local general practitioners office that evening. A diagnosis of whiplash soft tissue injury was made, and she was prescribed analgesia and heat packs.

 

9. She continued to complain of neck pain, more over the right side, and headaches. Her general practitioner put her on anti-inflammatories, but there was no relief. She and her husband moved house in the early part of 1999, and she continued to experience neck pain. Dr Tyler in her report of February 1999 said that the plaintiff

"has soft tissue injuries to her trapezii and other neck muscles resulting from the car accident. This has been slow to respond to conservative treatment due to moving house and having to nurse her infant."

 

10. She was examined by Dr Griffith for a medico legal assessment on 9 December 1998. This was one week after the accident, at a time where the general practitioner diagnosis was of soft tissue injury only. There was some criticism of the plaintiff by the defendant for this early involvement by solicitors, but the plaintiff said, quite reasonably, that she consulted a solicitor early on in order to protect her interests, and then followed advice.

11. In this, it seems to me, she is doing only what the public are lawfully advised to do following trauma, and that is to consult a solicitor and follow advice. I note that the initial report from Dr Griffith expressed the view that the plaintiff had sustained soft tissue injuries that were subsiding, and said

"prognosis of injury of this nature is for gradual improvement and ultimately full resolution."

He took a history that she had been planning to return to nursing work in mid 1999 when her baby would be a year old, and said

"I believe there is a good chance that she would be fit to undertake nursing duties."

 

12. She continued to experience significant symptoms of neck pain, despite some relief from acupuncture. Dr McGrath, an occupational physician, reported to her general practitioner in April 1999 following her report of improvement by acupuncture that

"the most probable diagnosis in an injury to the C 4/5 apophyseal joint on the right based upon her pain pattern. Overall her level of disability is not high and we could expect further gains over the year or so through natural history."

She continued to experience pain, and Dr McGrath ordered an x ray of the spine, which was clear. In a report of June 1999 he states that he had discussed with the plaintiff the option of radio frequency denervation as a treatment methodology. He referred her to Dr Speldewinde with a view to undertaking facet joint block injections in order to diagnose any involvement of the joint tissue.

 

13. A report from Dr McGrath to her general practitioner of 29 June 1999 states

"She saw Dr Speldewinde for the joint blocks. He feels that he cannot obtain NRMA support for this diagnostic investigation and Sharon was somewhat put off by the probable cost. She will not proceed".

He expressed the view that she should continue with analgesia and exercise, and that there was still a good probability of natural healing.

 

14. The plaintiff had made some attempts to return to work, but experienced ongoing neck pain. An MRI of the cervical spine in July 1999 was clear. She was displaying indications of depression, and her general practitioner had put her on anti-depressant. She was referred by Dr McGrath to Mr Sutton, clinical psychologist, who recommended pain management treatment.

 

15. In September 1999 the plaintiff's husband was temporarily transferred to Darwin to a more senior position with the Office of the Supervising Scientist, responsible for environmental management issues associated with the uranium mining industry, and the family moved to Darwin. This was originally to be short term, but he has since been substantively promoted to the senior position, and they have made their home in Darwin. Her medical care has thus moved to Northern Territory practitioners.

 

16. There is a report from the Parap Village Medical Centre of February 2000 indicating that she attended on three occasions where analgesia and anti-depressants were continued, and a reference to a psychologist for pain management was arranged. Dr Howe said that she continued to complain of severe neck pain.

 

17. She sought to return to work as a nurse on a part time basis in Darwin. Given her neck condition, she sought and obtained a medical clearance from Dr Eaton, an occupational physician who in March 2000 said that he felt that her condition had

"improved sufficiently for her to return to work in her profession as a registered nurse",

but said that she should avoid heavy lifting or excessive strain on her neck and back. I do not see this as an indication that her condition had fully resolved, but rather that she was seeking to attempt to return to work, to her credit.

