Haley v Graham [2005] ACTSC 60 (19 July 2005)

Last Updated: 26 July 2005

CHRISTINE HALEY v JACQUELINE GRAHAM

[2005] ACTSC 60 (19 July 2005)

DAMAGES - personal injury - whiplash injury to neck and low back - phobic adjustment disorder - no issue of principle.

No. SC 22 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date: 19 July 2005

IN THE SUPREME COURT OF THE )

) No. SC 22 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CHRISTINE HALEY

Plaintiff

AND: JACQUELINE GRAHAM

Defendant

ORDER

Judge: Master Harper

Date: 19 July 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $41,014.72.

1. This matter comes before the Court for the assessment of damages. The plaintiff was the driver of a car struck from behind in a line of traffic in Fairbairn Avenue, Campbell on 26 February 2003.

2. The plaintiff is a 44-year-old married woman with three children. She lives with her husband and family at Calwell. She grew up in Melbourne, and after leaving school spent some eight years serving in the Royal Australian Navy. She married and spent a number of years out of the workforce. She worked for about a year as a swimming instructor, and in 2002 commenced employment as an administrative officer (APS 2) with the Department of Defence (Navy) on contract. She was working in this capacity at the time of the motor accident.

3. She had been involved in three motor vehicle collisions in 1981 and 1982, suffering some injuries. It is not suggested that she had any continuing disabilities from any of these, although the injuries suffered at that time, some twenty years earlier, may have left her more vulnerable to later injury.

4. She had undergone physiotherapy treatment for various symptoms during the period from 1999 until shortly before the motor accident. This is something to which I shall return in more detail.

5. On the morning of the accident, the plaintiff was on her way to work. Her husband, who also worked at the Defence Department, was going to a course in Occupational Health and Safety in Reid. The plaintiff's place of work was at Campbell Park. At about 7.50 am, they stopped in a line of traffic on Fairbairn Avenue because of trucks ahead crossing the road. The speed limit for that section of Fairbairn Avenue was 80 km/h. Mr Jim Graham, driving a vehicle owned by the defendant, was next in line behind them. He took his eyes off the road to turn off his car radio: when he looked up the plaintiff's car was stationary twenty metres in front of him, and he realised that he did not have time to avoid a collision. It seems that he veered right so that the front nearside portion of his car struck the rear offside section of the plaintiff's car. She did not strike the car in front of her, though she was pushed forward, and her car became stationary on the left side of the road. She could not remember precisely how she got there.

6. There was some difference of opinion as to the speed of the defendant's vehicle on impact. The plaintiff's evidence, consistent with the history she gave to various doctors, was that his speed was about 80 km/h. Mr Graham's evidence, which was consistent with what he told the police on the day, was that his speed was 45 km/h. He conceded that he was not looking at his speedometer and had no particular expertise at estimating car speeds.

7. The plaintiff was looking in her rear vision mirror prior to impact and saw the defendant's vehicle approaching. She realised that it was not going to stop in time, and braced herself for impact. She attempted to engage neutral and probably had one hand on the steering wheel and the other on the transmission lever on impact. The front seats of her vehicle went forward and back on impact, after which they were left angled backwards.

8. I do not think that the plaintiff was exaggerating consciously in her estimate of the defendant's speed, but I do not think that she had it under observation long enough for her estimate to be reliable. She was probably influenced by her awareness of the speed limit. Equally, I would not regard the defendant's estimate of his own speed as likely to be particularly accurate. Whilst I am sure the defendant attempted to brake as soon as he realised the danger, I think that he was so close to impact at that time that if he applied his brakes at all prior to impact, they had no practical effect on his impact speed. I accept that the impact was a substantial one. The plaintiff's car, a 1981 Mazda 626 sedan, was treated by its insurer as a total loss. The plaintiff's recollection was that repair costs had been quoted at some $4300, whereas the sum insured was only about $3000. The insurer paid the claim out and retained the salvage, and the plaintiff and her husband bought a new car in due course. After the accident, the damaged car was drivable and they continued to drive it until the insurance claim was finalised.

