Arber v Pistoor [2003] ACTSC 99 (3 December 2003)

Last Updated: 28 January 2004

SANDRA ARBER v PETER PISTOOR [2003] ACTSC 99 (3 December 2003)

DAMAGES - personal injuries - assessment - no issue of principle.

EX TEMPORE JUDGMENT

No SC 573 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 25 November 2003

IN THE SUPREME COURT OF THE )

) No. SC 573 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SANDRA ARBER

Plaintiff

AND: PETER PISTOOR

Defendant

ORDER

Judge: Crispin J

Date: 25 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. there be judgment for the plaintiff in the sum of $217,350.52. I order that the defendant should have credit for any out-of-pocket expenses that have been paid by him on the plaintiff's behalf;

2. the defendant pay the plaintiff's costs.

IN THE SUPREME COURT OF THE )

) No. SC 573 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SANDRA ARBER

Plaintiff

AND: PETER PISTOOR

Defendant

EX TEMPORE REASONS FOR JUDGMENT

Judge: Crispin J

Date: 25 November 2003

Place: Canberra

1. This is a claim for personal injuries sustained in a motor vehicle accident on 2 January 2001. At that time, the plaintiff was the driver of a motor vehicle travelling in an easterly direction on Ginninderra Drive in the Australian Capital Territory. The defendant's vehicle, which was also proceeding in an easterly direction, collided into the rear of the vehicle in which the plaintiff was the driver which was in turn impelled into the vehicle in front. The plaintiff gave evidence during the course of the accident that her head struck the steering wheel. The forces generated by the collision obviously caused her body to move rapidly forward and then back.

2. Liability has been admitted and it is unnecessary to spend any time outlining the circumstances of the accident in any detail. There is no issue of contributory negligence, and the only issue before me is the assessment of damages.

3. The plaintiff gave evidence outlining the symptoms she experienced following the accident. She said that she had generalised pain like a bad flu, that during the weeks that followed, her leg gave way about four times and that she had pain in the neck and found it difficult to move her head. She experienced constant bad headaches from the time of the accident until the very day that she gave evidence yesterday. On occasion these headaches would develop into migraines. Her headaches would be exacerbated by shopping, doing housework, looking downwards and driving. She attempted to treat the pain by taking medication including Zomig and Panadeine Forte.

4. In the witness box, she demonstrated that she had somewhat limited rotation of her neck without pain and that she could look upwards but explained that she experienced pain when she attempted to bend too far forward. She said that from time to time, she experienced tingling in the left arm from the fingers up to the elbows. She had pain in her elbow and shoulder radiating down to the thumb and fingers. She had difficulty using her hand, particularly when picking up pots and pans, and sometimes experienced difficulty holding the steering wheel due to pain.

5. She had constant pain in the region of her coccyx, radiating to the left hip and down her left leg, and she said this was sometimes worse when she sat down. She had pain between the shoulder blades and in the left shoulder, and said that this pain was aggravated when doing things like brushing or washing her hair, or hanging clothes on the line. She said that she found it very difficult to sleep because of pain in the lower back and in her left leg and hip which were aggravated by the positions in which she was obliged to sleep.

6. Prior to commencing to take Prothiaden, she had been able to achieve only about two hours sleep a night but she now did better than that, though she still woke up perhaps two to three times nightly. She said following the accident she noticed pain in her jaw and for a time could not eat anything but soft foods. Pain radiated into the ear and for a time there appeared to be some neuralgia associated with it.

7. She said she had treatment for a period of about six months with a physiotherapist and that apparently achieved considerable improvement, at least for a time. Her jaw problems disappeared after about 12 months but she had problems with fillings in her teeth. She said that she experienced nightmares which were very distressing to her and she became visibly distressed when asked to describe them. She said that she was referred to a psychologist, Ms Lucas, and that the nightmares persisted for perhaps 18 months to two years.

8. She said that sex had proven to be very painful as a result of her disabilities, and in particular it was difficult for her to get into any position to permit it. She had had sex, she said, only about six times since the accident. She said she had put on a lot of weight. She said she becomes very depressed and that she cannot function as before. Prothiaden has been prescribed for her. She saw a psychiatrist, Dr John Saboisky, who had prescribed the antidepressants.

