Hunt v Protonotarios & Anor [2007] ACTSC 16 (12 March 2007)

Last Updated: 7 May 2008

LESLEY ANNE HUNT v ANAGIRO PROTONOTARIOS & ANOR

[2007] ACTSC 16 (12 March 2007)

NEGLIGENCE - causation - motor vehicle accidents in 1987 and 2001 - reduction of damages for first accident to take account of injuries in supervening accident.

DAMAGES - personal injury - motor vehicle collision - injury to cervical spine - neck pain and headaches - no issue of principle.

State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003, followed

Donaldson v Canberra Tyre Service [2004] ACTSC 26, considered

Cairns v Woolworths [2005] ACTSC 95, considered

No. SC 775 of 1997

Judge: Master Harper

Supreme Court of the ACT

Date: 12 March 2007

IN THE SUPREME COURT OF THE )

) No. SC 775 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LESLEY ANNE HUNT

Plaintiff

AND: ANAGIRO PROTONOTARIOS

First Defendant

AND: AMY LEENDERS

Second Defendant

ORDER

Judge: Master Harper

Date: 12 March 2007

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff against the first defendant in the sum of $368,951.44.

1. The plaintiff commenced this action claiming damages for personal injury arising out of two motor vehicle collisions, on 11 November 1987 and 14 May 2001. Shortly before the hearing the plaintiff and the second defendant reached agreement, and consent judgment has since been entered against the second defendant for $86,569.00 plus costs.

The plaintiff's evidence

2. The plaintiff was born on 16 April 1954. She completed year twelve at school and worked for a year at a department store in Batemans Bay. In 1972 she moved to Canberra and joined the Department of the Army as a public servant. In 1974 she married a soldier, Kingsley Hunt. They had various moves within Australia over the years of his army service. Since March 1977 the plaintiff has herself been a member of the Army Reserve. She has two children, a daughter aged almost 30 and a son of 27.

3. During the 1980s the plaintiff served with Sydney University Regiment, which held a sixteen-day camp each January. During the 1985 camp the plaintiff was working in a group operating targets on a rifle range. A rectangular metal target frame fell and struck her head. The frame was about 2 metres high and 1 metre wide. She felt giddy and nauseous. A lump formed on her head. A few hours after the accident she was taken to Royal Canberra Hospital. She was x-rayed and placed under observation for several hours. She had severe headaches for a number of weeks. Her headaches and neck pain continued throughout the year. At the next Sydney University Regiment camp in January 1986, she required medical attention for headaches.

4. In October 1986 the plaintiff rejoined the Public Service. With the exception of a period of leave without pay from 1991 to 1993, she has worked there full-time since.

5. On 11 November 1987, she was driving south on Marcus Clarke Street, Canberra City. The first defendant was driving East on Rudd Street and drove through a give-way sign. The front of the plaintiff's vehicle collided with the front left side of the first defendant's car. The vehicles slid sideways and the rear of each struck the other in a second impact. The first defendant has admitted liability for the collision.

6. The plaintiff was not immediately aware of any injury, but that night her neck and shoulders began to stiffen up. She could not turn her head. The next morning she needed help from her husband to get out of bed. Her evidence was that she had had a headache every day since. She described the headache as extending from both sides of the neck, behind the ears, around the base of the skull and over the right eye. On some days the pain was more intense and more extensive than on others.

7. Her symptoms following the rifle-range accident and the first motor vehicle accident were similar in nature but differed in degree. The headaches following the accident on the rifle range were less severe than those following the motor vehicle accident. The latter were accompanied at times by nausea, vomiting, perceived loss of temperature and low blood pressure. The headaches from the earlier accident had ceased by six months prior to the motor vehicle accident.

8. In 1988 the plaintiff again attended the annual Sydney University Regiment camp. In 1989 she left the Regiment and joined the Royal Australian Army Pay Corps. At the time of hearing the plaintiff was still in that unit, and had reached the rank of Warrant Officer Class 2. She is ineligible for further promotion because of her medical condition.

9. In early 1991 the plaintiff and her family moved to Wodonga in Victoria. She continued to suffer headaches and neck pain. On 7 April 1993 she was involved in a further motor vehicle accident. She was decelerating to give way to another vehicle when she was hit from behind. This accident aggravated her symptoms for a couple of weeks, after which they returned to their previous level. The plaintiff made a claim against the Traffic Accident Commission of Victoria for treatment expenses. She did not claim or receive damages or other compensation.

10. At the end of 1993 the plaintiff and her family returned to Canberra. In January 2000 she and her husband moved to Murrumbateman in New South Wales. The plaintiff's husband was discharged from the Army in 1999 as medically unfit due to chronic fatigue syndrome and depression. He worked as a contractor for eighteen months before retiring in 2001. He receives a military pension of about $700.00 per fortnight.