9. Immediately after the accident the plaintiff was in a state of shock. Symptoms of pain and discomfort emerged as the morning wore on. She was able to drive her husband to his course, and herself to work, but she was unable to continue and later in the morning attended her general practitioner, Dr Patrick Leerdam at Chifley. She complained of soreness in the neck, right shoulder and right hip which had developed since the collision earlier in the morning. Dr Leerdam on physical examination found some tenderness in the right shoulder muscles and also the neck muscles, and vague tenderness in the right hip region. He gave her a certificate for the rest of the week off work, and she returned to work on the following Monday, 29 February. She saw Dr Leerdam again on 11 March 2003, complaining that she had not slept well since the accident, partly because of an ache in the right hip but also because of her emotional reaction to the incident. She reported feeling very anxious about being in a car, especially driving alone.

10. She saw Dr Leerdam again on 24 March 2003. She was tearful and had been feeling depressed and irritable with disturbed sleep.

11. On 27 March 2003 she attended Southside Physiotherapy and Sports Injury Centre where she saw Leslie Betts who had been treating her before the accident. She complained that the accident had caused a flare-up of a previous back problem, and had also caused pain in the neck and right shoulder. Physical examination showed some restriction in neck movement and in posterior rotation of the pelvis on the right side, with associated muscle spasm and pain.

12. The plaintiff was cross-examined at some length about her pre-accident physiotherapy treatment. Records produced by the physiotherapy centre confirmed that she had attended for a single session of treatment in May 1999 for neck pain and stiffness. She had another single session in October 1999 by which time she had improved significantly. She next attended in April 2002 complaining of right low back and buttock pain, aggravated by a recent driving trip to Melbourne. After two treatments she was recorded as pain-free.

13. She had a further attendance in September 2002, having had a recurrence of her problems over the previous two weeks. This treatment session is recorded as having achieved a full range of movement in the pelvis, and she was not seen again at the centre until 10 February 2003. She complained of a return of her previous pain over the last six weeks, worse over the last two weeks, especially after walking a long distance. After that treatment session, she returned on 20 February 2003, six days before the accident. She had improved during the interval, and was advised to come back in two weeks for review if necessary; otherwise she would be assumed to have recovered and would be discharged from that series of treatment sessions. Her next attendance at the centre, as I have mentioned, was on 27 March, when she reported that she had been "good for a week" but had then been involved in the motor accident and her hip had flared up again.

14. There is no evidence that any of the occasions when the plaintiff required physiotherapy treatment prior to the motor accident coincided with periods off work, and this was not suggested to her. I infer that whilst she had problems from time to time over the four years leading up to the motor accident, including symptoms calling for treatment in the two or three weeks before the accident, her problems were not of such severity as to require her to take time off work. I accept that her condition, requiring treatment as recently as six days before the collision, made her more vulnerable than another person might have been to the injuries caused to her in the collision.

15. The plaintiff continued to see Dr Leerdam at monthly intervals until 1 July, after which she did not see him again until 11 December 2003. She continued with a further five physiotherapy treatment sessions, the last being on 24 May 2003. By that time she was continuing to complain of slight neck pain at the end of a days work and occasional low back pain, not preventing her from discharging her normal duties fully, and her prognosis in the view of Ms Betts was that her pelvis would recover fully and remain pain free provided that her supporting muscle system continued to be strong. Pain in the right shoulder and neck might recur after unusual or excessive activity but on the whole it was thought that she would regain full pain-free function.

16. Dr Leerdam diagnosed the plaintiff as having suffered a minor whiplash injury to the neck and right shoulder, which he thought had resolved by September 2003. She had also exacerbated a pre-existing right hip strain which was of ongoing concern, and she continued to suffer from anxiety and stress following the accident. Dr Leerdam thought that her prognosis for full recovery was good.

17. Because the collision occurred on the way to work, the plaintiff was entitled to Comcare benefits. Apart from the period immediately after the accident, she had a week off in late March 2003 on compensation, and other short periods over the ensuing months. Her medical, physiotherapy and chemist bills related to the accident were paid by Comcare.

18. Comcare also referred her to Davidson Trahaire, a national firm of counsellors and organisational psychologists which provides services to the Commonwealth, amongst other things, in rehabilitation of injured employees.

19. The plaintiff and her husband had a consultation with a counsellor or psychologist from that firm in June 2003. In addition to the effects of the motor accident, the counsellor identified a number of other issues in the plaintiff's life, including the fact that her father was suffering from Alzheimer's disease and had been admitted to a nursing home in Melbourne; the fact that her contract with the Defence Department was coming to an end in October of that year; and her guilt in relation to her children arising from the fact that she worked full time. In relation to the car accident, he noted that she found herself crying and angry for no reason from time to time, and suggested that she return for counselling for post-traumatic stress disorder. The plaintiff returned on her own, a week or so later, early in July 2003. She saw the same counsellor. She told him that she was still very anxious when driving in a car with her husband. He suggested a further session to deal with this phobia, possibly using relaxation tapes. He also discussed possible future avenues of employment, and assisted her to complete a curriculum vitae.