 

18. She continued to experience severe neck pain through 2000. She discussed with her general practitioner the option of breast reduction surgery in order to reduce symptoms of neck pain, and Dr Howe referred her in October 1999 to Dr Moore, an Adelaide surgeon who visits Darwin. There is a report from Dr Moore of 14 November 2000 which states :

"Following consultation with Mrs Zapantis in Darwin it was agreed that she proceed to reduction mammaplasty. This is on the basis that she has a degree of breast hypertrophy which may well be contributing to or exacerbating back and neck complaints. I will unfortunately not be operating in Darwin until March 2001 and hence it is I believe reasonable to proceed to surgery earlier and this being the case that this surgery be undertaken in Adelaide."

 

19. She had this operation performed by Dr Moore in Adelaide on 8 December 2000. At the same time he also performed an abdominoplasty.

 

20. In relation to these procedures, Dr Eaton in a report of August 2001 said

"Mrs Zapantis had a breast reduction operation in an effort to reduce the strain on her neck and shoulders from the weight of excessive breast tissue. It is accepted that neck and shoulder pain can be aggravated by very large breasts. It was entirely reasonable for this surgery to be carried out to help lessen Mrs Zapantis' ongoing neck pain and discomfort. The abdominoplasty was not carried out for the same purpose of attempting to reduce neck symptoms."

 

21. Although the plaintiff feels that there has been some benefit from the breast reduction in relation to her back and neck strain, she has experienced some skin difficulties and infections at the site of the procedure, particularly in periods of high humidity.

 

22. It seems to me on the medical evidence that the breast reduction procedure was a reasonable response to the ongoing neck pain, and so should be recoverable under the test of Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573. While her general practitioner has said that the abdominoplasty was also for beneficial weight reduction reasons, there is no support for this from the surgeon, and the specialist occupational physician, Dr Eaton, has expressly disavowed a link. It seems to me that this is not attributable to the accident.

 

23. The plaintiff continued to experience neck pain, and was on a waiting list for the Pain Clinic at Darwin Hospital. She became aware of the work being done at the Newcastle Pain Management Centre, and after discussion with her general practitioner was referred to them in March 2001.

 

24. She attended the Newcastle Pain Management Centre at the Royal Newcastle Hospital in May 2001, and came under the care of Dr Wade King. He says in his report of 17 May 2001 that he made a working diagnosis of chronic cervical spinal pain of uncertain origin, possibly stemming from impairment of the C2-3 and C6-7 zygapophysial joints. He undertook a nerve block investigation at C6-7, which he said seemed positive.

 

25. This case was conducted by Senior Counsel, and extensive medical evidence was before me, rather more than would normally be expected. However, it is apparent from the defendant's medicine that a comprehensive challenge to the methodology of the Newcastle Pain Management Centre was a strong possibility in this case. This court is of course very familiar with the situation of a plaintiff who complains of ongoing symptoms of pain in the face of radiology which shows no objective damage to the spine or discs. This is the classic soft tissue injury. Research and clinical tests undertaken by a group at Newcastle over recent years has suggested that in some cases, the source of the pain is the nerve in the zygapophysial joint as a consequence to an injury to the surface of the joint which is not observable on present radiology technology. This may be determined by a series of double blind injections of an anaesthetic to the joint, where the patient and clinician are unsure as to whether the anaesthetic is of short or long duration. If the patient's record of relief from pain and then onset of pain matches the anaesthetic, the test is regarded as positive, and it is then possible to use radio frequency via a needle to desensitise the nerve, which can result in significant pain relief. The nerve will regenerate over time, and at present the relief may be expected to last for about a year.

 

26. Dr Wade King performed a further joint block injection at C6/7 in August 2001, and reported that the result was also positive,

"the index pain being abolished for a period consistent with the duration of action of the local anaesthetic agent used in the test."

He made a diagnosis of C6/7 zygapophysial joint impairment, and said that he was also investigating C2/3, as her pattern of symptoms was suggestive of involvement at this level.

 

27. Further tests performed by Dr Wade King in September 2001 confirmed involvement of the right C2/3 joint. A radiofrequency neurotomy was performed at C2/3 at Royal Newcastle Hospital on 28 February 2002. She said that this treatment was successful in obviating symptoms. She was due to have a similar treatment at C6/7 immediately after this hearing.

