Andrikis v Nominal Defendant [2004] ACTSC 2 (10 February 2004)

Last Updated: 17 February 2004

CASSANDRA ANN ANDRIKIS v NOMINAL DEFENDANT

[2004] ACTSC 2 (10 February 2004)

DAMAGES - personal injury - soft tissue injuries to neck and back - surveillance video evidence - no issue of principle.

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

No SC 526 of 2001

Coram: Master Harper

Supreme Court of the ACT

Date: 10 February 2004

IN THE SUPREME COURT OF THE )

) No SC 526 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CASSANDRA ANN ANDRIKIS

Plaintiff

AND: NOMINAL DEFENDANT

Defendant

ORDER

Coram: Master Harper

Date: 10 February 2004

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $100,378.63.

1. 1. This is an assessment of damages for personal injury arising out of a motor vehicle accident on 3 May 2000 on a roundabout at the intersection of William Slim Drive and Chuculba Crescent, Giralang. The defendant is sued in respect of the negligence of the driver of the vehicle at fault, which has never been identified. There was no impact between the two vehicles. The driver of the unidentified vehicle entered the roundabout in front of the plaintiff's vehicle, forcing her to brake sharply to avoid a collision. It was raining and the road surface was wet. The plaintiff's vehicle skidded and its front passenger-side mudguard collided with a guardrail. The plaintiff's evidence is that there was significant damage to the car: it was a 1975 Datsun sedan of little commercial value, and it is not surprising that it was damaged beyond economic repair.

2. The plaintiff stayed at the accident scene for some time, her vehicle partially blocking the roundabout. Many cars drove past while she was there, but no one stopped to help. She felt, at the time and for long afterwards, a considerable degree of anger towards the driver of the unidentified vehicle, the other drivers who did not stop, and herself for losing control of the car.

3. The plaintiff is the younger of two children: her father, now aged about 55, has retired from the Royal Australian Air Force. Her parents moved from Canberra to Queensland in late 2002. Sadly, her mother died suddenly in February 2003 of a cerebral aneurism.

4. The plaintiff's family moved a number of times when she was a child, because of her father's occupation, living at different times in New South Wales, Queensland and Victoria. They spent two years in the United States, where the plaintiff completed years 10 and 11. They moved to Canberra after that posting, and the plaintiff undertook year 12 at Copland College in 1994. She became pregnant while in year 12, and did not qualify for tertiary entrance. Her first child, a son, was born in April 1995. By the time of the motor vehicle accident, she was married to her husband Adam, an area manager with Red Rooster, part of the Coles Myer group of companies. Two more sons were born in October 1997 and June 1999, and a daughter in August 2002.

5. At the time of the accident, the plaintiff was on her way to work. She was employed by Red Rooster, Belconnen as a customer service assistant, a position she had commenced on 3 January 2000. She had started the job, a full-time one, when her youngest son was about six months old. She and her husband were able to arrange their working hours so that as far as possible, one parent could be at home with the children while the other was working. This was not fully achievable, and some outside assistance was necessary.

6. The plaintiff's first job after leaving school had involved stacking shelves for a few hours a day, starting at 4:00am. She began this work when her baby was about six weeks old, and continued it for about six months. About a year later, she got a job at a supermarket, where she worked for about six months, until she had to give up because of her second pregnancy. She was not employed again until she started at Red Rooster.

7. On 29 February 2000, the plaintiff was backing out of a parking space at Red Rooster, and collided with a taxi. She saw her general practitioner two days later, presenting with muscle spasm in the neck and back. He gave her a certificate for two days off work. The injury did not resolve as quickly as he had hoped: she saw him again on 15 March, complaining of continuing neck pain. He noted tenderness at C6-7 accompanied by muscle spasm, and prescribed Voltaren and Panadeine Forte. He also suggested that she see a chiropractor, and return for review in two weeks, though it does not appear that she accepted either recommendation. Although the collision on 29 February 2000 occurred in circumstances which would have entitled the plaintiff to workers' compensation, she made no claim. Her evidence is that her injuries cleared up quickly, and by the time of the accident on 3 May she had made a complete recovery. This is consistent with the fact that she was back at work full-time by then, and I accept her evidence in this regard. Counsel for the defendant attempted to make something of the fact that the plaintiff had minimised the severity of the injuries she suffered in the February collision in giving a history to the doctors she saw for medico-legal purposes. If she did so, I am not satisfied that it was deliberate or of any consequence.