20. The plaintiff did not follow this up, and had no further counselling through this service. She agreed with counsel for the defendant that she was aware that the counselling offered was free of charge to her. Counsel for the defendant submits that her failure to do so is indicative of the fact that her emotional and psychological difficulties by that time were not of great significance.

21. The plaintiff had further periods off work during 2003 and early 2004, no more than a day at a time and sometimes as little an hour, which she attributed to her injuries. She took this time off work as sick leave or personal leave, rather than claiming for it against Comcare, and she suffered no loss of income because of it. She may have lost some sick leave credits but as she has left the employment, she makes no claim in this regard.

22. In late April or early May 2004, the contractual arrangement between the plaintiff and the Department of Defence (Navy) came to an end, and no further renewal was offered to her. She was out of work for about six weeks. In about June 2004 she was offered part-time work with the Department of Defence (Army History Unit) at the same level (APS 2). She worked 2½ days per week and continued in this job on a contract basis for six months. When the contract came to an end in December 2004, it was not renewed, and the plaintiff has not been in employment since then. During 2005 she has engaged in part-time study at the Canberra Institute of Technology, Reid, for an Advanced Diploma in Library and Information Services. I infer that she is undergoing this additional training with a view to employment once her children are older (she and her husband have daughters aged 17 and 10 and a son aged 12).

23. The plaintiff was assessed on two occasions by Dr GG Griffith, consultant surgeon, at the request of her solicitors. Dr Griffith saw the plaintiff in Canberra in February 2004 and again in April 2005. He took a detailed history, and carried out a physical examination on each occasion. In February 2004, just on a year after the accident, he formed the view that she had suffered at the time of her injury a musculo-ligamentous sprain to the cervical region and also to the lumbar region. By the time he saw her, these had resolved, but she had been left with persistent right-sided cervical myalgia and minor left-sided cervical and cervico-dorsal myalgia, and also focal paraspinal myalgia. In addition she was suffering from a chronic adjustment disorder with elements of depression and anxiety, which had not been treated. He thought that she would continue towards a full recovery over time. The resolution of her psychological symptoms could be expedited with appropriate treatment. She was able to continue in her employment despite ongoing discomfort, and there was no reason why she should not continue to do so. Her condition was one of residual pain in the musculature surrounding the neck and lower back at a variable and unpleasant but tolerable level. Her symptoms included headaches which Dr Griffith thought were secondary to her neck injury.

24. When he saw her in April 2005, he thought that her adjustment disorder had essentially resolved. She was coping well without overt evidence of depression or anxiety, other then minor anxiety when a passenger in a motor vehicle. She had persisting cervico-dorsal and paravertebral lumbar myalgia, both on the right side, with occasional subjective referral of pain to the right leg. He thought that she should continue to improve and that her prognosis was for eventual resolution. By then her contract had come to an end and she was not working. Dr Griffith thought that she was fit for her pre-injury work, and noted that she was coping with her study program with minor discomfort, not at such a level as to interfere in any way with her ability to engage in study or other activities. She had minimal symptoms in the cervical region with occasional headaches, and symptoms to a greater, though manageable, extent in the lumbar region. He thought that she would remain symptomatic for at least a further twelve months. He thought it highly advisable for her to lose 30 kg in weight. This would require a high degree of self-discipline and some assistance from a dietician. The nervous shock she had suffered at the time of the accident had completely resolved.

25. The plaintiff's solicitors sent her to Dr William Knox, consultant psychiatrist, for assessment and report in July 2004. In his opinion the plaintiff was suffering from a specific phobia relating to travel in a motor vehicle, particularly as a passenger, of mild to moderate severity. She was fearful when driving, and hypervigilant in respect of a further accident, particularly from the rear. The phobia did not prevent her from driving. He thought that the phobia would continue for several years, gradually reducing in severity. He did not regard the condition as one of significant disability.

26. In January 2005, he responded to a letter from the plaintiff's solicitors who had asked him what might be appropriate treatment for the plaintiff. He did not see the plaintiff again. His comment was that the usual approach to treatment for phobia was cognitive behaviour therapy administered by a clinical psychologist. About ten treatment sessions were usual, at a cost of the order of $160 per session. Dr Knox said that the plaintiff might arguably also require psychotropic medication for anxiety, although the more usual treatment was cognitive behaviour therapy.

