Vejvara v Schmidt [2004] ACTSC 114 (20 October 2004)

Last Updated: 29 October 2004

DANUTA VEJVARA v TONY SCHMIDT

[2004] ACTSC 114 (20 October 2004)

EX TEMPORE JUDGMENT

DAMAGES - personal injury - motor vehicle collision - whiplash injury to neck and upper back - no issue of principle

No. SC 564 of 2003

Judge: Master Harper

Supreme Court of the ACT

Date: 20 October 2004

IN THE SUPREME COURT OF THE )

) No. SC 564 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DANUTA VEJVARA

Plaintiff

AND: TONY SCHMIDT

Defendant

ORDER

Judge: Master Harper

Date: 20 October 2004

Place: Canberra

THE COURT ORDERS THAT:

1. judgment be entered fro the plaintiff in the sum of $69,895.79.

2. the defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injury arising out of a motor vehicle accident. Liability is not in issue and the action comes before the court for the assessment of damages only. The plaintiff was born on 3 May 1964 and is 40 years old and a public servant employed by the Commonwealth Treasury Department in a secretarial capacity. She was born in Canberra and grew up here and she has been working with the Treasury for 20 years. She is divorced and lives with her two children, a son of 14 and a daughter of 10.

2. On 23 February 2002 she was a rear seat passenger in a Mazda sedan which was stationary at the intersection of Belconnen Way and Benjamin Way at Belconnen when the rear of that vehicle was struck by the front of a Datsun Bluebird being driven by the defendant. The plaintiff heard a screech of brakes but was otherwise unprepared for what she described as a heavy impact and she immediately felt pain in her neck, shoulders and upper back. Although the accident was not one attended by police or ambulance, and there was little damage to the rear of the vehicle in which the plaintiff was travelling, I am satisfied that the impact was a substantial one and it appears that the damage was minimised by the fact that the vehicle had a tow bar to absorb much of it.

3. The plaintiff was driven to Calvary Hospital where she was treated but not admitted. X-rays were taken of her cervical spine which were apparently normal, and she was prescribed Tramil and Naprosyn. She was sent home and told to return to the hospital if her symptoms continued. They did, and she went back to the hospital on the following day for further treatment. By that time she had developed a severe headache accompanied by nausea and causing vomiting.

4. She had not improved by 26 February, that is 3 days after the accident, when she went to see her general practitioner Dr Stott at the Kingston Family Practice. Dr Stott found that she had significant tenderness and stiffness. He advised her to continue with the medication that she had been prescribed at the hospital and he referred her for physiotherapy. He gave her a certificate for time off work and continued to monitor her.

5. It appears that a firm of rehabilitation consultants became involved on the instructions of the defendant's insurer at about this time, and they assisted in getting the plaintiff back to work on a part-time basis from 11 March 2002 when she went back to work 4 hours a day, with periodic breaks and with postural correction exercises. She returned to full-time work on 17 May 2002.

6. On 8 June she saw Dr Stott again complaining of upper left facial and periorbital pain and headache. Dr Stott thought that this might be sinusitis but this was eliminated by a CT-scan of the sinuses. The plaintiff had a severe exacerbation of her symptoms on 16 June when she presented at the Casualty Department at Calvary Hospital. She was treated with anti-migraine therapy with some success and was admitted overnight. She had a few days off work at that time, and thereafter she continued to suffer from chronic headaches of a migraine character.

7. Dr Stott referred her to a neurologist, Dr McColl, who saw her on 9 July 2002. He recorded at that time that she had had headaches for about 10 weeks. They had become much more severe about 5 weeks earlier. She had been treated with Largactil, Ketalorac and other treatments which have provided little relief. She complained of feeling very tired. She had tried Sandomigran and Naprosyn for her headaches but obtained no relief from these, and her medication had been changed to Indoral about 2 weeks before she saw Dr McColl and this had led to some reduction in her headaches and she was taking Inderal twice daily. Dr McColl thought that the presentation was consistent with migraine which he thought might have been precipitated by the recent neck injury, and certainly he could not exclude that she had suffered a soft tissue injury in the motor vehicle accident which had acted as a trigger for the migraine.

8. Dr McColl saw her on two further occasions at intervals of about a month. On 6 August 2002 her headaches were mildly better but still a significant problem. She also complained of neck pain. She had been given an increased dose of Indorel but the increase had not led to significant relief and she had been prescribed Amitriptyline which, in conjunction with the Indorel, had led to some relief of symptoms. Dr McColl noted subtle areas of misalignment in her cervical spine on X-ray. He thought physiotherapy could be useful and he ordered an MRI scan of the cervical spine. This was carried out 2 days later and showed posterior disc bulges at C4-5 and C5-6, with some desiccation of the C6-7 disc and some associated posterior bulge.