11. On 14 May 2001 the plaintiff was involved in the collision with the second defendant. She had been driving along Allawoona Street, Bruce, and stopped in a slip-lane at the intersection with Ginninderra Drive. She was hit from behind by the second defendant. That night, her headache got worse and her neck and lower back stiffened up. She worked the next day, but had the following two days off work. In January 2002 she had three weeks off work due to depression. (It was agreed between the parties that the 1987 accident was not a cause of the depression).

12. In late 2002 she was involved in yet another motor vehicle accident, this time her fault. She was not injured.

13. The plaintiff is now fifty-two. She is still working full-time, and intends to continue until the age of sixty-five. Her husband having retired, she sees herself as the breadwinner. She is studying for a graduate certificate in accounting from Southern Cross University.

14. Following the 1987 accident the plaintiff attempted to play tenpin bowling, netball and tennis. Each attempt aggravated her neck pain and caused an increase in the intensity of her headaches. She did not attempt these activities again after the early 1990s. She has always been able to walk for exercise, so long as she does not overextend herself. She rides an exercise bike at home for half an hour a day. As a result of her injuries she has had to give up crafts such as knitting, sewing and crochet. Before the 1987 accident she used to knit jumpers for the family during winter, as well as doing crochet and making clothes for the children. Following that accident, these activities increased her pain to unacceptable levels, due to the need to hold the work in a fixed position with her head down. She became more irritable after the 1987 accident, having arguments with her husband and children which she had not had previously.

15. The plaintiff has required assistance around the house since the time of the 1987 accident. This had been provided mainly by her husband, but also to some extent by her children and a friend, Ms Denise Frey. Between the 1987 and 2001 accidents, the plaintiff needed help with such tasks as hanging out washing, ironing, cleaning the house and gardening. Until the family moved to Wodonga in 1991, Ms Frey had occasionally helped her while her husband was at work. If she lifted her hands above her head it affected her neck and increased the severity of her headaches. When the plaintiff required a pethidine injection, her husband, daughter or son-in-law would drive her to the appointment from Murrumbateman and bring her back afterwards. She requires a greater measure of assistance around the home since the 2001 accident, with tasks such as cooking, dishwashing, vacuuming, tidying the house and cleaning the swimming pool. The plaintiff's daughter and son-in-law live in a self-contained unit on the Murrumbateman property, and help with domestic duties. The plaintiff agreed under cross-examination that she would expect her family to do some of the work even if she was not in pain. She agreed that since his retirement her husband was usually at home, except for a couple of days a week when he worked "mucking out" stables on neighbouring properties, and that she was the breadwinner. This meant that, health permitting, he was available to attend to domestic chores most days of the week.

16. The plaintiff gave her evidence in a candid and honest manner. Nothing in cross-examination caused me to doubt its veracity.

The plaintiff's other witnesses

17. The plaintiff's husband and Ms Frey gave evidence. Mr Hunt recalled receiving a telephone call in relation to the 1985 accident at the rifle range. He went to see her in hospital afterwards. She looked pale but there was no sign of major injuries. He was told she had a bump on her head and some concussion. Before the 1987 accident she had been very outgoing and active. She had enjoyed gardening and craftwork. After that accident she was often in pain, and regularly complaining of headaches. She had returned to small amounts of physical activity since the accident, but nothing like beforehand. She was unable to do craftwork except in very small amounts. When they gardened together, she would direct him in doing tasks she would have done herself before the accident. He had assisted her around the house with tasks such as hanging out washing, making beds, vacuuming and window washing. In the initial stages after the accident he had also assisted with meal preparation. He had often been away on weekends due to work commitments. Since the 2001 accident, the plaintiff's low back pain had restricted her further, requiring him to render a greater amount of assistance than previously. He said that the plaintiff would do the tasks she could manage inside the house as well as short periods of activity in the garden. On a good day, she would do general household cleaning, dusting, mopping and vacuuming. On a bad day, she would do very little. He attributed her ability to work and gain promotion over the years since the accident to her determination to do the best she could and not to allow the pain and headaches to get in the way.

18. Denise Frey first met the plaintiff in 1984 when they worked together at the Department of Defence. Until the plaintiff moved away in 1991, she saw her once or twice a week. Before the 1987 accident, she and the plaintiff had done a lot of gardening together. They had spent most free weekends gardening together, including heavy work such as digging and carting manure. Ms Frey recalled that after the accident in 1987 she would occasionally arrive at the plaintiff's house to find her in bed. On these occasions she would do some general tidying around the house and would sometimes sit with the children.