8. After the collision on 3 May 2000, the plaintiff's evidence is that she succeeded eventually in starting the car and moving it off the road. She noticed immediate pain and stiffness in the neck and low back, and sometime later in the day soreness in the right shoulder. She went to see her general practitioner, Dr Tim Watson, whose notes confirm a complaint of whiplash injury and injury to the lower back. He found that the paraspinal cervical muscles were very tender, as were the strap muscles. Range of movement in the back was poor. He prescribed Endone, a strong pain killer, and Naprosyn, and gave the plaintiff a certificate for a week off work. She saw him again on 9,10 and 12 May. On 10 May the pain was reported as very severe and Dr Watson prescribed Panadeine Forte. He certified her as unfit for a further two weeks.

9. The plaintiff saw Dr Watson in relation to her neck and back on a further fifteen occasions during the balance of 2000. In November 2000, he reported to the workers' compensation insurer that the plaintiff was making a slow recovery from a moderately severe whiplash injury, primarily affecting the neck. He referred her for massage and chiropractic treatment and rehabilitation assessment, and prescribed painkilling medication. He thought that the injury might take as much as two years to settle down but that the plaintiff's prognosis for the medium to long term was very good. He expected that she would regain her full working capacity.

10. The workers' compensation insurer arranged for the plaintiff to be assessed by an orthopaedic surgeon, Dr Roger Pillemer, on 7 June 2000, a month after the accident. She told him that her low back symptoms had settled. She still had discomfort in the interscapular region of the back and the right trapezius area, but the main discomfort was in the base of her neck on the right side. Her symptoms had been very severe for the first three weeks, but were improving. Neck movements on examination were only about 20% of normal. Dr Pillemer thought that the plaintiff was genuine, that she had suffered soft tissue injuries to the neck and back, and that she would continue to improve.

11. In September 2000, the insurer referred the plaintiff to another orthopaedic surgeon, Dr Derrick Billett, for assessment and opinion. Dr Billett found considerable constriction of all neck movements. The plaintiff complained to him in addition of intermittent pain in the low back. Dr Billett thought that she might have some nerve root irritation on the left side of the lumbar spine, but that otherwise her injuries were soft tissue in nature. He thought that she was genuine, and did not consider her fit to resume her pre-injury duties.

12. The employer and the insurer, with professional assistance from CRS Australia, a rehabilitation provider, put in place arrangements for the plaintiff to make a graduated return to work. This commenced in late June 2000 but lasted only a few days. A more successful attempt was made in mid-August 2000, with the plaintiff working two hours a day, three days a week. In mid-November, the plaintiff was certified by Dr Watson as unfit for work. She did not resume until the beginning of February 2001. Over time the plaintiff was able to increase her hours, and by August 2001 was working three hours a day, three days a week. In mid-December 2001, however, the plaintiff had a flare-up of neck symptoms, and Dr Watson put her off work again. The employer formally terminated her employment early in 2002, and she has not worked since.

13. In September 2000, Dr Watson diagnosed the plaintiff as suffering from hyperthyroidism, and prescribed appropriate medication. He expressed the view in two reports that the condition was triggered by the accident. Dr Watson did not give oral evidence and thus was not cross-examined. His opinion is contradicted by Dr G.G. Griffith, a consultant surgeon whose reports were tendered in the plaintiff's case. Dr Griffith refers to the hyperthyroidism as an incidental, non-causally related condition.

14. Dr Leon Le Leu, an occupational physician qualified by the solicitors for the defendant, gave oral evidence. It is clear from his reports that he regarded the thyroid condition as unrelated to the motor vehicle accident: nothing was put to him in cross-examination suggesting otherwise.

15. I prefer the opinion of the specialists to that of the general practitioner, Dr Watson, on this issue. I am not satisfied that there is any causal connection between the motor accident and the development of the thyroid condition.