9. Dr McColl, when he saw the plaintiff a month later early in September, noted that the disc bulges shown on the MRI scan were contacting the spinal cord but not causing any neural compression. He thought that although these bulges were unlikely to be directly causing the plaintiff's pain they could be associated with altered neck mechanics and could predispose her to muscular neck pain and headaches. He recorded that the plaintiff's headaches were much better and her major migraines had essentially resolved by that date. She had headaches which he thought were consistent with tension headaches and he increased her Amitriptyline dose and invited the plaintiff to return if her headaches continued, but he did not see her again.

10. Dr McColl expressed the opinion in a subsequent report which was in evidence that it seemed likely on balance that the motor vehicle injury had made at least a partial contribution to the abnormal findings on MRI and that the injury was probably more than 50% responsible for the plaintiff's neck pain and headaches. Indeed, it was possible that the accident was completely responsible for her disc bulges and neck pain, the likelihood of that depending on the speed of impact, which I interpolate was not something which I was able to arrive at a finding about from the evidence.

11. But Dr McColl expressed the view that it was more likely than not that the whiplash injury and the consequent neck pain contributed to the plaintiff's headaches, notwithstanding the delay of some 3 months between the accident and the onset of the headaches. This was made more likely by the history of no previous migraine headaches and no family history of migraine headaches, and also by the fact that Dr McColl was unable to identify any other cause for the headaches.

12. Dr McColl expressed the view in that report in April 2003, though not having seen the plaintiff since September 2002, that he said firstly it was very difficult to assess the plaintiff's prognosis, particularly as he had not seen her since September 2002. But he said that most patients recover from such injuries over several months, so that a full symptomatic recovery was more likely than not. But he went on to say that some patients have continued neck pain and headaches without substantial relief for years after a similar whiplash injury, though he thought that unlikely because the plaintiff had had a reasonable partial response to therapy. At that time Dr McColl assessed the plaintiff's chance of an excellent recovery at about 75% and her chance of continued pain and problems at about 25%, though he said this was only a subjective estimate.

13. He went on to say that regardless of her short term prognosis her abnormal neck mechanics would predispose her to secondary arthritis in later life, so that she was likely to have accelerated osteoarthritis of the neck appearing decades after the accident, and that this might itself cause significant neck pain and headaches. He said that there was also a very slight chance, no more than 5%, that a worsening disc bulge could ultimately cause some cord compression which would be an indication for neurosurgery, and that the plaintiff needed to avoid heavy lifting to minimise the prospects of that development.

14. The plaintiff was seen on two occasions for medico-legal purposes by Dr Owen White, a neurologist, both of those occasions being well after the time she was last seen by Dr McColl. In April 2003 Dr White saw her and formed the view that she had suffered a significant whiplash injury, probably with damage to the C5-6 and C4-5 discs, and that she had developed post-traumatic migraine which appeared to be coming under control with Amitriptyline. At that stage he anticipated that there would be complete resolution of her symptoms over a period of approximately 2 years.

15. Dr White saw the plaintiff again in July 2004 and recorded complaints of daily headaches, sometimes associated with nausea, for which the plaintiff was taking Endep and also using Panadol from time to time. He recorded a complaint also of intermittent cervical pain, possibly several times a month, getting worse during the day and tending to resolve in the evening. He said that there had been no change in real terms since he had seen her the year before. He noted some manifestations of depression in her demeanour. He said that she had substantial disruption of cervical discs at two levels and that these were probably the cause of her ongoing pain. He, by July 2004, had changed his opinion and by then did not believe that there would be significant improvement in the future, the plaintiff having failed to improve substantially over 2 years. He described her as having discomfort but not disability and he expressed the view that she would continue to have pain at her current level in the long term.

16. Whilst dealing with the neurological aspects of the case, I should mention that the defendant relies on a report by Dr Lethlean, a neurologist who saw the plaintiff for medico-legal purposes in March 2004. Dr Lethlean noted what he described as mild cervical symptoms and also referred to her continuing scalp and frontal headaches and said that it was reasonable to relate those to the injury. He thought that her present management, that is reliance on medication, was appropriate and would continue indefinitely. He said it was probable but not definite that the headaches would in due course lessen, but he said that they could continue indefinitely. He said that he thought the plaintiff's prognosis was good, in that her headaches might continue or lessen, but I take it would not get any worse. And he said that her cervical and thoracic spinal difficulties were limited, by which I take it that Dr Lethlean was expressing the view that they would ultimately recover.

