Fischetti v The Nominal Defendant & Anor [2004] ACTSC 72 (25 August 2004)

Last Updated: 16 September 2004

FISCHETTI v THE NOMINAL DEFENDANT & ANOR

[2004] ACTSC 72 (25 August 2004)

NEGLIGENCE - personal injury - motor vehicle accidents - aggravation of underlying disabilities - inconsistent evidence - damages

No. SC 166 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 25 August 2004

IN THE SUPREME COURT OF THE )

) No. SC 166 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CATHERINA FISCHETTI

Plaintiff

AND: THE NOMINAL DEFENDANT

First Defendant

AND: RICHARD COOK

Second Defendant

ORDER

Judge: Higgins CJ

Date: 25 August 2004

Place: Canberra

THE COURT ORDERS THAT:

1. There will be a verdict in favour of the plaintiff against the first defendant in the sum of $32,600.

2. There be a verdict in favour of the second defendant against the plaintiff.

1. This matter involves two motor vehicle accidents in which the plaintiff was involved, firstly, on 27 September 2000 and, secondly, on 10 November 2001. Liability was admitted in respect of the first accident, but not the second.

2. The first accident occurred, the plaintiff said, when she was executing a right hand turn out of Ellenborough Street (Lyneham ACT). She was hit from the left by another vehicle. Her vehicle was turned around. She stayed in her car for a time but no one came. She got out and looked about. There were no other vehicles about. After about 15 minutes during which she was "in shock" and "crying", two persons did come to her aid.

3. They advised her to report the accident to police. She did so. By then, she said, she was not in pain but was "bruised". She described bruising to her arms and legs.

4. After about two weeks she went out shopping with her sister and experienced pain in her lower back, extending down her legs. She attended her local General Practitioner, Dr Meiklejohn.

5. An x-ray of her back was taken but, according to Dr Meiklejohn revealed no problem.

6. The plaintiff sought a second opinion from Dr Kate McCallum of Giralang who referred her to Dr Gytis Danta, a specialist neurologist. She had block injections. The first helped but not the second. She was placed on painkillers, mersyndol forte and diazepam. However, she had already been prescribed diazepam and mersyndol forte, the latter for migraine. She stated that since the accident her usage of those drugs had (approximately) doubled.

7. She had pain in the back and down the right leg.

8. The second accident, on 10 November 2001, the plaintiff said, occurred at about 6.00 pm on that day. She was driving along Mouat Street, Lyneham. A vehicle, then being driven by the defendant, came out of Archibald Street, a street on her right, went through the "give way" sign controlling entry into Mouat Street in front of her. She applied her brakes, she said, but hit the rear of that vehicle. Both vehicles continued on. The plaintiff sounded her horn and, eventually, the defendant stopped after having turned into Brigalow Street. The defendant spoke with her. He told her that it was her fault that contact between their vehicles had occurred.

9. As a result of that contact, the plaintiff said, she struck her head on the steering wheel. She conceded, in her evidence in chief, that she had not been wearing a seat belt.

10. At the time of the first accident, the plaintiff said, she had not engaged in gainful employment for eight years. Before then, she had worked for four years as a cleaner and then for two years assisting her sister in a shop owned by the latter, apparently on a voluntary basis.

11. The plaintiff's account of her experiences tended to be somewhat confused. On the one hand she explained that for the week prior to the first accident she had been off work for a week due to migraines but then said that had occurred in 1994 and after that her migraines cleared up following treatment.

12. She was, she asserted, seeking work as at September 2000, though she was unable to detail any particular efforts she had made so to do. After the accident she did not make any effort to find work, she said, because of the pain in her lower back and right leg.

13. That pain had, she said, curtailed her performance of household duties as well. Even personal grooming was slower and more painful.

14. The only ongoing treatment was the consumption of mersyndol forte and diazepam.

15. In cross-examination, the plaintiff agreed that she had consciously decided, before the second accident, not to wear her seatbelt.