The medical evidence

19. On 12 November 1987, the day after the first motor vehicle accident, the plaintiff saw Dr Wardman at a medical centre operated by the Department of Defence. She had an x-ray and was given a cervical collar, which she wore for several weeks. She was referred to Ms Yvonne Daniell at the Belconnen Physiotherapy Clinic with heaviness in both arms, and pins and needles in the arms and hands.

20. She saw a chiropractor, Mr Mark Tapper, on a number of occasions during 1987 when physiotherapy did not appear to be alleviating her symptoms. The chiropractic treatment focused on the neck in an attempt to relieve stiffness and pins and needles. Each chiropractic treatment relieved the symptoms initially, but they would return over the ensuing three or four days. The headaches were less severe immediately after treatment, but never vanished entirely.

21. Dr Philip Barraclough has been the plaintiff's Canberra general practitioner since 1985. She saw him on several occasions during 1987 and 1988. He administered injections to the back of her neck. He prescribed anti-inflammatories and painkillers. He referred her to Dr Thomas Lithgow, a pain management specialist, who tailored a program to her specific strengths and weaknesses. This proved to be of little practical assistance.

22. In September 1988 she saw Dr Gytis Danta, neurologist. He recorded "virtually daily and more or less continuous headaches on the right side of the head". Pain in the plaintiff's neck had commenced about a week after the target-frame accident. It had all but disappeared within six months. The pain recurred following the 1987 car accident. He suggested that she try a treatment of dihydro-ergotamine (DHE) injections for the pain in her head and neck. In May 1989 she agreed, and spent three days in hospital having the injections. She had a good response to the DHE and was discharged on Deseril. After this she had only very minor headaches.

23. Dr Danta saw her again in November 1989. She had ceased taking Deseril six weeks previously, after which she had been free of headaches for about a month. She had then experienced mild headaches daily and had twice been beset by severe headaches lasting for twenty-four hours. The mild headaches had responded to aspirin. She was not keen to go back on to Deseril which had produced negative side-effects in the form of nausea and vomiting. He left that decision in her hands. The DHE treatment reduced the severity of the headaches for a couple of months, after which they returned to their previous levels.

24. Dr Barraclough saw the plaintiff in February 1994, after her return from Wodonga. He referred her for CT and MRI scans. These showed a C5-6 disc protrusion. He referred her to Dr Bryan Ashman, orthopaedic surgeon, who felt that surgery was not indicated. She was undergoing chiropractic treatment and taking painkillers on a regular basis. She remained significantly incapacitated by pain as a result of the 1987 motor vehicle accident. Dr Barraclough felt sure the situation would continue for the rest of her life. Reporting in 1997, he noted that the plaintiff continued to benefit from massage therapy once a week, physiotherapy from time to time and cortisone injections into the occipital nerves three or four times a year. She had developed chronic pain syndrome. She remained capable of full-time work and participation in the Army Reserve and the scouting movement. In 1999, in his last report before the 2001 motor vehicle accident, Dr Barraclough thought that without weekly chiropractic treatment her condition would deteriorate. She was taking Celebrex (100 mg) twice a day and Tryptanol (25 mg) once a day, as well as regular doses of Mersyndol Forte. She complained of insomnia and depression associated with the pain. She had suffered a severe headache at one time for three days, taking eight Mersyndol Forte tablets a day to no effect. On this and other occasions her headaches had been so severe that Dr Barraclough had given her pethidine injections. The plaintiff's evidence was that immediately before the 2001 accident she was taking Mersyndol Forte four times a day. At the time of the hearing she was also taking three Lyrica tablets a day, prescribed by Dr Barraclough to help her sleep.

25. Ms Rosanne Feneley, chiropractor, reported to the plaintiff's solicitors in October 1994. In her view the injury of 11 November 1987 had disrupted the C4-5 and C5-6 discs, resulting in restricted cervical spine movement, neck pain and post-traumatic migraines, with varying degrees of associated pain in other parts of the body. The plaintiff's response to chiropractic treatment had been disappointing. She had reported temporary improvement on occasions but essentially her condition had remained the same.

26. On 23 March 1995 the plaintiff saw Dr Ted Morgan, a pain management consultant, in Sydney. He noted her symptoms as follows: posterior neck pain on both sides, worse on the right; paraesthesiae below the elbow and heaviness in the upper and lower arms; hemicranial pain, usually on the right, with associated nausea and occasional vomiting; headache-associated symptoms such as dizziness, tinnitus and blurred vision when reading; and bilateral pain in the sacro-iliac joint. The headaches lasted days or weeks, though there were occasionally reasonably headache-free days. None of the treatment had helped the plaintiff a great deal. The disc herniation at C5-6 had probably occurred in the 1987 motor vehicle accident. The cervical pain was a consequence of injury to the capsules of the cervical joints. The headaches were triggered by injury in the area of the upper cervical spine. Progression of the disc protrusion was unlikely without further aggravating incident. In the absence of fresh provocation, the symptoms were likely to persist for many years with gradually reducing intensity. Dr Morgan thought the plaintiff should be given credit for carrying on and adjusting her life despite very considerable pain and disability.