17. Overlaid upon her neurological symptoms the plaintiff developed some psychological symptoms. These were described by Dr George, a psychiatrist who was qualified on behalf of the defendant, as meeting the diagnostic criteria for a mild to moderate adjustment disorder with anxious mood, associated with some degree of phobic anxiety. The phobic anxiety was reflected in nervousness as a passenger and as a driver in a motor vehicle, and in a refusal to drive into the lane where the accident occurred, and an endeavour to avoid that intersection.

18. Dr George noted that it had been recommended to the plaintiff by those treating her that she see a psychologist and that she had had one session with a psychologist who had recommended a program of cognitive behavioural therapy. He noted that the plaintiff believed that it would be reasonable for her to go through such therapy in the future, but that she thought she had not been able to afford it at the time it was recommended.

19. Dr George concluded that the plaintiff had mild phobic avoidance associated with the location of the accident, but he said beyond this she did not appear to have any particular ongoing symptoms worthy of treatment. I take Dr George to be acknowledging that it would be reasonable for her to undergo some treatment directed at the phobic avoidance anxiety condition.

20. It was suggested by the psychologist she saw that a number of sessions would be necessary, perhaps 10. Dr Stern who was qualified on behalf of the plaintiff thought that she would be helped by psychological treatment of at least 10 sessions. His opinion should be seen in the context that he diagnosed the plaintiff as suffering from post-traumatic stress disorder, a diagnosis which Dr George disagreed with and which is not pressed on behalf of the plaintiff. Nevertheless, it seems to me that from one's general knowledge of the course of psychological treatment a program of 10 sessions directed at a condition such as the phobic avoidance anxiety would be a reasonable program.

21. The plaintiff had a history of some injury prior to this motor vehicle accident. 20 years ago she had been diagnosed as suffering from repetitive strain injury when working at the Treasury and had been treated through Comcare for that condition over an extended period, including a flare-up of symptoms in about 1991, and she had lengthy periods off work both in 1984 and in 1991. However, she had been back at work full-time for a lengthy period prior to the motor vehicle accident with adjustments made to her working conditions by her employer and by Comcare. And whilst the continuing symptoms from that condition had caused some restriction in the plaintiff's capacity to undertake physical work around her house, I am not satisfied that the condition was likely in the future to interfere with her capacity to continue working and earning income, and I see it as relevant only to the claim for the provision of gratuitous domestic services raised in the particulars of the plaintiff's claim.

22. She also suffered from a condition causing pain in both her knees for which she received extensive acupuncture treatment in 2000 and 2001, that is the 2 years leading up to the motor vehicle accident, and that condition and treatment were not disclosed by the plaintiff in her evidence-in-chief but emerged during cross-examination. It was not submitted by counsel for the defendant that this was because of any deliberate attempt to mislead the court and I am satisfied that the plaintiff simply did not see the knee condition as relevant, either positively or negatively, to the present claim. Other than its potential impact on credit it does not seem to me of any significance either, except to the extent that it would indicate that there were probably certain activities around the home which the plaintiff would not have been able to engage in because of her knee condition in the period leading up to the motor vehicle accident.

23. It seems to me on the medical evidence that more probably than not the plaintiff will continue to suffer from headaches indefinitely and that she will require that these be controlled by medication, to the degree they can be, and accordingly I am satisfied that the plaintiff will have a continuing need to consult her general practitioner at regular intervals, both to monitor her condition and to obtain renewals of prescriptions for her medication.

24. I accept the view of Dr McColl that the abnormalities apparent on the MRI scan were caused wholly, or at least as to 50%, by the motor vehicle accident and that those abnormalities will predispose the plaintiff to the development of secondary arthritis much later in life, some decades into the future, and that the development of that condition is likely to increase her neck pain and her headaches. I am not satisfied that the very slight chance that a worsening disc bulge might ultimately cause some cord compression and that that might lead to neurosurgery is something of such a degree of likelihood that any allowance for it should be made in the plaintiff's damages.

25. I am satisfied that the plaintiff went through an extremely traumatic experience at the time of the accident which caused her considerable pain and shock, and I am satisfied that her headaches in June 2002 were extreme, and that her continuing headaches since of such a level that they are masked but not cured completely by the medication she takes. And it seems to me that the plaintiff has been stoic and strongly motivated to continue working and engaging in the activities of everyday life, despite headache and neck pain symptoms which might have disabled a less motivated person from continuing to work at all.

26. It seems to me that an appropriate sum to compensate the plaintiff for her pain and suffering and loss of enjoyment of life is $50,000 which I apportion as to $20,000 for the past and $30,000 for the future. I allow $1,000 by way of interest on the past component. In relation to past loss of earnings the plaintiff has had considerable periods off work in the first 5 months after the accident, but was fortunate to have the benefit of sick leave credits, having a value of some $2,552.08, so that she lost no pay at the time but she has lost the value of those credits.

