O'Halloran v Hehir & Australian Capital Territory Government [2003] ACTSC 106 (17 December 2003)

Last Updated: 28 January 2004

SHAUNA THERESE O'HALLORAN v DARYL IAN HEHIR

SHAUNA THERESE O'HALLORAN v AUSTRALIAN CAPITAL TERRITORY GOVERNMENT

[2003] ACTSC 106 (17 December 2003)

DAMAGES - personal injury - assessment - two motor vehicle accidents involving rear end collision - medicare benefits to be ignored in determining sum of damages - otherwise, no issue of principle.

National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569

No. SC 105 of 2001

No. SC 346 of 2002

Judge: Higgins CJ

Supreme Court of the ACT

Date: 17 December 2003

IN THE SUPREME COURT OF THE )

) No. SC 105 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SHAUNA THERESE O'HALLORAN

Plaintiff

AND: DARYL IAN HEHIR

Defendant

No. SC 346 of 2002

BETWEEN: SHAUNA THERESE

O'HALLORAN

Plaintiff

AND: AUSTRALIAN CAPITAL

TERRITORY GOVERNMENT

Defendant

ORDER

Judge: Higgins CJ

Date: 17 December 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $296,238.76.

1. This is an assessment of damages for personal injuries sustained by the plaintiff in two motor vehicle accidents. The first was on 4 June 1999, the second was on 12 April 2001.

2. The plaintiff is a married woman, presently aged 36 years, having been born on 18 September 1967. She has three children, a son aged 16 years and two daughters aged seven and five respectively. She left school in year nine, briefly undertaking a secretarial course and then a hairdressing apprenticeship. Her ambition was to become a nurse, but she did not believe that to be attainable until, in 1991, she obtained her year 12 certificate at Reid TAFE. However, no course was then available so she continued to be employed as a Bar/Shop Manager.

3. It was while she was working as a Bar Manager at the National Sports Centre that she fell pregnant with her first daughter, who was born in July 1996.

4. Before the motor vehicle accident in June 1999 she had experienced trouble with her back. One particular incident occurred in 1989 when, while working at RAAF Fairbairn at the Airmen's Mess, she lifted a case of beer inappropriately. However, this did not result in her requiring treatment and gave her no further trouble. That job ended when the company operating the Mess lost its contract.

5. On 4 June 1999 the vehicle in which she was a passenger was struck from behind. Her husband was driving and her daughters were also passengers. Clearly, that added to the generally traumatic nature of the event.

6. A short time after the accident the plaintiff noticed a headache and neck stiffness. That stiffness and soreness eventually spread to her right shoulder and from her neck down to her shoulder blades, particularly on the right hand side.

7. She consulted Dr Norman Stevenson, her general practitioner, on the following Monday. As she was breast feeding at the time she could not use strong analgesics. She used hotpacks and Panadol or Panadeine. The neck pain, however, got worse, and she received physiotherapy under the supervision of Dr John Corry, an occupational physician and consultant in rehabilitation medicine.

8. It appears that the plaintiff did have some symptoms in her lower back as a result of arthritis for which she was advised to do exercises.

9. She had "niggly" pain in the lower back following the accident, but she took little notice of it as her main complaint was the neck pain. However, it did cause serious symptoms from time to time when it felt as if her hip had "popped out".

10. The physiotherapy did not give relief from the pain but it did strengthen her neck muscles. After she stopped breastfeeding her younger daughter, the plaintiff did take Epilim. However, she did not tolerate anti-inflammatories. She was prescribed Panadeine Forte and Valium.

11. In about September 2000 the plaintiff sought work with the National Nursing Agency despite her ongoing pain in the neck and shoulder. Her back was still "niggly".

12. Dr Corry provided a medical certificate dated 5 September 2000. It was in terms -

This is to certify that Mrs S O'Halloran is fit to work as a nurse assistant with the restriction of maximal lifting of 12 kg. She should use lifting aides as required for any heavier task.

J Corry

13. Unfortunately, the result of this letter was that the Agency did not proceed with the plaintiff's employment. She was advised that, without a certificate stating that there was no limit on her normal lifting ability, she could not be insured and hence the agency could not employ her.

14. By the time of the second accident, on 12 April 2001, these neck and lower back problems had already been getting worse. The back condition was characterised by episodes of pain and stiffness followed by a few months of normality and then a further episode.

15. Again, the second accident was a rear end collision. This time the plaintiff was driving.

16. Immediately following the second accident she felt "a burning sensation" going up her neck and into her head. She attempted physiotherapy but it caused so much pain that she gave up all such treatment. Her recollection was that she had an MRI scan six days after that accident as a result of a further worsening of the back condition.