 

28. Dr Wade King was called to give evidence of this technique. He was an impressive witness. He agreed that most so called soft tissue injuries- he said about 75% -would resolve with the passage of time, but a significant proportion did not, because they involved actual damage to the cervical joints which, while not observable on x-ray, CT or MRI scan, are observable if the joint is examined. He referred to studies that had involved extensive post mortem examinations of patients who had complained of cervical pain with no radiological signs, where there were frank indentations found in the facets, or faces of the cervical joints caused by the violent collision of the two joint surfaces induced by the mechanism of whiplash type trauma.

 

29. Dr Wade King had with him a laptop computer, and said that this contained a presentation that illustrated these concepts. It was not possible, however, to provide a copy of this by way of a disc into evidence, and Ms Fitzsimons, quite properly, objected to a presentation that could not be recorded being given by the doctor. As an alternative, Dr Wade King himself made a sketch explaining the process, which was admitted into evidence. He described the way in which the cartilage lining each facet of the joint can be fractured by way of these indentations, and said that these would not heal.

 

30. Dr Wade Kings' methodology was not substantially challenged in cross-examination. He said that recent research indicated a success rate of 86% for treatment at C 2/3, and he said that the treatment of Mrs Zapantis at C2/3 in February had been successful in that her headaches had gone. He said that he hoped the same result would be achieved in the C6/7 treatment that would be performed after this hearing, and that the neck and upper back pain would be resolved. He said

"if the treatment is totally successful and all pain remits, which is the majority of cases but not all, they can then return to previous activities."

He said that he was "very hopeful" that the plaintiff would fall into the successful category of patients.

  

31. The treatment being provided by Dr Wade King is supported by Dr Griffiths and Dr Eaton, as well as by her Darwin general practitioner.

 

32. The defendant's principal expert witness was Dr Peter Stevenson, a consultant physician. He noted in his report that

"the reporting of chronic neck pain after rear end motor vehicle accidents, in the absence of objectively discernible injury, is a highly problematic condition. We in Australia live in a high whiplash society. The chronic pain reporting after such incidents is common in Australia, America and certain countries of Western Europe, but chronic pain reporting does not seem to exist in other countries studied, notably in eastern Europe, Germany, Greece and south east Asia following identical motor vehicle trauma, whereas the spectrum of severe orthopaedic and neurological trauma is identical......there is good evidence that the reporting of chronic neck pain after neck strains is predominantly determined by psycho cultural factors and somatisation and adoption of the sick role."

 

33. Despite this, Dr Stevenson continued

"However in addition, there is a small body of work which is scientifically solid, though at this stage not replicated elsewhere, from the University of Newcastle, which indicates that a certain subgroup of such patients, the size of which is currently in dispute, may have ongoing sources of chronic pain from cervical zygapophyseal (facet joints). This stems from work which is placebo controlled and scientifically reputable. It has been performed by Professor Bogduk of Newcastle University, Professor Barnesly at Concord Hospital in Sydney, and by others associated with that group. There is now a standard protocol approved by the International Spine Scientific Injection Society......Overall therefore, this is a scientific ally reputable technique, especially in pain management medicine. I would certainly see patients who appear to have been helped very substantially by this form of treatment and refer patients for this form of treatment."

 

34. Dr Stevensons's diagnosis for the plaintiff was that

"There appears to be prima facie evidence that this lady may have a local cervical source at C6/7. This may well be substantially improvable with radio frequency denervation."

 

35. At the end of the day it seems to me that Dr Stevenson and Dr Wade King are in substantial agreement that the plaintiff does have a verifiable facet joint condition at C6/7 and C2/3, attributable to the accident and amenable to treatment.

 

36. The defendant also sought to tender a report from Dr Burvill, a psychiatrist, who examined the plaintiff for the purposes of a medico legal report. The plaintiff wanted to cross-examine Dr Burvill, but the defendant was not able to call him. This matter had been set down for hearing in 2001, and on that occasion, I was told, Dr Burvill had been available. I was told that he has subsequently retired from active practice, and had moved to Adelaide. Evidence was given by the defendant's solicitor that there had been confusion about arrangements for Dr Burvill's attendance, and that it was only in recent days that efforts were made to contact him. The telephone number in Adelaide was reported as being no longer in service. No other explanation was forthcoming.