16. One of the plaintiff's complaints is of a fear of driving, particularly on wet roads. This was investigated by Dr Donald Lawrence, a psychiatrist qualified by her solicitors, and Dr Michael Duke, a psychiatrist qualified by the solicitors for the defendant. I am satisfied that the plaintiff suffered, following the motor accident, from a residual acquired specific phobia of driving in the rain, resulting in her becoming rather panicky if caught in the rain while driving. I accept that the phobia is a mild one and has diminished over the period since the accident. It is likely to continue to diminish to a negligible level.

17. The plaintiff was extensively cross-examined as to credit, and particular reliance was placed by counsel for the defendant on video surveillance tapes of the plaintiff. There was brief film of the plaintiff on 30 April 2001, taking washing down from a clothesline at her then home at Ngunnawal. There was more extensive film of her on 21 March 2003, at another home at Ngunnawal to which the family had moved, showing her hanging wet washing on a clothesline, and at the same time talking on a cordless telephone which she held in position between her left ear and left shoulder by maintaining a tilted position of the head. There was then brief film of the plaintiff on 23 May 2003, at the rear of a removalist van, and extensive film of the plaintiff on 3 June 2003 in Canberra, where she had travelled from Brisbane to see Dr Le Leu and Dr Andrews in accordance with arrangements made by the solicitors for the defendant.

18. Dr Andrews and Dr Le Leu were shown the video material subsequent to their written reports but before giving oral evidence. Dr Andrews' evidence was that the video was not consistent with what he had accepted as the plaintiff's level of disability, based upon her presentation in his surgery. The video showed her to have a good range of neck movement, whilst she had presented as moderately restricted. Dr Andrews had formed the opinion at the time of his examination that the plaintiff might have been doing better than she claimed. He did not find much abnormality, and thought her level of disability was not great. He thought that she probably had some cervical facet joint strain, but that she amplified, embellished or over-emphasised her symptoms. He thought that the most probable outcome was that her condition would resolve, though he could not be absolutely certain. He acknowledged that in such matters, a doctor is reliant on the veracity of the patient.

19. Dr Le Leu gave evidence to similar effect. He observed a significant degree of difference in neck movement between the physical presentation in his surgery and the video film of the same day. He noted on the film free movement of the neck to the right. The plaintiff's use of her neck to hold her mobile phone was in his view inconsistent with significant neck pain. The plaintiff was seen to hold her telephone in place for an extended period, something which would have caused considerable discomfort even in a normal person. Her movements were fluent, consistently with an uninjured person. The video evidence threw into question his whole examination and the impression he formed of the plaintiff. After seeing the video, he thought that the plaintiff had little if any disability, and would be fit to work in light or medium work without restriction. He would normally expect a whiplash injury to resolve within eighteen months to two years, and he formed the opinion, from the plaintiff's presentation on video, that her injury had resolved.

20. The plaintiff herself accepted that an objective observer would think, from looking at the film, that she had no disability whatsoever. She accepted that her presentation on the film was quite different to her presentation on examination by Dr Le Leu and Dr Andrews, though she did not concede that she had made a deliberate attempt to mislead the doctors or the Court for the purpose of maximising her claim.

21. She conceded, in addition, that her earlier evidence that she had not hung out or brought in washing until her husband lowered the level of the clothesline to her eye level was untrue, though not deliberately so.

22. I am not satisfied that the doctors would have arrived at the conclusion they did, if they had seen only the video film taken in April 2001. That piece of film is short and does not show the plaintiff engaged in strenuous activity. It would be unsafe for me, on the basis of the evidence of the doctors, to assume that their altered opinion was based to any degree on the April 2001 film. I am, on the other hand, satisfied that the film taken in March, May and June 2003 is inconsistent with the plaintiff's presentation in court as well as her presentation to Dr Andrews and Dr Le Leu in June 2003. I am persuaded by the film that probably by March and certainly by June 2003, the plaintiff had recovered to the extent where she had no restriction of movement in the neck, shoulders, or back. I cannot be satisfied that by then, the plaintiff any longer suffered from any disability caused by the motor accident.