9. She said she now takes Panadeine Forte and Tramal as analgesics. She tries to do the housework, but what she used to do in a day now takes her two weeks. She said she is able to do the vacuuming, though her daughters who are still at home, do their own bathroom and toilet. She has difficulties hanging out the washing and finds standing to cook painful. As a consequence, she has abandoned the more elaborate meals she formally prepared and now prepares very simple meals.

10. She usually goes shopping with her husband and children. She can do this alone but experiences pain doing so. She explained that the symptoms she presently experiences have had a significant impact on her lifestyle. She used to regularly walk, but now she experiences pain doing so and can not walk any great distance due to pain in her bottom and in the left hip and leg. She formerly rode bicycles with her husband and children but said she can not do that anymore due to pain in her left leg and back. She said that she has been unable to swim although she enjoyed periods of hydrotherapy undertaken in an attempt to alleviate her symptoms.

11. She said from time to time her relationship with her daughters suffers because they get upset about her inability to do things that she had formerly been able to do with them. She also said that she had separated from her husband for a period of about two months as a result of a number of issues including sexual difficulties, her husband's loss of patience with her, arguments, and an inability for her to be able to perform as usual.

12. She had returned to work for a short period after the accident but had been unable to keep up the pace.

13. I should mention that the plaintiff, who is now 47 years of age, left school after completing year 9 in 1967 and had a variety of jobs until 1984 when she established her own catering business in Newcastle. In 1985 she moved to Cowra where she had various jobs. She commenced a scissor sharpening business in 1990, opened a fish and chip takeaway business in Newcastle in 1996, and subsequently a fruit and vegetable business in 1997. It appears that the fish and chip takeaway business failed when the steelworks closed, and that the fruit and vegetable business also failed after some short time. She moved to Canberra in 1998 and obtained a job working for LJ Hooker as a sales representative, working sometimes seven days per week.

14. During early 2000, she obtained a job at the Melba High School as canteen manager. She explained that she worked school hours only and had all of the school holidays off. That suited her very well because the short hours, she said, were perfect for a mother. She indicated that she enjoyed the work and would have remained there until she turned 55, or perhaps even longer depending on her health. In that job she earned $820 per fortnight after tax.

15. Sadly, after the accident she found she was unable to keep up the pace in the canteen and after working during the day she would have to go to bed and take painkillers. She resigned after a period of about 2½ or 3 weeks. She said she had been upset at having to resign and that she missed the job.

16. Subject to a trial in one position early this year, to which I will refer in a moment, she has not worked since. However, in February 2002 she commenced a computing course and did I think three units. She said that in doing so she experienced some pain despite the painkillers that she would take to enable her to get through the day.

17. At or towards the end of that period she sold her car to obtain what she described as a Niagra therapy chair which she said enhances the blood flow through massage. She said she uses that chair night and day and apparently gained some relief from it. However, she was obliged to sell the car to get the chair and as a consequence was unable to get to lectures. For that reason and also because of the pain that she had been experiencing she discontinued the computing course.

18. Early this year she had a trial run at a job in the canteen at the Belconnen High School for which she was not paid. Sadly, she lasted only about one week and then had to spend some time in bed recovering from pain in her legs. She said that she hoped to find part time work in the future, and that she thought that she may be able to sustain some part time work if she could set her own hours. However, she did not otherwise feel that she could commit herself to a part time job because she would not be reliable.

19. In cross-examination she had conceded that there had been earlier incidents during which she suffered some injuries and that she had had earlier episodes of both pain and depression at various times during her life including in 2000, which was, of course, the very year before the accident. These concessions revealed a medical history quite different from that which may have been suggested from some of the answers which she gave during the course of her evidence-in-chief.

20. Furthermore there were some aspects of her evidence that I was unable to accept. For example, whilst she claimed to have put on a great deal of weight after the accident she conceded in cross-examination that by the time she saw her general practitioner, Dr Lang, she weighed probably about 90 kilograms. It appears, if anything, that she has lost weight since.

