Vukas v Johnston [2005] ACTSC 85 (8 September 2005)

Last Updated: 14 September 2005

ZORICA VUKAS v BRENDAN JOHNSTON

[2005] ACTSC 85 (8 September 2005)

DAMAGES - motor vehicle accident - exacerbation of prior disabilities - reduced capacity to work - loss of past and future earning capacity

No. SC 823 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 8 September 2005

IN THE SUPREME COURT OF THE )

) No. SC 823 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ZORICA VUKAS

Plaintiff

AND: BRENDAN JOHNSTON

Defendant

ORDER

Judge: Higgins CJ

Date: 8 September 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment in favour of the plaintiff in the sum of $135,946.47.

1. This is an assessment of damages arising from the effect on the plaintiff of a motor vehicle accident in which she was involved on 21 December 2000.

2. The plaintiff was born in Croatia on 31 May 1966. She is now 39 years of age. The task of assessing damages in the present case is complicated by a history of multiple previous motor vehicle accidents and other accidents resulting in multiple prior injuries.

3. On 15 July 1989, the plaintiff suffered the first motor vehicle accident. She suffered severe neck pain and headaches and the shoulder and hip were also injured. There was no time lost from work, though the neck and headaches were painful intermittently.

4. The next accident was about 8 June 1991. It was a whiplash type aggravation of the pre-existing injury. Even as at 9 September 1993, the plaintiff complained to her general practitioner, Dr Goonerage, of tension headaches, paraesthesia in both arms, neck and right hip pain.

5. On 29 October 1993 the plaintiff had a grand mal epileptic seizure. She came under the care of Dr Gyntis Danta. That condition, though possibly aggravated by work, was not a consequence of the car accidents.

6. As of February 1994, the plaintiff had ongoing pain in her neck and right arm. She also had headaches. She was suffering from stress and, though not conscious of it, depression.

7. On 18 September 1996, the plaintiff took a redundancy package from the Department of Social Security. She had commenced Public Service employment in 1985.

8. She was then assaulted on 26 September 1996. Her existing disabilities, including her epilepsy, were aggravated.

9. After this occurred, at the end of 1996, the plaintiff moved to Sydney.

10. After a holiday overseas, between 10 July 1997 and 15 May 1998, the plaintiff took up employment as a customer service officer with Centrelink. It was but a temporary contract and shortly thereafter the plaintiff returned to Canberra.

11. As at the date of a third accident on 23 September 1998 the plaintiff was already suffering chronic pain and headaches. After the third accident, the plaintiff noticed aggravation, in particular, of her neck and lower back pain.

12. In February 1999, the plaintiff was prescribed Prothiaden for depression. On 25 March 1999, she obtained a further temporary contract with the Australian Prudential Regulatory Authority (APRA) performing data input concerning superannuation funds. She then received a promotion commencing at the Centrelink call centre on 8 August 1999. She coped well with the job but had an emotional shock when a work colleague suddenly died.

13. Tensions with a supervisor thereafter led the plaintiff to resign. In November 1999, the plaintiff suffered what was diagnosed as a panic attack. She was referred to Ms Tania Lioulios and Dr Tom Sutton for psychological counselling.

14. In February 2000, the plaintiff suffered an apparently unrelated gynaecological problem; she had a hysterectomy.

15. By 13 June 2000 the plaintiff had become unfit for work as a result of a combination of these prior disabilities.

16. The accident, the subject of these proceedings, occurred on 21 December 2000. It was a rear end collision. She felt an immediate onset of headache and pain in the mid thoracic region, in the area where her bra strap was situated. She still finds it painful, radiating to the lower back.

17. All her previous physical back and neck symptoms were, understandably, aggravated. She stated that "My whole body now is much worse than it ... you know?"

18. She drove home and was given a massage by her mother. She took two panadeine forte. She applied the kind of palliative treatment she had before but did not see her general practitioner until 10 January 2001.

19. Thereafter, Ms Vukus suffered from a pain in the lower back on the right side of the buttock which seriously interfered with her sleeping; she has since slept on her couch.