16. She also conceded that she had, before the first accident, aided her sister in altering one of her prescriptions so as to enable her sister to obtain drugs not prescribed for her.

17. She had, she agreed, complained of back pain and limping three years before the first accident, related, it seems, to muscle pain in both legs. She had been treated by Dr Colin Andrews, neurologist, for that disability prior to 1999. She had back pain also but described it as then being mid back, radiating down into her legs. She experienced those disabilities, it seems, in August 1999.

18. There was also treatment sought from Dr Duncan, apparently for her leg pain.

19. She also had experienced neck pain in July 1995 and conceded that she had been in error when she denied suffering neck pain before the first accident.

20. The plaintiff also revealed that she had been on a disability pension by reason of a psychiatric condition since 1994.

21. The low back pain, it appeared, had not become apparent until about 17 March 2001, according to the medical notes kept by the plaintiff's general practitioner.

22. She had thereafter been advised to undergo a pain management course but had failed to follow that advice.

23. So far as the second accident was concerned, the plaintiff agreed that the collision was "a very slight bump". It caused $700 damage to her motor vehicle. She had not sought to claim that sum from the second defendant.

24. Counsel for the defendants in cross-examination, suggested to the plaintiff that the impact forming the essence of the second accident had not occurred until 50 metres past the intersection of Mouat Street with Archibald Street. The plaintiff's response, not merely once, but twice, was to agree with that proposition.

25. The plaintiff called no other evidence except for the tender of medical reports and records. Out of pocket expenses were agreed, as a matter of calculation, at $12,301.23.

26. Whilst she gave evidence of lower back pain and neck pain following the first accident, she complained of no ongoing symptoms following the second. There were some contradictory statements on that subject in Dr McCallum's notes.

27. The plaintiff's medical reports were not helpful to her case. The recorded histories contained numerous inconsistencies.

28. Dr Gytis Danta, neurologist, on 5 August 2002, reported that the plaintiff had complained of headaches preceding the accidents, recurring about twice weekly and being treated by mersyndol. He was not able to comment on her psychiatric disability.

29. The first accident was recorded in terms that, when her vehicle was hit on its left side "The car spun and then tipped over on its side". There is no evidence that the car "tipped over".

30. She complained of no symptoms following the accident. Dr Danta reported:

... until 2 - 3 weeks afterwards when headaches started as well as pain in the neck, back and pain radiating down the back of the leg from the buttock to the calf ....

31. The plaintiff conceded, in her evidence, that no such symptoms commenced until about March 2001.

32. The second accident, the date of which Dr Danta records as "25 February 2001" not "10 November 2001", is described in the following terms:

She was driving and hit a car at an intersection. Her right forehead hit the steering wheel and she sustained a bruise there. She told me that none of her previous symptoms were aggravated by this accident.

33. That account is consistent with the plaintiff's evidence, though 50 metres beyond the intersection in question could not be regarded as being "at" it.

34. Dr Kate McCallum, successor as the plaintiff's general practitioner to Dr Meiklejohn, submitted a report dated 5 March 2003, presumably after consulting her notes. The account of the first accident as she reported it, was that:

...She (the plaintiff) stated that a car had hit her in the right side.

35. The plaintiff's evidence was of a left side impact. So also was Dr Danta's recorded history.

36. There was, Dr McCallum recorded, tenderness over the right side of the plaintiff's neck and shoulder. At a review on 30 November 2000 the plaintiff "claimed she had developed lower back pain as well". It suddenly worsened, Dr McCallum noted on 22 March 2001, so that the plaintiff was immobilised by it. The plaintiff did not give evidence supporting that earlier development of lower back pain.

37. The second motor vehicle accident, according to Dr McCallum, also injured the plaintiff's right leg. The plaintiff reported increased pain in her lower back and neck and worsening headaches and anxiety with depression. That was not supported, either, by the plaintiff's evidence.