27. From 18 May 1998 the plaintiff attended the Waramanga Chiropractic Centre, where her neck and lower back were treated by Ms Sue Arnott. The plaintiff had thirty-three treatment sessions in 1998, forty-two in 1999, thirty-four in 2000 and fifty in 2001, the year of the car accident with the second defendant. The plaintiff found the treatment of benefit, increasing her flexibility and reducing the stiffness in her neck.

28. The motor vehicle accident on 14 May 2001 aggravated the plaintiff's neck pain and headaches. It also caused her pre-existing low back pain (which was not claimed to be referable to the 1987 accident) to become much more severe. The physical symptoms led to some depression. Following this accident she continued to see Dr Barraclough and Ms Arnott. Between the 2001 accident and the hearing she was seen by Dr John Saboisky, consultant psychiatrist, about her depression; Dr Garth Eaton, pain management specialist; and a number of massage therapists.

29. Dr Saboisky reported to the plaintiff's lawyers in April 2003 and in December 2005. He said that the plaintiff developed symptoms consistent with a major depressive disorder two months after the 2001 accident. She lost interest in housework. Dr Saboisky recorded a history of long-term treatment with up to eight Mersyndol Forte tablets a day and pethidine injections once a month. No long-term solution had been found for the plaintiff's chronic pain.

30. Dr Eaton first saw the plaintiff in November 2001 on referral from Dr Barraclough. He saw her four times during 2002 and once in 2005. In December 2005 he wrote:

It is difficult to be able to ascertain the exact contribution from each accident however Ms Hunt reports that in the accident in November 1987 headaches were more severe than neck pain.

After the accident in May 2001 neck pain and low back pain were more predominant. However the severe headaches and migraines have persisted. Ms Hunt's overall condition is one of chronic extensive pain.

...

The accident in 1987 appears to have set in train a sequence of events which have largely included chronic neck pain and headaches. The accident in 1993 resulted in temporary aggravation while the accident in 2001 resulted in a more significant persistent aggravation, the precipitation of lumbar pain and reactive depression.

31. He thought there was a 30% chance of the plaintiff retiring before the age of sixty-five. If she did retire early, the responsibility could be attributed between the 1987 and 2001 motor vehicle accidents as to 70% to the former and 30% to the latter.

32. This is inconsistent with an opinion he expressed in a report in October 2002:

I do not have any information to suggest that Ms Hunt sustained any severe mechanical injury or damage in the accident which occurred on 11 November 1987. Ms Hunt indicated that she did have ongoing pain and discomfort however I do not have any information to say there was [sic] severe disc injuries that occurred in that accident.

It is possible that there may have been some undiagnosed degenerative change or injury which has progressively deteriorated over the years. However it is very difficult to say how much this has contributed to Ms Hunt's present condition. One would have expected that her condition would have settled quite satisfactorily given the many years since the accident occurred.

33. This statement is notable because in this report Dr Eaton did not mention the 1985 accident in the history. He went on to say:

On the balance of probabilities it would be reasonable to contend that the majority of Ms Hunt's symptoms and disabilities associated with her current condition are directly related to the motor vehicle accident which occurred on 14 May 2001. As I have not seen Ms Hunt during that period, I cannot really comment on her symptoms and progress those years [sic].

34. I prefer the opinion expressed in Dr Eaton's later report, which accords a more serious causal role to the 1987 accident and is more consistent with the weight of expert opinion and the plaintiff's oral evidence.

35. Dr Danta saw the plaintiff in March 2003 and in November 2005 at the request of the plaintiff's solicitors. He thought it commendable that the plaintiff had managed to adjust to her chronic pain and continue with her work, minimising her pain and disabilities. No specific therapy was likely to assist the plaintiff. There was no reason the condition should deteriorate, but nor would it improve. The headache was present all the time, as was the neck pain to a varying degree. His diagnosis was of cervical spondylosis, degenerative lumbar disc disease, chronic daily headache, depression, neck injury and back injury. The prognosis was poor. In five to ten years the plaintiff would probably have to give up work because of her injuries. He thought that the 1987 accident had contributed 30% to her disabilities and the 2001 accident 70%.