 

37. I ruled that, in these circumstances, I was not satisfied that the report should be admitted. The provisions in the Evidence Act s67 for notice to be given to a party where a witness is unavailable had clearly not been complied with. Nor was I satisfied that the witness was "unavailable". An administrative breakdown in a solicitors office should not, it seems to me, allow that party the considerable forensic advantage of getting in to evidence an expert report while denying the other party the opportunity to cross-examine the author of the report.

 

38. I am satisfied that in this accident the plaintiff did sustain a whiplash type injury which has caused facet joint injuries at C2/3 and C 6/7. I am satisfied that the C2/3 injury has responded well to treatment by way of radio frequency denervation. Unfortunately at the date of hearing the same procedure had not yet been performed at C 6/7, but on Dr Wade King's evidence this will likely be successful.

 

39. I am satisfied that until these treatments the plaintiff has experienced quite severe pain. I accept her as being generally frank in her evidence. There was video material shown of her attending school to pick up her children and shopping, and she was not in any obviously disabled state. I am also satisfied that there has been a degree of depression associated with this condition. It seems fair to make the observation that this is understandable in that the plaintiff has been experiencing ongoing pain, but the best medical advice, up until the successful diagnosis by Dr Wade King, accepted by Dr Stevenson, has been that she had sustained soft tissue injuries, which she has been told will resolve in time, but which have not resolved with the passage of time. I note that Dr Stevenson in his report says that

"there does exists evidence reported from the Newcastle Spinal Unit that patients who are treated successfully with radio frequency denervation, according to their paradigm, will lose there depression. That is to say, the depression gets better when the pain source is relieved."

 

40. 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'."

41. In this case, I assess the plaintiff on the basis of the medical evidence which shows that she has had ongoing cervical pain which has been quite severe, which for some considerable period has defied a clear diagnosis. I accept the evidence of Dr Wade King that the source of the pain is a facet joint injury identified at C2/3 and C 6/7. I can make the clear finding that the C 2/3 injury has responded well to treatment. The treatment had not yet taken place at C5/6, but on all of the evidence I am satisfied that it will also respond, applying the approach outlined by the High Court in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642 per Dean, Gaudron and McHugh JJ.

 

42. I accept that she has also experienced depression associated both with the ongoing pain and the inability of medical practitioners to provide a form of treatment or diagnosis, and that she acted reasonably in undertaking a breast reduction procedure in order to reduce neck strain and so alleviate symptoms that were, at that stage, yet to be definitively diagnosed. I am not satisfied that the abdominoplasty was associated with the neck injury.

 

43. The radio frequency treatment is not permanent. Dr Wade King in his report of August 2001 said

"On the balance of probabilities, Mrs Zapantis is likely to require treatment by percutaneous radiofrequency neurotomy of each joint involved at approximately annual intervals for the rest of her life."

 

44. In cross-examination it was put to him that there was no way of telling how long the treatments would last and he replied:

"The average is about a year, that's based on our statistics over the last- it must be seven or eight years now of experience. The average is about a year. The very best still going is something light three years. That's at one end of the statistical spectrum. And we have other patients who get six months or nine months of relief and then come back to us."

 

45. I am satisfied that the treatment methodology is valid, but it is still in its emerging stages. Dr King acknowledged that there was only some seven or eight years of experience. He explained that the treatment deliberately did not destroy the nerve (which would create other complications) because

"We're deliberately allowing the nerve to regenerate in the hope that in the future there'll be a better treatment."

 

46. I am satisfied that this emerging methodology is appropriate for the plaintiff's condition, but I am not satisfied on the present state of the medical knowledge as disclosed in the evidence before me, that it can be said that the treatment is capable of being repeated indefinitely on an annual basis. The technology has only been in use for some seven or eight years. Dr King said that they deliberately do not destroy the nerve in the hope of further developments which may provide for a permanent cure for the pain generated by a facet joint injury. As the treatment has been in use for under a decade, I do not feel that I can say that it is more likely than not that this plaintiff, or indeed any patient, will undertake annual treatments for the balance of her life.