21. In other circumstances these inconsistencies may have cast grave doubts upon the plaintiff's general credibility. However, I formed the impression that the injuries sustained in the accident and her resulting disabilities had had quite a devastating personal effect upon her and her enjoyment of life, and that she may have looked back to her health during the years immediately prior to the accident as having being reasonably sound in contrast with that which she now experiences. She also conceded in cross-examination that she had spoken to her general practitioner about problems with her memory and she appeared to readily make concessions when matters were drawn to her attention. Furthermore she clearly found giving evidence a discomforting experience; on some occasions standing up in the witness box and holding her back in an attempt to alleviate the pain, and on other occasions becoming visibly distressed when asked about such topics as the nightmares she experienced after the accident, her sexual relationship with her husband, and strains upon her marriage.

22. She was cross-examined about the nightmares she claimed to have experienced after the accident and conceded that she had previously complained of similar nightmares following the break up of her first marriage, though in the earlier nightmares she had been running when she saw that her children had been decapitated, whereas, in the more recent nightmares she had seen these gruesome images after her car accident. I see no reason to doubt her evidence that these nightmares returned after the accident and I reject any suggestion that she was merely capitalising on an earlier experience, or invoking it, in order to manufacture a further symptom.

23. I also formed the impression that despite any earlier health difficulties, she had constantly striven to remain in employment or in business, and that she had been able to work quite long hours at various times prior to obtaining the position at the Melba High School.

24. Mr Ryan, who appeared for the defendant, submitted that many of her present symptoms may not have been attributable to the accident but to antecedent causes and also suggested that she may have significantly exaggerated them. I must say that there appeared to me to be no real evidence to support the proposition that she had been exaggerating other than the opinion of one medical practitioner who thought that there may have been a slight measure of exaggeration. On the other hand, Dr Stubbs, an orthopaedic surgeon who examined the plaintiff on behalf of the defendant, did not suggest that she had been exaggerating, but, on the contrary, in successive reports expressed the opinion that she had given unexaggerated accounts of herself.

25. Having had the opportunity of observing the plaintiff in the witness box over a period of several hours I was satisfied that she gave her evidence honestly.

26. Her evidence was also supported to some extent by that of her husband who confirmed that her activities had been very substantially limited since the accident. I have of course ignored assertions by him as to the pain which he believed his wife had been experiencing, but his evidence as to the limitations evident in her conduct during the period since the accident was significant. That is not to say that there were not some inconsistencies between his evidence and the plaintiff, but those inconsistencies appeared to relate to their relationship and periods of separation rather than matters directly relevant to the extent of her symptomatology.

27. I accept Mr Ryan's submission that she had clearly had problems with anxiety and perhaps even depression during early 2000; though on the other hand the evidence suggests that she was generally coping with life well by the time of the accident.

28. It is, however, necessary to take into account the fact that her health was somewhat vulnerable, and that appears to have been especially true of her spine. Dr Owen White, a neurologist, in his report of 16 August 2001 referred to an MRI scan of her lumbosacral spine performed in that month which showed marked dehydration changes in the lower two discs with narrowing of the L4-5 and more marked narrowing of the L5-S1 disc, the latter of which was bulging slightly but not impinging on any neural structures.

29. Dr Colin Andrews, a neurologist, said in his report of 6 June 2002 that the MRI scan had shown a degenerative disc at L4-5 and L5-S1, without neural involvement and without any prolapse. Whilst Dr Andrews seemed to be in substantial agreement with Dr White he added that he thought that in the cervical region there had been aggravation of some pre-existing cervical facet joint osteoarthritis. Dr White on the other hand, thought that the plaintiff had suffered widespread soft tissue injury.