17. About September 2001 a medical practitioner, apparently engaged for medico-legal purposes by the defendants, suggested operative treatment might assist. However Dr John Fuller, a neurosurgeon to whom the plaintiff was referred by her general practitioner, strongly advised against an operation. It did not proceed.

18. In October 2002 the plaintiff was referred to Dr Edwin Cassar for pain management. She has gained relief from acupuncture, albeit that it is temporary, and it does, she says, keep her condition stable. She is spending about $3,000 per year on pain management.

19. She has been subjected to facet joint and other injections into her neck and lower back from which she has gained only temporary relief, typically lasting around four weeks, preceded by an initial two week period of hightened pain levels.

20. She has continued on drugs, including anti-depressants. She had developed panic attacks. They commenced about 18 months before the hearing on 1 July 2003. I have no doubt they are related to her chronic pain syndrome.

21. Her capacity to perform housework was reduced. She no longer hangs washing out but she can use a washing machine and electric dryer, though her husband folds the washing thereafter. Her 16 year old son has also assisted her, particularly when her daughters were younger. Most vacuuming is done by her son, though she has done some herself, for reason that, as she pointed out, her son tends now to be going out more, particularly at weekends.

22. If she does vacuum, she finds that her symptoms are exacerbated. The same is true if she drives a vehicle though, again, she does sometimes drive. Her disabilities have resulted in some strain upon her relationship with her husband who is a chef.

23. It seems that the major functional disability suffered by the plaintiff is the effect upon her right arm. She is right-handed. She was upset that such activities as mixing food, colouring in for children and using a mouse exacerbated her symptoms to the point of throbbing and aching. Those symptoms subside with rest but that did not mean, the plaintiff said, that she was then pain free.

24. The plaintiff clearly had difficulty in conveying precisely her levels of pain but it seems to me that she, whilst not pain free, is comfortable when she is properly medicated absent elevated levels of activity. If she does not take her medication, or if she engages in more strenuous activity than usual, such as referred to above, she will suffer increased pain levels which will be disabling. However, even so, quick movement of the neck, even absent such activities, may provoke a migraine.

25. The plaintiff was subjected to some criticism for failing to mention her pre-exiting back injury to each of the various medical practitioners she saw after the incidents in question. I do not find that omission surprising. It was 13 years ago and caused no disability. Conversely, she was accused of mentioning "occasional episodes of low back pain", neither severe nor prolonged, which, it was suggested, under stated her currently claimed symptoms.

26. In truth, the plaintiff did have some low back pain in 1998 before the birth of her second daughter. It did not persist. I am satisfied there was only one prior episode of injury, being the lifting incident. I do not believe that the back pain in pregnancy was indicative of any underlying disability.

27. She did, of course, suffer lower back pain for six to eight weeks after the first accident and before the second.

28. There was video film shown to the plaintiff during cross-examination. I have to say that it did not portray any activity inconsistent with the level of disability claimed by the plaintiff when taking her medication and not "overdoing it".

29. The plaintiff's general practitioner, Dr Stevenson, had been informed of the "old injury" relevant to her complaint of back pain on 4 February 1998. That was treated with Panadol. There was then no complaint of back pain until after the 1999 motor vehicle accident. It is clear that Dr Stevenson considered the worsening back pain complained of after that accident to have been an aggravation of a pre-existing condition, and that such aggravation was caused by the motor vehicle accident(s). Indeed, as I understood it, the centrepiece of the submissions of Ms Fitzsimons for the defendants' was that the accidents should be so viewed, particularly so far as the lower back complaint is concerned, as an exacerbation of a pre-existing condition likely to be troublesome in due course in any event, and largely controllable by medication.

30. Defendants' counsel also urged consideration of the uncertainty of the plaintiff's employment prospects even absent the accidents sued upon. In any event, it was submitted, the plaintiff's residual work capacity was considerable. She was limited only by the need to avoid more than light lifting and such activity as repetitive bending and stooping. There was also some prospect that pain management treatment would further ameliorate the plaintiff's plight.

31. However, on any view of it, the plaintiff will need retraining as well as continuing pain management therapy.

32. The medical evidence relied on by the plaintiff revealed that following the accident of 4 June 1999 the plaintiff suffered a whiplash type injury. The symptoms of pain, stiffness, burning sensation and paresthesia troubled her sufficiently for Dr Stevenson, on 3 August 1999, to refer her to Dr John Corry for treatment. By January 25, 2000 there was lower back pain. There was evidence of an "old injury" but Dr Stevenson attributed the tenderness in the sacro-iliac joints to "soft tissue trauma".