27. The evidence does not enable me to calculate mathematically the present value of the plaintiff's accumulated sick leave credits, but I take account of the fact that she has been in the Commonwealth public service for 20 years and that, whilst she had extensive periods off work in 1984 and again in 1991, those would have been covered by Comcare and would not have been at the expense of her sick leave credits. Thus my task is to compensate her for the loss of those credits, and that compensation must take account of the likelihood that she would have or will need to utilise those credits in the future. As I say, it is not something which can be arrived at mathematically. It seems to me that a proper allowance for loss of sick leave credits is $1,500.

28. The treatment expenses are agreed at $6,645.79. Of that sum most has been paid either by the defendant's insurer or by the Health Insurance Commission. Some $1,500 of it has been paid by the plaintiff, that attracts interest calculated at commercial rates but the calculation must take account of the fact that the payments have been spread, I assume relatively evenly, over the period of some 2 years and 8 months since the motor vehicle accident, and in those circumstances I allow $250 for interest on those treatment expenses to the extent that they have been paid by the plaintiff.

29. I make no allowance for interest on the past economic loss because no actual loss has been suffered to date. There is a claim for the provision of services to the plaintiff on a gratuitous basis by relatives. The evidence is that the plaintiff's 14-year-old son mows the lawn and does some other things around the house, including tidying his room, and that he gets paid some pocket-money for that. It seems to me that that is to be characterised as no more than a re-arrangement of normal domestic activities, having regard to the son's age. And I must also take account of the fact that some of those activities, probably including vacuuming and floor scrubbing, would not have been open to the plaintiff anyway, having regard to her previous repetitive strain injury condition and her knee condition.

30. However, I accept that for a closed period immediately after the accident, certainly until the plaintiff got back to work part-time and probably until she got back to work full-time, there were activities which she was unable to attend to and which would have been attended to by others, including by her cousin who acted as her chauffeur on occasions. In the absence of specific evidence about hours it is again not possible to perform a mathematical calculation. But I indicate that in the absence of any evidence I am not satisfied that the claimed rate of $40 an hour is appropriate and would be inclined to allow services of that kind at a range of $15 to $20 an hour, and I make an allowance for the past Griffith v. Kerkemeyer component of $500, which includes interest. I note that there is no claim for a future similar component.

31. There is a claim for future treatment expenses and the plaintiff is going to need to consult her general practitioner regularly and she is going to have chemist expenses for Endep, a prescription drug, and also for Panadol, a non-prescription drug, and I think it is likely that the plaintiff when put in funds to do so will choose to undergo the psychological treatment which has been recommended to her, that being about 10 sessions at about $120 a session. To cover all of those aspects of future treatment expenses I allow $5,000.

32. There is also a claim for impairment of earning capacity for the future, and in that regard I am again influenced by Dr McColl's reference to her predisposition to secondary arthritis in later life and the development of osteoarthritis in the neck decades after the accident. The plaintiff is now 40 and would be in position to continue working until aged 65 if she chose. I take account of the fact that many people elect to retire earlier than that, but I also take account of the plaintiff's evidence about her own financial position, to the extent that she was unable to afford the psychological treatment which was recommended to her, which suggests to me that she is, unless she has some significant change in her financial position, unlikely to be in a position to afford to retire at a particularly early age, and I also take account of the trend to move away from compulsory retirement ages.

33. To take account of the fact that the plaintiff's condition may deteriorate, requiring her to take time off work for treatment or to recuperate from exacerbations of her condition, and to take account of the possibility that the development of arthritis in the neck may force her to retire earlier than she would otherwise have chosen to do, I award a generalised amount of $5,000 by way of future economic loss.

34. The individual components are as follows:

general damages $50,000.00

interest on the past component $1,000.00

past treatment expenses $6,645.79

interest on the component of that paid by the plaintiff $250.00

past loss of earnings and loss of the value of sick leave credits $1,500.00

past Griffiths v Kerkemeyer $500.00

future treatment expenses $5,000.00

future loss of earning capacity $5,000.00

total $69,895.79

35. There will be judgment for the plaintiff in the sum of $69,896.79.

36. The plaintiff's costs are to be paid by the defendant.

I certify that the preceding thirsty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 26 October 2004

Counsel for the plaintiff: Mr F M G Parker

Solicitor for the plaintiff: Gary Robb and Associates

Counsel for the defendant: Mr M A McDonogh

Solicitor for the defendant: Hunt & Hunt

Date of hearing: 20 October 2004

Date of judgment: 20 October 2004