36. Dr Barraclough provided a further report on 6 January 2006. He thought that the plaintiff's prognosis was very poor. She had had chronic pain for years, exacerbated by the 2001 accident. She was unlikely to improve and likely to have to retire early. Degenerative changes in her cervical spine had developed. In Dr Barraclough's view the 1987 and 2001 accidents were equally to blame for her condition.

37. The plaintiff saw Dr David Champion at the request of her solicitors. He reported in June 2004 and January 2006. In his second report, he expressed the opinion that the plaintiff was at risk of being unable to work until sixty-five years of age, though if she avoided further accident it was possible. She was pushing her luck by studying and doing housework on top of her full-time workload. She was a determined person and was managing the situation well. This, however, was subject to psychological factors which might weaken her resolve. There was a 20% to 50% chance of early retirement. Causation could be apportioned as to 60% to the earlier accident and 40% to the later. In January 2006, Dr Champion expressed the opinion that it would be reasonable for the plaintiff to consider a maximum of three occipital nerve blocks in the future. He thought that Botox injections had a 50% probability of success in relieving her pain. The plaintiff had told him that she was not keen to undergo Botox injections or further occipital nerve blocks, although she would weigh up the pros and cons if they were recommended again at some stage in the future.

38. At the request of the solicitors for the first defendant, the plaintiff was seen by Dr John Aberdeen, consultant surgeon, in 1994 and Mr Gordon Stewart, consultant neurosurgeon, in 2005.

39. Dr Aberdeen thought that the 1985 accident had resulted in damage to the C4-5 and C5-6 discs, which had caused disabling symptoms lasting eighteen months. The 1987 motor vehicle accident had further damaged the discs, resulting in the severe disabling symptoms apparent when he saw the plaintiff six and a half years later. He predicted that she would remain in full-time employment.

40. Mr Stewart reported that the plaintiff had suffered multiple soft-tissue injuries in the 1987 and 2001 motor vehicle accidents. She had developed chronic pain. He found no abnormality on physical examination other than reduction of voluntary neck movement. Her treatment assisted her to maintain full-time employment, but had been unsuccessful in relieving her symptoms. He considered her to be "fit for full duties". His diagnosis was of chronic pain following multiple soft-tissue injuries; his prognosis in the short and long term was "good". He did not give oral evidence: I have the impression from his report that he is somewhat Spartan in his expectations of patients.

41. The plaintiff tendered three reports by medical experts engaged on behalf of the second defendant. Professor Vernon Marshall, Professor Emeritus of Surgery, saw the plaintiff in August 2002. He described the motor vehicle accident of 1987 as major, and that of 2001 as minor. The prognosis was guarded. The plaintiff's symptoms were worsening. He thought that the physical symptoms resulting from the 2001 accident ought to have resolved and that the major contributor to her symptoms was her depression, which he attributed to causes pre-dating 2001.

42. Dr Peter Snowdon, consultant psychiatrist, saw the plaintiff in March 2005. He noted that she had been dealing with chronic physical symptoms since the 1987 accident, and thought that this might explain what he thought seemed an excessive psychological response to the 2001 accident.

43. Dr Virginia Pascall, occupational physician, saw the plaintiff in April 2005. She reported:

The effects of the 1987 accident have caused a lasting effect on [the plaintiff's] ability to carry out prolonged computer work, prolonged reading and handwriting. Her ability to continue with these tasks to a high level is only an expression of her driving desire to succeed in her work and maintain her family. Her success at these should not in any way be seen as an indication of lesser severity of injury, as pain and what a person is able to do despite their pain is a function of their motivation and their beliefs about the pain rather than an indicator of severity.

The effects of the 1985 and 2001 accidents

44. The symptoms which followed the target-frame accident in 1985 were very similar symptoms to those the plaintiff suffered following the 11 November 1987 motor vehicle accident: predominantly headaches and neck pain. However, the plaintiff's uncontradicted evidence was that she had recovered from the 1985 accident by the time of the 1987 accident. Reporting in 1992, Dr Danta said the headaches had virtually ceased by 11 November 1987, and the neck pain had virtually ceased about six months after the target-frame accident. Both symptoms recurred after the motor vehicle accident. Dr Aberdeen accepted that the disabling symptoms had lasted eighteen months after the target-frame accident (that is, until approximately July 1986). He thought it reasonable to conclude that the 1985 accident caused damage to the C4-5 and C5-6 discs, which was aggravated by the 1987 accident. Dr Barraclough's notes show that on 20 August 1986 he reviewed the plaintiff's recovery from the 1985 accident. He noted tenderness at C5-6 and assessed her as having a soft-tissue injury. (He noted headaches on 3 November 1986 and 29 August 1987, but these both seemed to be related to sinus blockages). In both accidents the plaintiff was struck on the right upper cranium. Having regard to the similarity of symptoms following both accidents, I accept that the 1985 accident caused some measure of damage to the C4-5 and C5-6 joints, which were then more extensively damaged in the 1987 motor vehicle accident. CT and MRI scans were not taken until 1994, and there is no radiological evidence to enable a precise determination of the extent to which each injury caused damage.