33. Soreness in the neck and back continued up to 12 April 2001, the date of the second accident. The pain seems to have improved up to that time, as would be expected. Despite the minor nature of the impact there was, Dr Stevenson reported, "an instant increase in pain". This required an increase in medication which unfortunately increased the plaintiff's depression.

34. In September 2001, the plaintiff told Dr Stevenson that she had seen Dr Corry. That did not seem to resolve her pain so he referred her to Dr Fuller. The symptoms continued during 2001. Dr Stevenson's notes and evidence continued to illustrate a picture of significant pain continuing up to the date of hearing.

35. Dr Fuller reviewed the plaintiff on 12 December 2001. He noted "a probable bilateral L5 pars defect with associated grade 1 spondylolisthesis at L5-S1 level. The L4-5 level was also degenerate with a central disc bulge". He recommended continuing conservative measures.

36. Dr John Corry reported on 9 August 1999, that there had been improvement overall in the plaintiff's neck condition, though he noted that there was exacerbation associated with activities such as the "mixing of food, with colouring in when playing with her children, or using a mouse pointer device".

37. Whilst Dr Corry reported "otherwise she is pain free", I do not consider that this statement should be taken literally. I take it to mean that pain levels in the neck subside to "niggling" levels. Dr Corry did allow the possibility of joint damage. It was considered necessary by Dr Corry for the plaintiff to continue a therapeutic exercise program.

38. The plaintiff was reviewed by Dr Robert J Scott, an occupational physician, on 17 May 2002. He confirmed that the plaintiff's perception of Dr Corry's treatment had been less optimistic than Dr Corry had perceived it.

39. The disability then suffered by the plaintiff was described by Dr Scott as comprising fairly constant neck pain as well as low back pain affecting the right leg down to her knee. He felt that, after three years, a chronic pain syndrome had developed.

40. Dr Owen White, a neurologist, also reviewed the plaintiff on 3 April 2003. He referred to "occasional episodes of low back pain" prior to the first accident being reported by the plaintiff. However, I believe, as the plaintiff says, this referred to the occasional back pain during pregnancy. Dr White noted that no treatment had been required for this condition before the first accident.

41. Dr White noted that the cervical region had continued to cause pain and partial disablement for domestic work. The plaintiff could undertake only light domestic duties. Dr White concluded -

At this stage her pain has been present for some four years and is unlikely to improve dramatically in the future. It will prevent her from undertaking a full range of activities, as outlined above, and she will continue to require assistance with performance of the normal domestic duties. Equally, in future, it will prevent her from returning to any work which would have a significant physical component.

42. He saw that situation as likely to continue with "little change in the future at best".

43. That assessment seems a fair one to me. On 7 May 2003, Dr White confirmed that ongoing medication was likely to be required.

44. The fact that the plaintiff was referred to Dr Edwin Cassar's pain management clinic as late as 24 October 2002, in itself, confirms to me that the plaintiff had continued to suffer significant pain.

45. As at 12 June 2003, Dr Cassar was able to report that he had achieved a better pain management plan. On examination, Dr Cassar reported -

It was evident that despite the extensive therapy given by Rehabilitation Specialist Dr John Corey (sic) in the years 1999 and 2000 that your client had not been able to achieve and hold adequate strength in core musculature subsequent to rear end deceleration motor injuries in 1999 and resulting in development of mechanical back disorder and poor muscle endurance as a consequence. The latter were in my opinion additional injuries to those described in your client's cervical spine and right shoulder girdle and arm.

46. His conclusion, as at 12 June 2003, was -

At most recent examination June 3 2003 I found no localised cervical spine irritability but only tense musculature base of neck and lower back with return of right hand strength and negative neurological abnormalities. Your client is now in stable state but with permanent established pain condition necessitating low grade narcotic therapy doses of which have not gone out of control but are likely to and my expectation is that a stronger analgesic Physeptone will be necessary on a long term basis 10 mg once or twice daily, costing an average of $50 month when additional Endep therapy is included. In addition she will require at least three courses of acupuncture per year, six to eight weeks at a time with intervals of up to two months in between when only home based exercise and medication will still be necessary. Your client is now capable of driving reasonable distances and of undertaking her home duties even though these need to be spaced. She is not fit to undertake full time employment but is capable of working in a part time capacity up to twenty hours per week but not in bar tender work but rather suited to an occupation allowing a combination of sitting, standing and moving about work place, limited to no more than six kilogram lifts and not suited to prolonged sitting at a desk either. It is not expected that your client will ever require any other form of treatment and certainly will never require any spinal surgery or spinal orthotic aids.

In summary it is my view that consequential to deceleration spinal injuries by rear end impact of June 1999 your client suffered cervical spine C3/4 and C6/7 facet joint injuries accompanying muscle tear and myofascitis with establishment of neck muscle weakness and a tendency to spasm