30. In his report of 12 December 2001, Dr Stubbs stated that her clinical features were well localised problems in the low lumbar and low cervical regions. He said that pain locates well and she was consistent in her physical activity so he was quite prepared to accept that there is an aggravation of pre-existing, but probably symptomless, degeneration in the low lumbar and low cervical regions. He said:

The symptoms have now been present for almost 12 months and will probably persist. Her present treatment regime which is accentuating physical fitness and spine flexibility is the most appropriate one for her. I would not recommend further investigations or more complex treatment, certainly not invasive treatment.

31. In his subsequent report of 24 October 2003 he essentially adhered to that opinion. He indicated that he did not believe that the plaintiff needed any significant ongoing treatment, and suggested that whilst he doubted that she would return to work prior to settlement he would not be surprised to see her in some limited part time employment afterwards.

32. He referred also to the difficulty of substantiating the presence of post traumatic stress disorder and added that depression was a possible concurrent condition since the somatisation involved in depression will result in exactly the same list of symptomatology that patients with longstanding road trauma related neck injuries complain of.

33. The plaintiff also saw a psychiatrist, Dr Saboisky, who in a report dated 16 September 2002 expressed the opinion that she suffered from a chronic pain disorder, although he said that the organic basis for this was somewhat unclear. He added that he suspected that she had a major soft tissue injury and that this had led to chronic neuropathic pain which had been compounded by an adjustment disorder with mixed features of anxiety and depression.

The anxiety was clearly related to the motor vehicle accident and much of it had been focused on the fear of driving and being hit again. The depression appeared to have been inextricably linked to her chronic pain and the resultant loss in her capacity to work to undertake the full range of domestic activities, to engage successfully as a wife and to rejoin the workforce.

34. Dr Saboisky added that whilst he thought that her psychiatric condition had been caused by the motor vehicle accident, life had been difficult for the plaintiff.

She had been in a long difficult marriage, lost her mother in tragic circumstances, and required to seek bankruptcy because of the failed business venture. There have been a number of bouts of depression linked to those factors.

He added,

In that sense, she was predisposed to reacting adversely to this type of accident, which she, of course, had no control over.

35. He said that he thought that she would benefit from ongoing psychiatric treatment and recommended that she continue on psychotropic medication and have reasonably regular reviews by a clinical psychologist. He suggested 20 sessions which he suggested would cost about $150 per session, and added, "I would have thought that 20 sessions would be a reasonable number to help her cope with her chronic pain and assist in a return to work".

36. For present purposes, I think it is unnecessary to refer to the balance of the medical evidence, although I have read it all and taken it into account. The preponderance of the medical evidence demonstrates, in my opinion, that whilst there may be some differences of view as to the physiological component of her pain, nonetheless there would have been some physical injury, whether consisting solely of soft tissue injury as Dr White thought, an aggravation of degenerative changes to her spine as Dr Stubbs thought, or an aggravation to her cervical facet joint osteoarthritis as Dr Andrews thought.

37. In addition, I accept Dr Saboisky's evidence that the plaintiff has suffered from a chronic pain disorder compounded by an adjustment disorder with mixed features of anxiety and depression. In these circumstances, I conclude that whilst her earlier medical history suggests that she may have been vulnerable to further episodes of pain and depression even if she had not been experiencing symptoms at the time of the accident, I nonetheless accept her evidence as to the general nature and extent of the pain and other disabilities which she has experienced since.

38. It is clear that those symptoms have had a dramatic effect upon her life. However, it is necessary for me to take into account the chance that the degenerative changes to her back, emotional vulnerability and other areas of physical vulnerability may have caused her ongoing problems in the future even if she had not sustained this accident.

39. Taking that factor into account and balancing it against the extremity of the symptoms she has described in evidence, I allow the sum of $55,000 for general damages, together with a further sum of $1,740 for interest calculated at 2% per annum for a period of 2.9 years on a component of $30,000 which I attribute to the pain, suffering and loss of the normal amenities of life experienced to date.

40. So far as past loss of earnings are concerned, I note that at the time of the accident, the plaintiff was earning approximately $410 per week net for 39 weeks of each year. On my calculations, her net loss of wages since the accident would have been $46,740 had she not returned to work for a very short period of time immediately after the accident. However, during that period she apparently earned only $601, so her net wage loss was reduced to $46,139.