38. Indeed, this depiction of the consequences of the second accident, as recorded by Dr McCallum, is directly contrary to the plaintiff's evidence. I have no reason to doubt Dr McCallum's recording of complaints made to her but I am left in considerable doubt as to whether those complaints themselves were real or imaginary.

39. The defendants tendered three medico-legal reports. Dr Billett, orthopaedic surgeon, considered the accidents had merely aggravated temporarily underlying disabilities. He did not attempt to differentiate between the effect of the first and second accidents.

40. Dr Jackson, another orthopaedic surgeon, noted that the history Dr McCallum had recorded was not consistent with the history he was given by the plaintiff. However, that stated history was less favourable to the plaintiff's case than that contemporaneously noted by Dr McCallum. The plaintiff told Dr Jackson that lower back pain did not emerge until two months after the accident.

41. Dr Jackson was satisfied that the plaintiff had, as at 27 May 2002, a disc prolapse but could not attribute this to the motor vehicle accidents. Interestingly, the plaintiff is reported to have said she was wearing a seat belt in both accidents. In her evidence she was adamant that she had not been wearing a seat belt in the second accident.

42. Dr John Saboisky, a psychiatrist, offered a report dated 10 November 2003. To him, the plaintiff was reported to have stated that back pain came on two weeks after the first accident. He could find only a mild residual anxiety. That history was inconsistent with that given not only to Dr Billett but also Dr McCallum.

43. It will be apparent that the plaintiff's account of her history was somewhat inconsistent. However, this seems to me to stem from genuine confusion rather than any attempt at deception. This is obvious from the fact that several of the inconsistencies are obviously contrary to her personal interests.

44. The second defendant was called to give an account of the second accident. He said he had made a right hand turn from Archibald Street into Mouat Street and then was hit from behind. That occurred "about 50 metres after I turned right". He did not stop, however, until after he had turned right into Brigalow Street and then in response to the plaintiff flashing her lights. There was no damage to his vehicle and slight damage, apparently inflicted by his tow bar, to the plaintiff's vehicle.

45. This account of the accident was, in fact, consistent with the plaintiff's evidence. It is apparent that the collision, such as it was, occurred after the second defendant had negotiated the right turn from Archibald Street into Mouat Street. It may be that the plaintiff was slow to notice that the second defendant's vehicle was travelling more slowly than hers. I do not, however, find that the second defendant turned so suddenly in front of the plaintiff's vehicle as to cause a collision.

46. It follows that the plaintiff has not proved that the second collision was caused by the negligence of the second defendant.

47. In any event, the only injury suffered by the plaintiff seems to have been minor bruising to the forehead. It is possible she bumped her knee but she did not give evidence of that. The injury was minimal and, in any event, was the result of her own fault in not wearing a seat belt.

48. Liability was conceded in relation to the first accident.

49. However, the degree of injury and disability arising from it is less than clear. Nevertheless, I am satisfied that some aggravation of pre-existing disabilities did occur. It has led to some increase in the taking of medication. I consider that result largely to be due to exacerbation of the plaintiff's underlying psychological condition. I do not consider that there is any diminution of the plaintiff's working capacity. She had been on a disability pension before the first accident and has remained on it since.

50. I would award $25,000 for general damages. I attribute $20,000 to the past, generating, in round figures, $1,600 for interest.

51. So far as out of pocket expenses are concerned I consider that about 50 per cent thereof to be attributable to the plaintiff's pre-existing disabilities. I would allow $6,000 in round figures as attributable to the first accident.

52. There will be a verdict in favour of the plaintiff against the first defendant in the sum of $32,600.

53. I will hear the parties as to costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 25 August 2004

Counsel for the Plaintiff : Mr M Spry

Solicitor for the Plaintiff: Howes Kaye Halpin

Counsel for the First and Second Defendant: Mr P Ryan

Solicitor for the First and Second Defendant: Phillips Fox

Date of hearing: 15 and 16 June 2004

Date of judgment: 25 August 2004