Dennis v Australian Capital Territory [2005] ACTSC 118 (16 November 2005)

Last Updated: 30 November 2005

CHERYL MARIE DENNIS v AUSTRALIAN CAPITAL TERRITORY

[2005] ACTSC 118 (16 November 2005)

EX TEMPORE JUDGMENT

DAMAGES - personal injury - motor vehicle rear-end collision - whiplash injury to neck, shoulder and low back - no issue of principle.

No. SC 332 of 2000

Judge: Master Harper

Supreme Court of the ACT

Date: 16 November 2005

IN THE SUPREME COURT OF THE )

) No. SC 332 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CHERYL MARIE DENNIS

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Master Harper

Date: 16 November 2005

Place: Canberra

THE COURT ORDERS THAT:

1. Judgement be entered for the plaintiff in the sum of $264,600.

2. The defendant pay the plaintiff's costs.

1. The plaintiff's claim is one for damages for personal injuries arising out of a motor accident which occurred on 26 July 1994 at the intersection of Chewings Street and Belconnen Way, Page when the plaintiff was a front seat passenger in a Holden Barina, being driven by a friend and work colleague who was driving her to work. The Barina stopped at the intersection of Belconnen Way and was struck from behind by a vehicle owned by the Territory and driven by a Territory employee. There is no issue that the collision was entirely due to the negligence of the driver of the Territory vehicle.

2. The collision was described by the plaintiff in her evidence as a relatively minor impact and it is so described elsewhere in the evidence, with the exception of a history recorded by one of the doctors which I can only take reflected some misunderstanding on the part of the doctor as to its severity. It appears from the photographs of the damaged Barina car that the impact was to the middle of the rear bumper bar, if that is the appropriate term to describe the part of the car which was struck and damaged. The damage appears from the photographs to me, as a person having no expertise in matters of that nature, to have been relatively minor.

3. The plaintiff was born on 22 March 1957 and was 37 at the date of the accident. She is now 48. She grew up and went to school in Canberra and left school after Year 10. She has no tertiary qualifications but has worked as a public servant with the Department of Defence since 1981, that is for more than 24 years. She has been married twice. She first married at about 20 and was divorced after 10 years and has one daughter from that marriage. She married again in 1988 and separated from her second husband in December 1999. She now lives in a relationship with a Mr Lance Hickey and has lived with him since early 2004. Her daughter now aged 22, and her son-in-law live in the same house at Gordon, a Canberra suburb.

4. The plaintiff had had some health problems before the collision. In the middle 1980s she had been treated by Dr Danta, a neurologist, for migraine headaches. Earlier than that she had had problems with her right knee in respect of which she had had four operations including a reconstruction carried out in about 1989 by Dr Stubbs, an orthopaedic surgeon.

5. At the time of the accident, notwithstanding her knee problems, the plaintiff was an A-grade ten-pin bowler, playing competitively, with her home ground, as it were, being the bowling centre at Tuggeranong. It is clear that she was extremely competent, that she played in local and interstate competitions, and that her ten-pin bowling was her major recreational activity and a very important focus of her social life.

6. At the time of the motor vehicle collision the plaintiff was sitting in the passenger front seat of the car, side-on and talking to the driver, wearing her seat belt. She heard the sound of a car skidding. She then heard and felt the impact which pushed the car in which she was travelling forward, apparently a relatively short distance. The plaintiff instinctively threw her hands forward. Both hands struck the dashboard on impact, causing jarring. Immediately after impact she became aware that her right arm was cold and numb. She was aware of pain in the neck immediately and of slight pain in the lower back within a couple of minutes of the impact.

7. She felt shaken up and sick. Someone she knew coincidentally came upon the scene and assisted the plaintiff and her friend and they went on to work. After reporting the accident to her supervisor the plaintiff was advised that she should go and see her general practitioner so that her injuries would be properly recorded. On the same day she saw Dr MacIver, her longstanding general practitioner, at O'Connor. Dr MacIver made some notes of that attendance and provided some written reports to the plaintiff's solicitors which were in evidence. He also gave oral evidence by telephone.