23. At the same time, I am satisfied that the plaintiff suffered the injuries of which she initially complained to Dr Watson. I think it likely that her condition gradually improved following the accident, and that she had probably largely recovered by the end of 2002, and completely recovered by the middle of 2003, from her physical injuries. Her phobia may persist for somewhat longer. Her last pregnancy would, I think, have kept her out of the workforce regardless of the motor accident until her daughter was about six months old - that is, until about the beginning of March 2003. By then, on my findings, any physical constraints to the plaintiff resuming work would have been unrelated to the motor accident.

24. At the same time, I do not think that the plaintiff would have recovered sufficiently to have got back to her pre-accident work prior to the time when her pregnancy would have precluded her from working in any event - probably by mid-2002. I therefore find the defendant responsible for her impaired earning capacity up to the middle of 2002. Thereafter, she would have been on unpaid maternity leave until, on my findings, she was fit to return to full-time employment. Accordingly I propose to calculate her past loss of earnings from the date of the accident up to 30 June 2002. I am satisfied that the approach adopted by the plaintiff's solicitors in the past wage loss schedule in annexure `B' to the amended statement of particulars is generally appropriate, but I allow only 28 weeks from 14 December 2001 to 30 June 2002 at $499.00 per week, rather than the 81 weeks claimed. On my calculations, this gives rise to a total for past wage loss of $38,378.63.

25. This sum attracts interest at the deemed commercial rates, fixed by Practice Direction 2 of 2001, that is 10% up to 30 April 2001 and 9% from 1 May 2001. The amount allowed for interest must reflect the fact that the loss was suffered on a continuing basis from the date of the accident until mid-2002, after which date interest on the total amount is recoverable. It is clear from the evidence that the plaintiff received workers' compensation during the whole of the period for which I have allowed damages for past loss of earnings, with the exception of some short periods where she earned income, as set out in the schedule I have referred to. The evidence does not enable me to calculate with precision the amount of periodical payments received by the plaintiff during the period. I must do my best to assess it on the limited information available to me. I find that the difference between the allowance for past loss of earnings and the net compensation received is $10,000 and I allow interest of $2,500 on that sum.

26. There was agreement between counsel that the tax paid by the plaintiff on her workers' compensation benefits was $2,791.00, but counsel for the defendant did not concede that this amount should be allowed in full. His submission was that I should allow a closed period for past loss of earnings, and that if the plaintiff continued to receive periodical payments from the workers' compensation insurer after the close of the period, the defendant should be liable for an amount equal to the tax on the compensation only in respect of the closed period.

27. The decision of the High Court of Australia with which this principle is identified, Fox v Wood [1981] HCA 41; (1981) 148 CLR 438, did not deal with the issue which arises where damages for past loss of earnings are awarded in respect of a shorter period than that for which the plaintiff has received workers' compensation benefits. I have been unable to find an authority directly on point, but it seems to me as a matter of common sense that it cannot be fair to require the defendant to pay damages pursuant to the principle, in respect of a period when the plaintiff was not incapacitated for employment. The evidence does not enable me to calculate with precision the tax deducted by the insurer for the period up to 30 June 2002. I propose to allow $2,000.

28. This brings me to treatment and other out-of-pocket expenses. The evidence was that up to 1 July 2003, the workers'compensation insurer had made the following payments to the plaintiff and on her behalf:

Belconnen Chiropractic $ 6,469.40

Calvary Public Hospital $ 303.30

Canberra Imaging Group $ 1,699.00

Canberra Injury Management Centre $ 255.90

CRS Australia $10,271.14

Gungahlin Medical Centre

(Dr Tim Watson) $ 4,292.70

Sportscare Physiotherapy $ 98.00

Drs. Sutton & Williams $ 474.00

Chemist $ 259.70

Travelling Reimbursement $ 1,160.53

$25,283.67

29. Counsel for the defendant conceded that the expenditure had been incurred, and related to treatment and other expenditure provided to the plaintiff or on her behalf, and further conceded that the amounts involved were fair and reasonable. However, there was no concession that the expenditure was causally related to the injuries sustained by the plaintiff in the motor accident. Treatment and other expenses should, it was submitted, be allowed only in respect of a closed period, until the plaintiff had recovered from the effects of the injuries. I accept the latter submission. Regrettably the evidence does not include the dates of the services charged for. The plaintiff is entitled to recover the expenses incurred up to 30 June 2002, but not thereafter.