27. The defendant's solicitors referred the plaintiff to Dr Robin Jackson, orthopaedic surgeon, who saw her on 27 October 2004; and to Dr Doron Samuell, a clinical and forensic psychiatrist who saw her on 12 April 2005. Dr Jackson had the benefit of documents produced by Dr Leerdam and Southside Physiotherapy recording the plaintiff's treatment. He noted that the plaintiff had only minor treatment following the motor vehicle collision. It appeared to him that she had recovered from any injuries to the neck and shoulder. She continued to experience pain in the right buttock region but he noted that she had had pain in that area before the collision. He thought that the pain was the result of a low back problem, and was probably referred pain caused by nerve root irritation. His diagnosis was that the plaintiff had sustained a soft-tissue injury to the neck and posterior shoulder girdle, and that she had aggravated a pre-existing low back problem with what he considered to be right buttock sciatica. She did not require any further treatment for her physical injuries. Her prognosis was excellent. In Dr Jackson's opinion she had already made a full recovery, her only continuing system being right buttock pain which had been present before the collision.

28. Dr Samuell provided a written report and also gave evidence by telephone. His opinion was that the motor vehicle collision caused an adjustment disorder in the plaintiff, reflected in anxiety and other psychological difficulties. Having regard to the fact that she did not require anti-depressant medication and that after a month or so she was able to go back to work and continue driving, Dr Samuell thought that the adjustment disorder must have been very mild, and that it probably resolved within a matter of weeks. He noted that it had not been the source of any significant impairment for some time. The plaintiff required no psychological treatment, and her prognosis was excellent.

29. Before he gave evidence, Dr Samuell was provided with a copy of Dr Knox's report. He disagreed with Dr Knox's view that the plaintiff had any continuing psychological condition resulting from the accident and also disagreed that she required any treatment.

30. On Anzac Day, 25 April 2005, the plaintiff was injured in another motor vehicle collision on the Hume Highway between Albury and Holbrook in New South Wales. She was a front seat passenger, and her husband was driving. It seems that the collision was entirely the fault of the other driver. The plaintiff's evidence is that the collision aggravated her symptoms, and that they have remained at that aggravated level since. There is no supporting medical evidence from either side: all the doctors whose opinion evidence is before the court last saw the plaintiff prior to this second accident. Whilst it seems that the plaintiff would have a good case on liability, I infer from her description of her injuries and symptoms that she would have no prospect of achieving the threshold which applies in New South Wales for damages for non-economic loss. In the circumstances I treat the second accident as non-compensable, and simply as an incident which caused some aggravation of the plaintiff's then condition.

31. The evaluation of the medical evidence necessarily depends upon the extent to which the history given by the plaintiff is to be accepted. I found the plaintiff to be a truthful witness, doing her best to give her evidence honestly and factually. Not unusually, she tended to compartmentalise her evidence, emphasising the symptoms which she blamed on the car accident and perhaps underplaying the symptoms which had caused her to seek treatment before the accident. It is clear from the physiotherapy records that the plaintiff had had symptoms from time to time requiring physiotherapy, though on isolated occasions over a period of years. She had sought treatment once about five months before the accident and twice in the month of the accident. It is not, however, suggested that the condition which prompted her to seek that treatment was disabling to the extent that she needed time off work, and I accept that by the time of the collision, any residual symptoms were minimal. The physiotherapy history shows that the plaintiff was vulnerable to injury in the neck, low back and right buttock region, and it is probably not surprising that it was in these areas that her post-accident symptoms made themselves felt.

32. I accept the plaintiff's evidence that her continuing low back and right buttock symptoms are more severe than her pre-accident symptoms in those areas, and that she experiences them as different in kind. I do not accept Dr Jackson's conclusion that her symptoms have settled at their pre-accident level and accordingly I do not accept his conclusion that the plaintiff has made a full recovery from her physical injuries. I prefer the opinion of Dr Griffith. I accept that the plaintiff is continuing to suffer from some symptoms in the neck, low back and right buttock. I accept Dr Griffith's description of these as being at a variable and unpleasant but tolerable level, and his opinion that the symptoms are likely to resolve completely over time. It is now about 2½ years since the accident, and it seems likely that resolution will take place over another one to two years.