 

47. In relation to general damages, I award the sum of $65,000 taking into account the ongoing neck pain caused by the damage to her facet joints, the treatment that she has undertaken to date, including the breast reduction process, and the need for ongoing treatment. I allocate $40,000 of this to the past, generating interest of $3,000 for a total award of $68,000.

 

48. The plaintiff has made a claim for economic loss for both the past and the future, based on an ongoing inability to work at all, and particularised as a loss of $550 per week, being based on nursing earnings, from March 1999, which is when she says that she would have returned to work. I am satisfied that the heavier aspects of nursing would be beyond the plaintiff's present capacities, but I am not satisfied, on all of the evidence, that the plaintiff's ongoing neck pain is such as to render her incapable of working. There was video film shown in this case of the plaintiff undertaking quite normal, though not strenuous activities of shopping and picking up her children from school, including lifting her children. While these are not of great significance, they do present a different image from the picture that was being painted at times during her evidence of chronic disability and pain and a need to regularly lie down.

 

49. Dr Griffith, who reported for the plaintiff in August 2001, said that

"She would be able to work in a supervisory capacity, but would not be suitable for activities that require lifting and manhandling of patients. Unfitness for work is mandated solely on her perception of pain and ability to cope with it."

 

50. It seems to me that while her ongoing unsuitability for heavy nursing duties is established, the medical evidence in the plaintiff's case does not go so far as to say that she is unable to work at all. Mr Sutton in his psychological report of August 1999 accepted an inability to work as a nurse, and recommended training for alternative employment. He made the observation

"Obviously she is currently preoccupied with dealing with her young children, nevertheless the future work capacity should be thought about."

 

51. I make the observation that this comment seems to fit with the evidence of Mr Zapantis who said that the move to Darwin in September 1999 was intended to be temporary, and that at that time their third child was still breast feeding, and that he would have expected the plaintiff to resume work when things were stable. I accept that from the time the family settled in Darwin in early 2000, the plaintiff would, but for the accident, have resumed employment. I am satisfied that she has a residual capacity for other employment, on the basis of all of the medical evidence before me. I make an award for past economic loss in the sum of $30,000, inclusive of interest.

 

52. The plaintiff's claim for future economic loss is based on a continuing inability to work as a nurse involving heavy labour, but acknowledges that she will be able to return to other employment, and seeks a buffer in the order of $150,000. The prognosis from Drs King and Stevenson in relation to the substantive sources of her pain are positive, and I accept that her depression has been related to the pain so that, with a positive response to the pain treatment, her depression should also resolve. It seems to me that on this basis the buffer claimed is excessive. I acknowledge, however, that it will take some time for the plaintiff to resume employment to a full time level, and to undertake some additional training. She said in her evidence that she would like to retrain in the area of social work so that she could continue to work in the health care sector. The plaintiff impressed me as an obviously capable and intelligent woman, and it seems to me that she is most likely to succeed in this field, where her previous nursing experience would be an obvious asset. I award the sum of $50,000 by way of future economic loss.

 

53. There was a claim for damages pursuant to the principle in Griffiths v Kerkemeyer (1977) 193 CLR 161. While some of the evidence lead in support of this claim seems to me to relate more to a normal give and take of domestic functions, I am satisfied that there was a significant need for assistance in the early period following the accident, and that there have been further periods particularly around the period of the breast reduction operation, and when the plaintiff's husband is required to travel and the burden of home care falls solely on the plaintiff. The claim is particularised with some care, and it seems to me it is within the appropriate range. I award the sum of $5000, inclusive of interest under this head.

 

54. The future claim is premised on a need for ongoing home care at two hours per week. This range, it seems to me, falls within the normal give and take of domestic affairs, and would itself not justify an award. I am satisfied, however, that there will be a need for assistance for some years at least as the plaintiff undergoes further procedures for nerve denervation, and I would accordingly award the further sum of $5000 as a discretionary buffer for future care.