30. It does not seem to me that the CRS Australia expenditure should be recoverable by the insurer from the plaintiff, or allowed as part of her damages. This was not expense incurred in relation to the plaintiff's treatment, but rather expense incurred by the insurer in assessing the extent of its liability and endeavouring to get the plaintiff back to work, thereby reducing its continuing expenditure in relation to the claim. It should be borne by the insurer as part of its expenses of administering the claim.

31. Otherwise, the expenses claimed cover a period of something over three years after the accident. On my findings, the plaintiff is entitled to recover her expenses for a little over two years. Allowing for the fact that more expenditure was probably incurred in the period immediately after the accident, and that in the last year the expenditure was probably reducing, it seems to me that a reasonable figure to allow to compensate the plaintiff for past treatment and travelling expenses is $12,000.00. Because all of this amount was paid by the workers' compensation insurer, I make no additional allowance for interest.

32. It seems to me that a reasonable figure to compensate the plaintiff for pain and suffering and loss of enjoyment of life for the closed period of something over two years, and to take account of the fact that the plaintiff probably suffered some facet joint strain in the cervical vertebrae as explained by Dr Andrews, which may leave her with increased vulnerability to future trauma, is $25,000.00. I apportion $20,000.00 of this to the past and $5,000.00 to the future. The past component attracts interest for which I allow $2,000.00.

33. The plaintiff makes a claim for loss of superannuation benefits, calculated by reference to her past loss of earnings. The figures and method of calculation set out in annexure `C' to the amended statement of particulars were not challenged by the defendant, although the assumptions upon which the calculations were based were strongly in issue. I allow $3,500.00 for loss of superannuation benefits.

34. The plaintiff also claims damages for the notional value of gratuitous services provided by her husband and her parents. The parties agreed that $15.00 per hour would be an appropriate rate to apply, in respect of any period in which I found a need for such services. I am satisfied that the plaintiff had such a need, which was satisfied by additional tasks undertaken by her parents and husband. The need would have been greater in the early days after the accident, diminishing until the time when, as I have found, the plaintiff had recovered in mid-2002. I think it appropriate to adopt an average of something under one hour per day over the whole period, and I allow $10,000.00. This sum attracts interest at commercial rates, which I calculate at $2,500.00.

35. I have made a small allowance for the plaintiff's increased vulnerability in the future, in assessing general damages for pain and suffering and loss of enjoyment of life. Consistently with that award, it is necessary to make a nominal allowance for the possibility that that vulnerability will be reflected in the need for future treatment and care, and impairment of earning capacity. I take account of the plaintiff's age and the fact that the possibility may become a reality many years in the future, just as it may never do so. To compensate the plaintiff for these possible sources of loss in the future, I allow $2,500.00.

36. The total of the individual components is:

General damages $ 25,000.00

- interest $ 2,000.00

Treatment & travelling expenses $ 12,000.00

Past loss of earnings $ 38,378.63

- interest $ 2,500.00

Fox v Wood $ 2,000.00

Superannuation $ 3,500.00

Griffiths v Kerkemeyer $ 10,000.00

- interest $ 2,500.00

Future treatment & loss of earning capacity $ 2,500.00

$100,378.63

37. The total so arrived at is on consideration proportionate to the losses suffered by the plaintiff as a result of the motor accident. There will be judgment for the plaintiff in the sum of $100,378.63. I shall hear the parties as to costs and any other consequential orders.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

Associate:

Date: 10 February 2004

Counsel for the plaintiff : Mr C.P. McKeown

Solicitors for the plaintiff : Bradley Allen

Counsel for the defendant : Mr D.M. Wilson

Solicitors for the defendant : Phillips Fox

Date of hearing : 8,9,10 July 2003

Date of decision : 10 February 2004