20. Nevertheless, on 23 April 2001, the plaintiff obtained a six month contract with the Department of Employment and Workplace Relations. She was told it would not be renewed in September 2001. There had been difficulties caused by the plaintiff's state of health, particularly the epilepsy.

21. She did receive a determination, on 13 November 2001, that the injury she sustained whilst working for APRA (triggering of epilepsy) was compensable up until 22 April 2001.

22. In 2003 she was submitted to a radio frequency denervation procedure. It was highly unpleasant: it was followed by swelling and pain in the right leg; she lost sensation in half her leg and the cramping became worse.

23. In 2004 the plaintiff was offered an intravenous infusion of Ketamine by Dr Speldewinde to ease her neuropathic pain. The plaintiff's misfortune continued: she suffered hallucinations and the treatment had to be abandoned. The treatment had an apparently adverse effect upon her memory, complicated by an increase in epileptic seizures culminating in a cluster in May.

24. Since December 2000, the plaintiff received some household assistance from her mother as well as massage treatment. This amounted to about one hour during the week and a couple of hours every second weekend. However, there was assistance given before the accident; the plaintiff estimated that it was 60 per cent greater since the accident. Her use of medication had increased also: a list of medications was tendered; no challenge was made to the plaintiff's evidence in that respect.

25. Following the denervation procedure and the other adverse events of 2004, the plaintiff has not been employed; she does not consider herself employable.

26. I have to say that I found the plaintiff to be a truthful and accurate witness, even allowing for the difficulty of self-reporting pain and disability levels. The plaintiff frankly agreed that her state of health before the subject accident was not good. However, I can confidently conclude that the subject accident has aggravated the plaintiff's state of disability to a new and higher level.

27. The plaintiff was examined by numerous doctors; both those treating her, and those reporting for forensic purposes to her solicitors. They are, in my opinion, supportive of the accuracy of the plaintiff's self-assessment.

28. To quote Dr Geoffrey Speldewinde, rehabilitation specialist (report 8 November 2003) -

... Zorica Vukas' current presentation of chronic pain, aggravated depression, chronic right lower back pain and left neck pain, and painful clunking right hip are significantly more symptomatic than prior to [the subject] motor vehicle accident.

29. Further, the subject accident has caused an aggravation of the pre-existing depression; this has made it more difficult to manage the plaintiff's seizures.

30. The major difference is between being able to engage in some paid employment, albeit with difficulty, and being now totally and permanently unemployable.

31. I acknowledge that there was a substantial risk of that result in any event.

32. I also note that Dr Nadana Chandran (report 31/03/03) from a neurological perspective, considers that the plaintiff is fit for "part-time sedentary work with the provision to walk around from time to time". However, that was prior to the unsuccessful denervation treatment. Also, Dr Chandran's report did not include the significant additional psychological damage that the subject accident and its sequela caused to the plaintiff.

33. Following the denervation, Dr Chandran reported (10/12/03) on the partial success of the procedure and noted that Dr Speldewinde was managing her symptoms.

34. Dr Owen White, neurologist, reviewed the plaintiff on 6 February 2004. His opinion was optimistic, expecting improvement over the next 12 to 24 months. He did, however, add -

I would anticipate that there will be degeneration in the future but with proper back care, I believe she should be able to maintain a reasonable degree of functional activity long term with a reasonable degree of pain control.

35. Dr Gyntis Danta confirms right L5/S1 nerve root lesions (report 19/1/04).

36. The defendant tendered a report from Dr David Elder, consultant occupational physician. That doctor found it necessary to describe the plaintiff as "a difficult historian to follow", "somewhat evasive". He found a "bizarre" and inconsistent history and that Ms Vukus, presumably exhibiting paranoia, considered herself to be the victim of medical conspiracy and lies. That assessment is totally inconsistent with every other similar assessment by the many medical practitioners who examined her. Certainly, it is at odds with my impression of the plaintiff as she presented to me. I can only describe Dr Elder's conclusions as surprisingly out of step with the objective signs seen by other qualified specialists. He has apparently exaggerated and distorted the plaintiff's complaints, as she described them in evidence, with the apparent purpose of then dismissing and denigrating them. I find his report to be of no value and I accept none of his findings or conclusions where they are inconsistent with more objectively expressed medical opinion, or the plaintiff's evidence as given before me.