41. It is difficult to calculate the net value of the superannuation benefit which she would have received over that period since the compulsory employer's contribution is based on the gross rather than the net wage and is then subject to what, for most wage earners, amounts to a concessional rate of taxation. However, I allow the sum of $4,000 for this figure.

42. In my opinion, the resultant sum of $50,139 must be reduced to some degree to allow for the fact that, having regard to her previous health record, there should be some allowance for the contingency that she may not have been able to work for the whole of that period. I allow the sum of $45,000 in total for past wage loss. To that sum should be added interest at 4.5% for 2.9 years which amounts to $5,873.

43. So far as future economic loss is concerned, I see no reason to doubt the plaintiff's evidence that she had intended working until she turned 55 years of age, but on the other hand, regard the prospect of her working beyond that age as being too speculative to take into account for the purpose of the relevant calculations. There is no evidence as to the current income of the person who is now doing her former job, but if one were to take the pre-accident wage of $410 net per week for 39 weeks, which amounts, on my calculations, to $15,990 per annum, and project that to age 55, with due allowance for a discounting factor of 3% per annum, that would produce a figure of approximately $98,560.

44. Whilst there is a period of less than seven years until her 55th birthday, I nonetheless think it appropriate to discount that amount by 30% to allow for the contingencies of life. There are a number of matters which have been taken into account in the determination of that discount factor. The first is the likelihood that her physical and emotional vulnerability, including the state of her spine, would have left her vulnerable to unrelated problems throughout that period. The second is that there is some possibility of a future amelioration in her symptoms due to psychiatric treatment or pain management courses. The third is the possibility that she may be able to find part-time work, although I must say that I think her prospects of obtaining substantial amounts of part-time work are slight. This is a 47 year old lady who left school after completing year 9, who is unable to sit or stand for long periods of time, who has no other qualifications apparently, other than partial completion of the computer course and who regards herself as being able to engage in part-time work only if she is able to set her own hours.

45. I also note that the figures that I have calculated are based upon a wage figure which is some three years out of date. Notwithstanding that, it seems to me that the reduction of 30% is appropriate for the contingencies during the next seven years. That reduces the figure for future wage loss to $68,992 to which I add the sum of $7,000 for loss of superannuation payments. That makes a total figure of $75,992 for future economic loss.

46. There is a paucity of evidence to support the Griffiths v Kerkemeyer claims and it appears that the plaintiff struggles through most of the domestic chores notwithstanding the time it takes and the pain she experiences in doing so. Her husband gave evidence that he does perhaps an extra one to two hours work per week and that the children have also been conscripted to do work that they were not doing prior to the plaintiff having the accident. In the circumstances, I allow the sum of $5,000 in relation to the period up to date and I allow a further sum of $5,000 for the future, having regard to the possibility that circumstances may change if her symptoms are alleviated whether as a result of psychiatric treatment, pain management courses or the like, and for the fact that it seems likely that her daughters would, in any event, have assumed somewhat more of the load as they grew older.

47. So far as out-of-pocket expenses are concerned, I allow the sum of $18,245.52, that being the figure claimed by the plaintiff less two items; one being the amount claimed for dental expenses, which I am not satisfied were incurred by the accident, and the other being the sum of $185 which was apparently claimed in error. It appears that some $3,295 was paid by the plaintiff during the period of three years since the accident and I allow interest of $500 on that sum.

48. Finally, in all the circumstances, I allow the sum of $5,000 for future out-of-pocket expenses.

[DISCUSSION WITH COUNSEL AS TO CALCULATIONS]

49. In that event I order that there be judgment for the plaintiff in the sum of $217,350.52. I order that the defendant should have credit for any out-of-pocket expenses that have been paid by him on the plaintiff's behalf. I order the defendant to pay the plaintiff's costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 3 December 2003

Counsel for the plaintiff: Mr S Pilkinton

Solicitor for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr P D Ryan

Solicitor for the defendant: Abbott Tout

Date of hearing: 24, 25 November 2003

Date of judgment: 25 November 2003