33. I accept the plaintiff's evidence about her continuing symptoms of anxiety as a driver and passenger in a motor vehicle. I do not accept Dr Samuell's opinion that her adjustment disorder resolved within a matter of weeks of the accident. This seems to me inconsistent with the evidence of the plaintiff and her husband. I prefer the evidence of Dr Knox, and I accept that the plaintiff has suffered since the accident and is continuing to suffer from a mild to moderate specific phobia related to travel in a motor vehicle. Dr Knox's opinion is that this is likely to persist for several years, gradually reducing in severity. I think that the plaintiff will eventually make a complete recovery, and I note that the severity of the phobia is not such as to prevent the plaintiff from driving or travelling as a passenger with her husband as required. I accept that the plaintiff has reduced the level of her travel in a motor vehicle for recreational purposes. It was very unfortunate that a short time after the accident, the plaintiff's father's age and medical condition required the plaintiff and her husband to drive to Melbourne a number of times. They shared the driving. I am satisfied that the plaintiff saw this as a necessity and something about which she had no practical choice. The events of this period do not take away from my satisfaction that the plaintiff has greatly cut down on what might be described as pleasure trips, such as Sunday drives into the country. This has inevitably led to some diminution in her enjoyment of life.

34. It is agreed between the parties that the plaintiff has incurred treatment expenses as a result of her injuries in the sum of $843.25, all of which has been paid by Comcare and must be refunded to that body. It is also agreed that Comcare has paid the plaintiff $921.47 in periodical incapacity payments, and the plaintiff is also liable to repay that amount. She has not suffered any other actual loss of pay, although she took off various periods of a day or so, or a few hours, over the year after the accident, for which she received sick pay or personal leave pay.

35. She does claim that she suffered a loss between contracts, and after her last contract came to an end, and she also makes a claim for future economic loss and future treatment expenses.

36. I am not satisfied that the accident had anything to do with the fact that the plaintiff was out of work for a few weeks between contracts in mid-2004, or that her Army contract was not renewed after it came to an end in December 2004. I am not satisfied that had it not been for the accident the plaintiff would have been working during the first half of 2005. Therefore I make no further allowance for past loss of earnings or earning capacity.

37. The evidence does not enable me to be satisfied to the requisite degree that the plaintiff has suffered as a result of the accident an impairment of future earning capacity likely to be reflected in lost earnings.

38. Taking into account that the plaintiff has not needed to see her general practitioner since December 2003, or her physiotherapist since mid-2003, I am not satisfied that she has made out a claim for future medical or physiotherapy expenses. As to the claim for cognitive behaviour therapy, I do not take Dr Knox to have been expressing the view that this was required, but merely that it was available. I note that the plaintiff has not had any psychological treatment to date and that she declined an opportunity of psychological counselling when it was offered to her a few months after the accident. I am not satisfied that there is any real likelihood that she will choose to incur the expense of cognitive behaviour therapy of the kind outlined by Dr Knox.

39. I am satisfied that it is more likely than not that the plaintiff's continuing physical symptoms will put her to some minor expense for non-prescription painkillers and other medication over the next two years or so. I allow $250 for future medication.

40. The impact was a severe one and the effect on the plaintiff, both physical and psychological, has been significant. The physical effects were probably greater than they might otherwise have been because of the plaintiff's pre-existing problems with her neck and low back. The psychological aspect was worsened by being imposed upon other things going on in the plaintiff's life such as her father's condition and subsequent death, behavioural issues with one of her children and her own concern about the continuing availability of employment and the family's financial position. It seems to me that an appropriate figure to compensate the plaintiff for general damages for pain and suffering and loss of enjoyment of life, including the effects of the phobic adjustment disorder, is $37,500 of which I apportion $30,000 to the past, generating interest of $1500.

41. The total of those components is:

General damages	$37,500.00
Interest thereon	$1500.00
Past treatment expenses	$843.25
Future medication	$250.00
Past economic loss	$921.47
TOTAL	$41,014.72

42. No claim is made for the notional cost of services provided by family members.

43. I am satisfied that the total is an appropriate figure to compensate the plaintiff for the effects of the collision upon her. There will be judgment for the plaintiff for $41,014.72. I shall hear the parties as to costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 19 July 2005

Counsel for the plaintiff: Mr D I Richards

Solicitor for the plaintiff: Slater & Gordon

Counsel for the defendant: Mr P D Ryan

Solicitor for the defendant: Sparke Helmore

Date of hearing: 29 and 30 June 2005

Date of judgment: 19 July 2005