8. Dr MacIver examined the plaintiff on the day of the accident. He took a history consistent with the facts I have just outlined. He found that the plaintiff was tender over the C/2 and C/3 vertebrae in the neck with restricted lateral flexion in both directions. He referred her for an X-ray of the cervical spine and diagnosed a hyperextension injury to the cervical spine.

9. He gave her a medical certificate for time off work and referred her for physiotherapy. He made no note on that first occasion of any complaint of low back pain. The first note of a complaint of low back pain appears in his notes almost a year after the accident, that is on 19 June 1995. He had seen the plaintiff on some six or seven occasions between the first attendance and that June 1995 attendance.

10. The plaintiff's evidence is that she told Dr MacIver about her low back symptoms on the day of the accident and mentioned them from time to time subsequently but that they were very much less severe or significant than her symptoms in the neck and right shoulder. It was submitted on behalf of the defendant that I should not be satisfied that the low back problems were caused by the impact of the motor vehicle accident. However, as I put to counsel during address, I formed the provisional view that the plaintiff was being truthful in her evidence about that. In the absence of any evidence of any other incident that might have caused the development of low back pain during that 11-month period before it was first recorded by Dr MacIver in his notes, I was provisionally inclined to the view that the low back pain was caused by the motor vehicle collision, but that the pain was far less significant than the neck and shoulder symptoms and may have been masked to a degree by those symptoms. I maintain that view. I am satisfied on the balance of probabilities that the plaintiff did suffer an injury to her low back in the motor accident but that it was a relatively minor one and that her low back symptoms generally have been relatively insignificant in the history of her symptoms and conditions.

11. The plaintiff saw Dr MacIver from the middle of 1995 on relatively few occasions, perhaps a dozen, through until the end of 1999. It is clear from Dr MacIver's notes and from his evidence that a number of those attendances were completely unrelated to the plaintiff's motor vehicle injuries, and that on other occasions she had arranged the consultation because of something more significant but might have mentioned something about her motor vehicle symptoms in the course of the consultation.

12. I am satisfied that during that period the plaintiff was able to control her symptoms generally speaking with medication which she was able to buy at the chemist without prescription and which she took from time to time for relief of pain and inflammation. I am satisfied that during that period she continued to suffer from fluctuating pain in the neck and right shoulder, they being her major symptoms, and that whilst she continued to suffer from pain in those areas from time to time, she was able to continue generally with her normal life, going to work and continuing with her ten-pin bowling, with the assistance of that medication.

13. She had occasion to see Dr Danta again in mid-1995 when it appears that she had a recurrence of her pre-accident migraine headaches in addition to the neck symptoms of which she had complained to Dr MacIver. Dr Danta investigated her at that time. Whilst it is not entirely clear from his report, and he did not give oral evidence, it appears that she may have had some headache symptoms related to her neck injury which he thought should be controlled by Inderal, a drug which he had previously prescribed in relation to her migraine headaches.

14. Otherwise the plaintiff sought, it seems, no treatment other than from Dr MacIver, the general practitioner, during the period I have mentioned, although I should say that she had in the early period from the accident through to about mid-September 1994 had a course of physiotherapy treatment, going some 12 or 15 times to physiotherapist, Ms Jennifer Kellet, over that period. It does not appear that she required further physiotherapy after September 1994.

15. In late 1999 the plaintiff went to Adelaide for the National Ten-pin Bowling Championships and at those championships she was introduced to someone who was described in evidence as the Australian team physiotherapist, although she does not appear to have formal qualifications in physiotherapy. Xiao Lu Li carries on a practice at Flynn in Canberra as an acupuncturist and has a degree in sports medicine and a fellowship of a body concerned with acupuncture.

16. Ms Li conducted an examination of the plaintiff and took a history from her, and told her that she required or would benefit from a course of treatment, including acupuncture and what was described as muscular treatment. She advised the plaintiff that unless she underwent treatment of that kind it was likely that her continuing symptoms would deteriorate over time.

