Hall v Cramer [2003] ACTSC 112 (19 December 2003)

Last Updated: 28 January 2004

GLENDA MARGARET HALL v YVONNE CRAMER

[2003] ACTSC 112 (19 December 2003)

DAMAGES - personal injury - assessment - motor vehicle accident involving rear end collision - whether redundancy payment taken into account in reducing damages payable for loss of earning capacity - relevance of fact that payment made due to plaintiff's voluntary decision to take early retirement.

Smoker v London Fire & Civil Defence Authority; Wood v British Coal Corporation [1991] 2 AC 502

Parry v Cleaver [1969] UKHL 2; [1970] AC 1

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

Graham v Baker [1961] HCA 48; (1961) 106 CLR 340

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Colledge v Bass Mitchells & Butlers Ltd [1988] 1 All ER 536

Wilson v National Coal Board (1981) SLT 67

Black v Brimbank City Council (1998) 152 ALR 491

Clay v Freda (1988) 144 LSJS 274

Crowden v Pickards Mather & Co International t/a Savage River Mines (Unreported, TASSC; B32/1996; 4 July 1996).

Wall & Lambe v Wall [1998] SASC 7017 (23 December 1998)

No SC 430 of 2002

Judge: Higgins CJ

Supreme Court of the ACT

Date: 19 December 2003

IN THE SUPREME COURT OF THE )

) No SC 430 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GLENDA MARGARET HALL

Plaintiff

AND: YVONNE CRAMER

Defendant

ORDER

Judge: Higgins CJ

Date: 19 December 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $158,561.55.

1. This is a claim for damages for personal injury arising out of a motor vehicle accident which occurred on 20 July 1996. The defendant was the driver of a motor vehicle which collided with the rear of a motor vehicle of which the plaintiff was the driver, whilst the plaintiff's vehicle was stationary at the intersection of the Tuggeranong Parkway ramp and Hindmarsh Drive in the Australian Capital Territory.

2. The defendant concedes negligence. The only issue is the assessment of damages.

3. The plaintiff, who had previous spinal problems, was shaken up by the impact of the defendant's vehicle. She was minding her daughter's dog. It escaped, was run over by traffic and died. This added to the plaintiff's emotional distress.

4. The ambulance arrived shortly after the impact. By this time the plaintiff was feeling pain in her neck and shoulder. That pain was, generally speaking, felt down the left arm, following the pattern of the seat belt impact. She went home after treatment at the scene.

5. By the next Wednesday both arms were experiencing pain.

6. Despite feeling miserable, the plaintiff went to work on the Monday. By Wednesday afternoon the pain was so bad that she consulted her general practitioner, Dr G D  Kelly.

7. He put her off work for a month, after which there was a graduated return to work.

8. She was also under the care of physiotherapist Andrew Young and Dr Bryan Ashman.

9. On 19 August 1996 the plaintiff returned to work on a graduated basis, resuming full time work from 21 October 1996.

10. Physically, the plaintiff continued to experience pain, particularly whilst sitting, in the neck and lumbar spine.

11. Although there had been prior spinal problems dating from 1977, the plaintiff stated that she was "fine as from 1981, though there was persistent low level back pain".

12. Before the accident, the plaintiff also suffered from stress problems but, felt that despite this, she was coping well by the time of the accident.

13. However, following her return to work, after resuming full-time duties, the plaintiff found it more and more difficult to cope.

14. She had intended to continue working until age 60 (24 November 2002), but instead opted for early retirement at age 54 years 7 months (1 July 1997). She attributes this to the continuing effect of her symptoms following the accident.

15. Treatment continued after the plaintiff's retirement. She had one operation on 28 October 1989 and another in October 1999. She also had injections, but none of these procedures alleviated her pain. The condition of her lumbar spine, in particular, continues to deteriorate.

16. However, the neck, she feels, is now stable, although she has an exercise program to maintain and must be careful to avoid sudden head and neck movements.

17. She is allergic to analgesics but tolerates paracetamol for pain relief.

18. The plaintiff, perhaps unsurprisingly, also suffers depression. She can no longer play lawn bowls or golf. Her left leg is unreliable due to pain.

19. She suffers disturbed sleep due to pain in the left side from the hips and down the leg.

20. She had a pushbike but no longer uses it because of pain.

21. Her garden, fortunately, is low maintenance, but, although she will mow the internal area, she pays for the mowing of the front areas. She uses a long handled instrument for weeding so that bending is not necessary.

22. She can attend to household chores, but does not hang washing out.

23. Since the accident the plaintiff has experienced mental health problems. On 4 April 2002, an involuntary treatment order was made. She regards this breakdown in her mental health as related to the accident, particularly from her early retirement.

24. It is clear that the plaintiff had a prior history of spinal disability including spina bifida. She had some prior history of mental problems. She had managed, prior to this accident, to cope reasonably well though, of course, she was susceptible to both physical and emotional trauma