 

55. Out of pocket expenses to date are claimed in the sum of $26,295.19. This includes the costs of the abdominal cosmetic surgery that I have found not to be accident related. I have examined the invoices tendered in support of the claim, and it is not immediately apparent what the precise cost of this procedure was. The bill claimed from Dr Moore, the surgeon, is in the sum of $3316.50 in the schedule of medical expenses, but the invoice dated 12 December shows a lesser sum, of which $981.70 is due to the abdominoplasty. Accepting that the balance is due to the consultations prior to surgery, which would relate to both procedures, I will reduce this sum by $1200 to take into account the costs of the non relevant procedure, amounting to a component for past medical expenses of $25,095.19.

 

56. There is also an issue of travel expenses in relation to the out of pocket medical costs. I am satisfied that the plaintiff has had to undertake travel to Adelaide for the breast procedure, and to Newcastle for the radio frequency treatment and consultations. A schedule provided by the plaintiff's solicitors after the hearing includes travel costs of $12,259. At the trial travel costs of $9770 were claimed, and receipts were tendered. Of these, however, some related to travel by persons other than Mrs Zapantis. There include travel by her husband and children, and travel by parents. While I accept that there was a Griffiths v Kerkemeyer component for some assistance during periods when her husband was travelling, this does not, it seems to me, translate into the insurer paying for airline tickets for grandparents visiting their grandchildren in Darwin. The principle behind the doctrine is for gratuitous care to be compensated as if it were commercially obtained, and it could not be claimed that commercial childcare in Darwin would involve flying the carers from Sydney. There is also a bill marked for expenses to testify in court, which is not recoverable in this way, and there are petrol bills from Batemans Bay, which seem to bear no relation to the case. Doing the best I can I award an additional $6000 in respect of the plaintiff's necessary travel costs. There is also a bill for childcare in Darwin for the plaintiff's children in the sum of $480, and I do not see how this is related to the case, beyond reflecting the matters taken into account in my award of Griffiths v Kerkemeyer damages.

 

57. I award the sum of $31,095.19 in respect of past out of pocket expenses.

 

58. Future out-of-pocket expenses are claimed on the basis of the need for ongoing treatment at Newcastle for 50 years. A significant component of this is for the air travel from Darwin. I note that the evidence is that the plaintiff and her husband have no family in Darwin, and moved there solely for his job. They have moved from Sydney to Brisbane to Canberra to Darwin in the past. It is highly likely that they will move again depending on career prospects. Moreover, the treatment now available only at Newcastle will either prove to be of no long term benefit, or, on Dr Kings view, which I have accepted will become more broadly accepted in the medical and scientific community, in which case it will become more widely available. This is the inevitable pattern of medical advances. It seems to me that the component claimed for ongoing air travel from Darwin to Newcastle is quite unrealistic.

 

59. I am also not satisfied that the present form of treatment will continue for 50 years. As discussed above in these reasons, the evidence is that this is an emerging treatment which has confirmed, on Dr King's view, that damage to the facet joint can be a consequence of whiplash type injury and produces pain for an organic reason, which may be blocked. The blockage is at present done by radio treatment, and is deliberately not permanent, as the technology is emerging. Again, it seems to me that the treatment will either be disproved, or on Dr King's evidence, better and more permanent treatments will evolve. It would on my view be quite unrealistic to base an award on 50 years of present treatment costs

 

60. That said, I am satisfied that the plaintiff will benefit from some years of ongoing treatment from the Newcastle Pain Management Unit or a like unit, and for some years this will also involve a component of travel expenses. Taking all of the evidence into account, I make an award of $40,000 for ongoing medical expenses. This is considerably above the normal range of award for neck injury, but is, it seems to me, justified on the basis of the medical evidence in this case.

 

61. This amounts to a total award of $229,095.19 which I consider to be appropriate in all the circumstances and award, with costs. Due to the nature of the medical issues in this case. I certify that it was an appropriate case for senior counsel.

I certify that the preceding sixty one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 30 August 2002

Counsel for the Plaintiff: Mr G. A. Flick SC with Mr T Thawley

Solicitor for the Plaintiff: Maliganis Edwards Johnson

Counsel for the Defendant: Ms D Fitsimons

Solicitor for the Defendant: Phillips Fox

Date of hearing: 1 & 2 July 2002

Date of judgment: 30 August 2002