17. The plaintiff on her return to Canberra discussed this with Dr MacIver who formally referred the plaintiff to Ms Li, from which time, commencing in about August 2000, Ms Li commenced treatment of the plaintiff with regular sessions of acupuncture and muscular treatment, including some massage and traction and the use of an electrical deep soft tissue vibrator. The plaintiff found that she obtained considerable relief of symptoms from this course of treatment.

18. Due to Ms Li's practising hours, which coincided with the plaintiff's working day, it was necessary for the plaintiff to take time off work to attend Ms Li's rooms. The plaintiff has never driven a car and needed to get from her place of work at the Defence Department at Russell to Ms Li's rooms at Flynn by public transport. This involved three buses each way. Somewhat regrettably this must have included a great deal of travelling time for the sessions which were something of the order of 45 minutes to an hour each, requiring the plaintiff to take half a day off work on the two afternoons when she saw Ms Li.

19. A significant factor in the plaintiff's being able to afford this treatment was the fact that the motor vehicle accident had occurred on her way to work in circumstances where she was entitled to Comcare benefits as a Commonwealth employee. Comcare has met all or almost all of her treatment expenses and has paid her compensation in respect of all of the periods that she has had off work since the accident. It seems that, fortified by Dr MacIver's certificate, Comcare was satisfied that Ms Li's treatment was reasonable and necessary and was sufficiently causally connected to the injuries the plaintiff had suffered in the motor accident. The plaintiff is continuing with that pattern to this day, five years after she commenced treatment with Ms Li, of working full-time as a public servant with the Defence Department but taking off two afternoons a week on workers' compensation to attend Ms Li's rooms for treatment.

20. Counsel for the defendant urged me not to find or not to be satisfied that there was a causal connection between the injuries suffered by the plaintiff in the motor accident and the treatment by Ms Li either now or when it commenced five years ago. However, having already said that I am satisfied that the plaintiff had continued up to 1999 with neck and right shoulder symptoms which were accident-related, it seems to me that the initial referral for treatment and the initial treatment had the requisite causal connection with the original injuries. I accept the plaintiff's evidence that those symptoms have continued since and that they continue to be relieved by the treatment which she is receiving.

21. There is a significant amount of medical evidence in the form of reports from both sides from specialists who have seen the plaintiff for the purpose of this case. One who I should mention as having treated her, and I have not previously mentioned, was Dr Garth Eaton, occupational physician, who, although he has provided a report which is in evidence, in fact saw the plaintiff initially on referral from Dr MacIver. He saw the plaintiff on two occasions, in July 2001 and October 2002.

22. Whilst he appears perhaps less attracted to the treatment being provided by Ms Li and would favour a cognitive behavioural pain management program for the plaintiff, he nevertheless accepted the plaintiff's complaints as to her symptoms and expressed the view that on the balance of probabilities, accepting the information the plaintiff had provided to him, a significant component of her condition when he saw her was both directly and consequentially a result of the motor vehicle accident. He thought that her prognosis was guarded and he noted that she had tried to continue her daily life as normally as possible. He thought it possible that her condition could deteriorate and that her ability to cope might be further compromised in the future.

23. The doctors who have seen the plaintiff for medico-legal reasons commence with the late Dr Robert Scott, who saw her in February 2001. Dr Scott was also an occupational physician and he generally accepted the plaintiff and expressed the opinion that her condition was more likely than not related to the 1994 motor vehicle accident.

24. Dr Ron Brooder, a consultant neurologist, saw the plaintiff at the request of her solicitors on two occasions, in November 2003 and February 2005, and he also formed the view that her condition was more likely than not related to the motor vehicle accident. He thought that her long-term prognosis was somewhat guarded, that her treatment with Ms Li was appropriate, and that it would be reasonable to predict that that treatment would continue for a period of ten years.