37. Mr John Korber examined the radiological evidence (7/09/04). He found disc degeneration at L5/S1 and at the right hip: the cervical spine was not abnormal; no additional structural damage could be attributed to the 21 December 2000 accident. Review on 10 November 2004 revealed an acetabular labral tear in the right hip.

38. Dr Max Wearne, Orthopaedic Surgeon, examined the plaintiff on 29 November 2004. He had no apparent difficulty obtaining a rationally expressed and consistent history. There was, he considered -

... is a possibility that Ms Vukas may have sustained soft tissue injuries to her back and may have sustained an aggravation of the pre-exiting degenerative intervertebral disc condition of her lumbosacral spine.

39. Nevertheless, Dr Wearne dismissed the accident of 21 December 2000 as causative of any ongoing aggravation. He conceded that, in effect, he had no personal knowledge of the plaintiff's condition before that accident; he was unaware of her pre-existing pain and disability. I consider that the plaintiff's treating doctors and, indeed, the plaintiff herself, to be a better source of information than Dr Wearne.

40. Nevertheless, it is the case, as Mr Black (for the defendant) submitted, that the plaintiff did have significant pre-existing pain and disability. It must be a matter of impression, based in large measure on the plaintiff's presentation in the witness box, but I would award $30,000 for general damages. I bear in mind the chance that pre-existing disabilities would be likely at some point not readily discernible to overtake that increased level of pain and disability. For that reason I would attribute $20,000 to the past for the purposes of an award of interest. I allow $1,865 (in round figures) for interest.

41. Out of pocket expenses are agreed at $6,469.47. It was not asserted that those were already paid by the plaintiff so no interest award is attracted. That assumes that one third of total expenses so incurred are attributable to the subject accident. That seems a valid assumption which I adopted in assessing general damages.

42. Future out of pocket expenses can only be assessed on a global basis. The claim for $5,000 seems reasonable and I award that sum.

43. The claim for unpaid assistance is agreed at $5,000. It relates to a closed period. I allow $2,000 for interest as a lump sum calculated at 10 per cent thereafter.

44. The past loss of earning capacity is more difficult to calculate. However to attribute one third of the total loss to the subject accident seems also to be reasonable. Hence I award $30,512 for net loss of earnings in the past and allow $7,100 for interest thereon. Superannuation contributions foregone is 9 per cent, that is, $3,385 in round figures.

45. Future loss of earning capacity is more difficult; $50,000 is claimed. A total loss entirely attributable to this accident would, assuming retirement at age 60, warrant an award of $280,000 (in round figures). The pre-existing disabilities, and their likely progress render that figure liable to considerable discounting, both as to the duration of the plaintiff's working life, and as to her actual earning capacity. If the one third attribution was carried through to retirement at age 60, about $72,000 would be justified. I am satisfied that $50,000 represents a fair estimate of the loss of earning capacity caused by the subject accident. I award that figure.

46. In total, therefore, I award:

General damages $30,000.00

Interest thereon $1,865.00

Out of pocket expenses $6,469.47

Future out of pocket expenses $5,000.00

Past loss of earning capacity $30,512.00

Interest thereon $7,100.00

Future loss of earning capacity $50,000.00

Unpaid assistance (post) $5,000.00

Total $135,946.47

47. The total is $135,946.47. I consider that appropriate. I direct the entry of judgment in favour of the plaintiff accordingly. I will hear the parties as to costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 8 September 2005

Counsel for the Plaintiff: Mr G A Stretton

Solicitor for the Plaintiff: Colquhoun Murphy

Counsel for the Defendant: Mr Black

Solicitor for the Defendant: Abbott Tout Lawyers

Dates of hearing: 9, 10, 11 & 12 May 2005

Date of judgment: 8 September 2005