45. Ms Feneley, the treating chiropractor, wrote her report in October 1994. She had seen the plaintiff on seven occasions in that year. She had reviewed CT and MRI scans and x-rays, all taken following the 1987 accident. She thought it likely that the plaintiff had suffered a "sprain strain" to the cervical spine following the 1985 injury, and that this injury was compounded by the 1987 accident. She thought it likely that the disruption to the C4-5 and C5-6 discs was caused by the motor vehicle accident.

46. As part of the plaintiff's history, Dr Morgan recorded that she had had x-rays shortly after the 1985 accident, and that these were said to be normal. Dr Morgan saw the plaintiff on 23 March 1995 and arranged for another CT scan and x-ray to be taken on 7 July 1995. On reviewing the material, it was his opinion that "the herniation at C5-6 probably occurred at the second accident".

47. I have made mention of the opinion expressed by Dr Eaton in 2002, seemingly unaware at that stage of the 1985 accident. He postulated that an earlier accident might have caused the 1987 accident to be more serious than it otherwise was.

48. However, the first defendant accepts that the symptoms from the 1985 accident had ceased before the 1987 accident occurred. Whilst the 1985 accident may have left the plaintiff more physically vulnerable to future physical trauma, at law a defendant must take the plaintiff as he finds her. I am satisfied that but for the motor vehicle accident of 1987 Ms Hunt would have been able to continue with her life unaffected, barring further injury, from no later than July 1986.

49. There was a significant issue as to the effect of the 2001 accident on the assessment of damages in the action against the first defendant. Counsel for the first defendant invited me, on the basis of expert opinion as to attribution of responsibility between the two accidents, to find that the 2001 accident had contributed more significantly to the plaintiff's damages, especially in terms of the prospect of economic loss due to early retirement, than the 1987 accident.

50. There have been four incidents in which the plaintiff suffered injury: the target-frame accident in 1985, the motor vehicle collision in Canberra City in 1987, the motor vehicle collision in Wodonga in 1993 and the motor vehicle collision at Bruce in 2001. Insofar as the headaches and neck pain are concerned, they were either caused or aggravated by each incident. This makes the task of determining causation difficult, and any attempt at mathematical precision impractical.

51. The law in relation to supervening accidents was set out by Malcolm CJ, sitting in the Full Court of the Supreme Court of Western Australia, in State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003 at 67,577. His Honour said:

In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:

(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

(2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.

52. The case was applied by Mason P in the New South Wales Court of Appeal in Jeffries v Roads v Traffic Authority of NSW (unreported, 28 November 1997, BC9707437 at 12) and Government Insurance Office of NSW v Aboushadi (1999) Aust Torts Reps 81-531 at 66,431-2). It has more recently been applied in this Court by Crispin J in Donaldson v Canberra Tyre Service [2004] ACTSC 26 at para 45, and by me in Cairns v Woolworths [2005] ACTSC 95 at paras 204-208.

53. The supervening accident of critical importance in the present case was that of 2001. As in SGIC v Oakley, and Cairns v Woolworths, the 2001 accident falls into the second of Malcolm CJ's categories: the 1987 accident had no bearing on the occurrence of the 2001 accident, but the damage sustained in the latter was greater because of that sustained in the former. In these circumstances, the first defendant is liable for any additional damage resulting from the second accident arising from the underlying injuries sustained in the first.

54. This requires me to determine the likely damage the 2001 accident would have caused in the absence of the 1987 accident. The effects of the 1985 and 1993 accidents are not to be disregarded for this purpose. The rifle-range accident would, I find, have left the plaintiff slightly more vulnerable than she would otherwise have been, thus moderately increasing the damage she would have suffered from the 2001 accident. It does not seem to me that the effects of the 1993 accident would have had any part to play by 2001.

55. Expert medical opinion ranged as to apportionment between the two accidents from 70:30 to 30:70. These opinions were by way of an attempt to apportion responsibility in terms of the contribution of each accident to the plaintiff's injuries, both at the time of the assessment and looking into the future. I have taken the opinions into account and found them helpful, though not determinative.