25. The defendant's solicitors referred the plaintiff to four specialists.

Dr Anthony Cairns, orthopaedic surgeon, saw her in December 2001, at which time he thought it likely that her injuries and disabilities had been caused by the accident. He thought that they had stabilised and that her then condition was permanent. He seemed less attracted to the acupuncture treatment and favoured referral of the plaintiff to a multi-disciplinary spinal rehabilitation and pain management facility and a remedial exercise facility.

26. She was seen on behalf of the defendant by Dr Derrick Billett, an orthopaedic surgeon, in November 2002. Dr Billett is alone among all of the medical practitioners who have seen the plaintiff, either in a treating capacity or a medico-legal capacity, in having arrived at the view that the plaintiff, whilst she had suffered a soft tissue injury to the neck, shoulders and lower lumbar region, had recovered completely from the effects of those injuries. While he accepted her complaints of continuing symptoms, he attributed those symptoms to underlying pre-existing constitutional, age-related, degenerative changes.

27. Dr Billett did not give oral evidence. Whilst I suspect that his view may reflect a medical approach to causation rather than a legal one, it is enough for me to say for the purposes of the case that as his opinion is so much at odds with the opinion of other doctors who have treated the plaintiff and seen her for her own solicitors and for the defendant's solicitors, that I do not accept his expression of opinion as to the complete resolution of the plaintiff's injuries by the time he saw her in November 2002. I prefer the opinion of those other specialists who accept that her continuing symptoms are accident-related.

28. The plaintiff was referred in November 2003 to Dr Dwight Dowda, a consultant occupational physician in Sydney, who prepared a very lengthy report. Dr Dowda, whilst not disbelieving the plaintiff's complaints of an increase in symptoms from May 1999 after a long period in which she had required little or no treatment, could not find a logical explanation for that increase in symptoms. He speculated that perhaps there were psychological or psychiatric issues present, possibly in the form of somatization, which might have played a part in the increase of symptoms from 1999 onwards. He suggested that the plaintiff be referred to a psychiatrist to assess whether some psycho-social factors of that kind might be present.

29. The recommendation was accepted by the defendant's solicitors. They sent the plaintiff to Dr John Saboisky, a consultant psychiatrist, in September 2004. Dr Saboisky had the plaintiff complete an illness behaviour questionnaire. He concluded from the results that there was no evidence of hypochondria or of conscious or unconscious exaggeration or of affective disorder. In brief, he said, there was no obvious abnormal illness behaviour. He did not believe that the plaintiff had a psychiatric disorder which explained her complaints of pain.

30. Perhaps unfortunately, Dr Saboisky's report was not referred to

Dr Dowda for the latter to consider further the question of an explanation for the increase in the plaintiff's symptoms from the end of 1999. I accept Dr Saboisky's uncontested psychiatric opinion. As to Dr Dowda I am left in the position that I am not satisfied of any medical explanation for the fact that the plaintiff's symptoms increased in 1999 after a period of more than four years during which they had been controlled with medication but little medical treatment. Having said that, I am satisfied that the symptoms are genuine and that they have their origin in causative terms in the motor vehicle collision of 1994. That being so, it is not part of my task to attempt to solve the mystery posited by Dr Dowda. In those circumstances the plaintiff is entitled to damages which include the expenses for her treatment with Ms Li and her lost earnings associated with the need to take time off work to see Ms Li.

31. The defendant's evidence included almost an hour of videotape showing the plaintiff walking around the Tuggeranong Hyperdome and bowling at the Tuggeranong Bowling Centre. The film showed nothing inconsistent with the plaintiff's evidence, and counsel for the defendant did not refer to it in his closing address.

32. Both the plaintiff and her partner, Mr Hickey, gave evidence that there have been over the years, and there still are, a number of tasks around the house which the plaintiff cannot do or can do only with difficulty and with which she requires assistance, principally because of difficulties with reaching above her head with her dominant right hand because of her neck and shoulder problems. These include vacuuming, putting out the garbage, washing up, and taking out and bringing in the washing from the clothesline. It was not contested in address by counsel that if I were to find the causal connection which I have found between the motor accident and the plaintiff's present symptoms that a claim for domestic assistance was justified for about three hours a week, at the rate which I customarily allow in the absence of any evidence of $17 an hour.

33. In relation to general damages I take account of the fact that the plaintiff continues to have symptoms sufficient to interfere with her home duties and with her recreation of choice, ten-pin bowling. Whilst she can continue to work and she can continue to play ten-pin bowling as a sport, and indeed a competitive sport, she has cut back from playing five times a week or more to presently two evenings a week. She is restricted in her manner of bowling. Her average score has come down significantly. She is playing her competition bowls at a much lower level than she was before the accident. In other words, we are not looking here at injuries and disabilities which are at the worst end of the spectrum, although we are looking at someone whose enjoyment of life has been significantly interfered with and at symptoms which have continued for eleven years and on the medical evidence are likely to continue permanently at that level. It seems to me that an appropriate award of general damages is $55,000 which I would apportion equally between the period from the accident to date and the future.

34. The past component attracts interest at the lower rate applicable to general damages rather than the commercial rate. I would weight that past component of the general damages somewhat more heavily to the period immediately after the accident and the first year than to the period since then. I assess that interest at $7,000.

35. Regarding treatment expenses and travel expenses, I take account of the amount paid by Comcare and the amount paid by Medicare both of which the plaintiff will be required to refund out of her damages. I also take account of the plaintiff's cost of travelling to and from Flynn for her appointments with Ms Li. I note that the figures in evidence take us to about three weeks before the hearing. There will have been some additional expense for those last three weeks. I round past out-of-pocket expenses at $47,000. No interest is claimed or is allowable on that figure because it has virtually all been paid on the plaintiff's behalf.

36. For future treatment expenses I base the allowance on the treatment expenses averaged over the last 26 weeks of $140.50 per week plus chemist expenses of about $6 a week and travelling expenses of about $8 a week, that being a total of $154.50 a week. I accept the evidence that that should be allowed for a period of ten years or just on ten years into the future. The multiplier for ten years is 451.8 and I reduce the resulting figure by the conventional 15% to take account of the vicissitudes of life. I round that figure to $60,000 which I allow for future out-of-pocket expenses.

37. By way of loss of earnings I note the gross figure paid by Comcare to date. I note that the figure in evidence is calculated up to a date about seven weeks ago, so I add on a figure to cover the last seven weeks at $90.67 per week. I round that total to $28,600 which I allow for past loss of earnings.

38. By way of future loss of earnings, I adopt the figure which was put by counsel for the plaintiff in address and not seriously disputed by counsel for the defendant of $70 a week for ten years, using that same multiplier and reducing the total by 15% for vicissitudes. I round the resulting figure to $27,000.

39. For the past Griffiths v Kerkemeyer component, as I have already said, 3 hours a week at $17 an hour, claimed for a period of 6 years, I allow $16,000. The past Griffiths v Kerkemeyer component attracts interest at commercial rates which I calculate at $4,000. I make an allowance for the future Griffiths v Kerkemeyer component for a period of ten years using the multiplier I have mentioned previously and reducing it for vicissitudes. I allow $20,000.

40. The total of those components is as follows:

General Damages:	$55,000
Interest thereon	$7,000
Treatment Expenses:
Past	$47,000
Future	$60,000
Economic Loss:
Past	$28,600
Future	$27,000
Griffiths v Kerkemeyer:
Past	$16,000
Interest thereon	$4,000
Future	$20,000
	$264,600

41. There will be judgment for the plaintiff for $264,600. I order that the defendant pay the plaintiff's costs.

I certify that the preceding forty-one (41) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 23 November 2005

Counsel for the plaintiff: Mr R J Mildren

Solicitor for the plaintiff: Hill & Rummery

Counsel for the defendant: Mr S H Pilkinton

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 14, 15 November 2005

Date of judgment: 16 November 2005