56. Had the 1987 accident not occurred, I find that the 2001 accident would have caused the plaintiff some degree of disability for a time, but would have been much less serious than it proved to be as an aggravation of the 1987 accident. The 1987 accident involved a very significant impact and I accept that it was responsible for the displacement or herniation of the C4-5 and C5-6 discs. The 2001 accident was a low-speed bump from behind, causing the car to jolt forward and the plaintiff to be thrust forward, back and forward again, restrained by the seatbelt. The 2001 accident undoubtedly aggravated the pain in her low back, which was conceded to be causally unrelated to the first motor vehicle accident, and I find it would have had this effect whether or not the plaintiff had been involved in the first accident. It is unlikely that without the history of pain associated with the 1987 accident, the plaintiff would have developed depression as a result of the second accident. If the first motor vehicle accident had not occurred, the plaintiff would probably have suffered some neck pain and headaches as a result of the 2001 accident in any event. However I am satisfied that this would not have been permanent, and would have healed within a relatively short time. The 2001 accident happened more than thirteen years after the 1987 accident and almost five years before the hearing. I accept that if the first accident had not occurred, the plaintiff would have suffered some back pain for the period between the 2001 motor vehicle accident and the hearing, and that for a portion of that time she would have suffered some neck pain and headaches; by the hearing the plaintiff would have substantially recovered from any neck pain or headaches caused by the 2001 accident.

57. In Cairns v Woolworths, I found it necessary to assess: first, the plaintiff's damages caused by the first tort up to the date of the second tort; and second, the amount necessary to compensate her for additional damage caused by the second tort, to the extent that the damage caused by the second tort was greater because of aggravation of her earlier injuries. I divided the latter amount into two components: a figure representing compensation for the period from the second tort up to the hearing; the other representing compensation for the future. In that case the later accident was more significant. In this case the opposite is true: the bulk of the plaintiff's disabilities flowing from the second accident were a result of aggravation of the 1987 injuries.

58. The appropriate method of taking account of the second accident is to reduce the award of general damages for the period from the first accident to the hearing, and for the future, so as to reflect the proportion of damage the plaintiff would have suffered following the second accident but for the first, as compared with the damage she actually suffered. It seems to me that an appropriate reduction is about 5%.

59. Twenty years have passed since the 1987 accident. I accept that the plaintiff has had a headache and neck pain on most days since, and that this is likely to continue indefinitely. At times her pain has been intense and her headaches so severe as to warrant pethidine injections from time to time. I also accept that there is no effective treatment available. Her quality of life has been markedly affected, and this will be permanent. She was a very active person before the accidents occurred. It is agreed by the first defendant that by the time of the 1987 accident the plaintiff had, from a symptomatic point of view, recovered from the 1985 accident on the rifle range. Had it not been for the 1987 accident, she would have been able to carry on with a full and active life. There would have been no impediment to her continuing with the Sydney University Regiment. She may have achieved further promotion. The plaintiff has succeeded in spite of her pain and disabilities, where others might not have done so. An appropriate amount for general damages, after allowing for the 2001 accident, is $80,000.00, of which I apportion 60% to the past and 40% to the future. On the past component, I allow interest of $20,000.00.

60. Past loss of earnings is agreed at $7,650.54, the gross sum paid by Comcare, which includes the recoverable income tax (Fox v Wood) figure.

61. Counsel on both sides made submissions as to the relative liability of the first and second defendants for the probability of the plaintiff's retirement before the age of sixty-five. It seems to me that the appropriate method of compensation in this regard is by way of a generalised amount calculated without recourse to any exact mathematical formula. The plaintiff is a highly motivated and determined person. If she does not suffer further injury or illness it is likely that she will work to her full term, even if her disabilities become a little worse over time. She sees herself as the breadwinner of her household. She is undertaking further study to improve her position at work. Expert opinion varied as to the likelihood of an early retirement. Counsel for the plaintiff submitted that there was a 30% chance of early retirement. I have taken the opinions of the various doctors into account and, on all the evidence, I think that 30% is too high. Also, it does not assist me in knowing at what time over the remaining twelve years of her working life that retirement might occur. I am satisfied that if she had had neither of the accidents in issue she would have worked until sixty-five years of age. I am further satisfied, in accordance with the principles explained in Oakley, that if the first accident had not happened she would have been extremely unlikely to retire because of her injuries in the 2001 accident alone. It follows that the first defendant is not entitled to any reduction in relation to compensation payable for loss of future earning capacity on account of the 2001 accident. At the time of hearing, the plaintiff was working at Executive Level 2; a payslip was in evidence, and it was agreed that her current net salary was $67,366 per annum.

62. I award $60,000.00 for loss of earning capacity for the future. This is approximately equivalent to 10% of the present value of a capacity to earn $1300 a week for twelve years, using the 3% tables, less 15% for the usual vicissitudes.

63. Initially, counsel for the plaintiff submitted that a loss of sick leave credits should be included in an award for loss of future earning capacity; however he accepted that the loss would be compensable only if there was a likelihood of the plaintiff exhausting her sick leave credits before retirement. Her payslip shows that she had accrued, as at 22 February 2006, 1,575.35 hours of personal leave; this amounts to over forty days of full-time leave. I think it unlikely that the plaintiff will use these hours, in addition to those she accrues in the meantime, before retirement. Accordingly I make no specific allowance for loss of sick leave credits.

64. There is a significant Griffiths v Kerkemeyer claim made by the plaintiff in respect of assistance rendered by her husband, daughter and son-in-law, and also by her friend Ms Frey. Having heard Ms Frey's evidence, I do not think that much of her assistance is properly to be characterised as recoverable. The plaintiff and her husband both worked full-time, and it would appear that, at least in the initial period following the 1987 accident, Mr Hunt was often away from home on weekends. When he retired in 2001, the plaintiff became the sole breadwinner. In these circumstances, it is to be expected that he would be available to do the majority of domestic chores, even if the plaintiff were not disabled. Her daughter and son-in-law live at the Murrumbateman property in a self-contained unit and would likewise, I expect, have assisted with domestic chores to a limited extent in any event. It seems to me from the evidence that since the 1987 accident the plaintiff has continued to do housework, requiring some assistance on days when her headaches or neck pain become acute. I am satisfied that even on relatively good days the plaintiff has required some level of assistance with tasks requiring her to reach above head height. She also needs to be driven to and from appointments when she requires a pethidine injection, no more than once per month. Since the 2001 accident her need for assistance has increased. It seems to me that an amount of $40,000.00 for the past and $40,000.00 for the future is appropriate to compensate the plaintiff in respect of domestic assistance. On the past component I allow interest of $30,000.00.

65. Comcare made payments in respect of expenses for the period between the 1987 accident and the 2001 accident in the sum of $17,027.85. Over the same period, the plaintiff paid $4,843.05 out of her own pocket for treatment expenses. I allow interest on that sum of $4,000.00. Comcare treated all expenses following the 2001 accident as being caused by that accident. This amount by the time of hearing was almost $30,000.00. The plaintiff recovered this amount as part of her settlement with the second defendant. Additional expenses of $5,260.00 were incurred by the plaintiff, but not paid by Comcare. It was submitted by counsel for the plaintiff that this should be divided equally between the two defendants. I accept that this is reasonable and award $2,630 in this regard, plus interest of $700.00. The total amount for past treatment expenses is $24,500.90 plus interest of $4,700.00.

66. For the future, the plaintiff claims $103 per week: $15 per week for Mersyndol Forte; $20 per week for Lyrica; $13 per week for visits to her general practitioner; and $55 per week for massage. A 3% multiplier of 787.9 for twenty years, less 15% for vicissitudes, produces a figure of approximately $69,000.00. This seems to me to be a conservative claim and I adopt it subject to some reduction. Despite counsel for the plaintiff agreeing at the hearing that an appropriate reduction for the second accident would be fifty percent, I do not accept that this accords with the Oakley analysis adopted thus far in this judgment. It seems to me that the majority of treatment expenses for the future are causally related to the first accident, the second causing a significant aggravation thereof. I therefore reduce the amount by a further 10% to take account of symptoms the plaintiff may have suffered following the hearing in respect of the 2001 motor vehicle accident, if the first had never occurred. I award $62,100.00 for future treatment expenses. There was a claim for the cost of future Botox injections and occipital nerve blocks. On the evidence I think it highly unlikely the plaintiff will undertake either. The small possibility of her requiring one or the other is adequately allowed for by the overall award in respect of this head of damage.

67. The total of the components is as follows:

General damages - past	$80,000.00
-interest on past	$20,000.00
Past economic loss	$7,650.54
Future economic loss	$60,000.00
Past treatment	$24,500.90
-interest thereon	$4,700.00
Future treatment	$62,100.00
Griffiths v Kerkemeyer - past	$40,000.00
-interest	$30,000.00
-future	$40,000.00
Total	$368,951.44

68. This amount appears to me to represent a proper reflection of the impact upon the plaintiff of her injuries in respect of the accident caused by the first defendant's negligence. There will be judgment for the plaintiff for $368,951.44. I shall hear the parties as to costs.

I certify that the preceding sixty-eight (68) numbered paragraphs are

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

Associate:

Date: 12 March 2007

Counsel for the plaintiff: Mr R J Mildren

Solicitors for the plaintiff: Meyer Vandenberg

Counsel for the defendant: Mr G J Lunney

Solicitors for the defendant: Dibbs Abbott Stillman

Date of hearing: 6, 7, 8 March 2006

Date of judgment: 12 March 2007