Vaughan v Smith [2007] ACTSC 45 (20 June 2007)

Last Updated: 28 July 2008

JUDITH VICTORIA VAUGHAN v PETRINA SMITH [2007]

ACTSC 45 (20 June 2007)

EX TEMPORE JUDGMENT

No. SC 41 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 20 June 2007

IN THE SUPREME COURT OF THE )

) No. SC 41 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JUDITH VICTORIA VAUGHAN

Plaintiff

AND: PETRINA SMITH

Defendant

ORDER

Judge: Crispin J

Date: 20 June 2007

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $1,148,052.

2. The defendant pay the plaintiff's costs.

1. This is an action for damages for personal injuries sustained by the plaintiff when she was injured in a motor vehicle accident at about 8.45 am on 4 May 2000. The plaintiff was a passenger in a car that was stationary on Bugden Avenue near the intersection of that street and Maughan Crescent, Fadden in the Australian Capital Territory when it was struck from behind by a vehicle registered in the name of the defendant.

2. The plaintiff's claim is based upon the allegation that the accident was attributable to negligence on the part of the defendant or her servants or agents. Liability has been admitted and I am required only to assess damages. The assessment is complicated by a number of factors, including a suggested incongruity between the apparently minor nature of the impact occasioned by the accident and the degree of incapacity that the plaintiff alleges she suffered as a consequence.

3. In her evidence-in-chief, the plaintiff explained that she had been in the front passenger seat and had bent forward and twisted to the right whilst searching through her bag, using her right hand to hold the bag open. She then saw her diary and grabbed it with her left hand. It was when doing this that she became aware of a jolt impelling her forwards and further downwards.

4. The plaintiff said that she did not know what had happened at first, but that her husband, John, told her that they had been hit by another car. She said she was "sort of a bit dazed really" and it wasn't until a few minutes afterwards that she became aware that her neck was hurting, that she was getting a headache and she had numbness around her mouth and the tip of her tongue.

5. In cross-examination, she agreed that she had been involved in a minor car accident. It was put to her that it was in fact so minor that, until her husband had told her that someone had hit her car, she had not even been aware of what had happened. She responded by saying, "I didn't know what happened, that's right". She said that she had observed no discernable damage to the rear of her husband's vehicle and that, whilst she had noted that there was some damage to the front of the vehicle behind her, it had some strapping around it and that appeared to be consistent with the damage having been caused in an earlier incident.

6. After the drivers had exchanged particulars, she proceeded to the offices of the Department of Health and Aged Care where she worked as a policy officer. The headache subsequently increased and she found that her neck was quite sore. The Deputy Secretary of the Department noticed her condition and arranged for her to be taken to hospital by ambulance. She was kept under observation for about six hours before being released with analgesics and other medication.

7. She claimed that the pain in her neck persisted and that she subsequently developed a burning pain in her arm. The pain has continued since that time and she has been obliged to take very substantial doses of strong analgesics. She has also developed other disabling symptoms, including depression and an inability to maintain concentration.

8. These symptoms persisted and she felt unable to sustain her employment. She left the department for the first time on or about 6 March 2001.

9. Whilst she had been employed by the Department for little more than a year, she had apparently been a valued employee and it sought to facilitate her return to work on a part-time basis by a range of measures, including the provision of voice activated software for her computer. Regrettably, this proved to be unsuccessful. Whilst it was common ground that the department did everything that it could reasonably have done to enable her to return to work, she maintained that the voice activation software was "dreadful". She said that she had tried very hard to train the system, but had found it difficult to concentrate, stay focused and to remember what commands she had to give it. She also said that when she was tired or in pain her voice could get "croaky" and that the computer would not then recognise it. She had found this very frustrating. She said that she was unable to sustain her employment on this basis and again ceased work in or about March 2001. She attributed her difficulties substantially to her inability to maintain concentration.

10. She also experienced difficulties in managing housework and had to look to her husband and daughter for assistance.

11. A battery of tests have been administered over the years in attempts to find the underlying cause of the symptoms, but without producing any objective evidence of a disabling injury or condition.

12. Medical practitioners called to give evidence on her behalf have suggested various conditions, but the majority have accepted that, whatever the precise aetiology, her complaints of continuing pain have been genuine and that she has been disabled from working, at least on a full-time basis, though she is now undertaking a counselling course and that might ultimately lead to her return to the workforce, albeit in a different capacity. In particular, I accept evidence given by Dr Speldewinde that, although the accident has not caused neurological damage, it has caused impaired function of the nervous system.

13. The plaintiff's case was not only supported by the medical practitioners who gave evidence on her behalf, but also by evidence from her husband who confirmed that since the accident he had had to undertake more duties around the house and, in particular, that he did the majority of the housework in relation to cleaning, vacuuming, washing and ironing and sometimes cooking the dinners. He said that before the accident the plaintiff would have done the majority of the work around the house.

14. Despite this evidence, the plaintiff's case has been challenged on a number of bases.

15. First, it has been contended that the accident was so minor that it could, in reality, have amounted to little more than a touching of bumper bars, and the impact so generated could not have accounted for any injury of sufficient severity to have produced the claimed symptoms. This is said to be demonstrated by the plaintiff's concession that she had not known what had happened until her husband told her that the car in which they had been travelling had been hit by the car behind. In other circumstances this evidence may have been compelling. It should be noted, however, that the plaintiff claimed to have felt a jolt and been impelled forwards. She said that she then felt dazed. It was within this context that she said she had not known what had happened until her husband told her. In essence, I think, that she was merely agreeing that, whilst she had felt the impact and its effect on her, she had been dazed and unaware of what had caused it until her husband provided the requisite explanation.

16. There was evidence that the car in which she had been travelling had been fitted with a tow bar and that might provide some explanation for the lack of damage to the rear. The other car had some damage to the front but, as I have mentioned, that may well have been attributable to an earlier accident. If there was any fresh damage then neither the plaintiff nor her husband noticed it.

17. The evidence also revealed that when her husband reported the accident to the police, he said that no one had been injured. Since the plaintiff had previously spent some hours in hospital on the day of the accident and it was reported only about five days later, I do not attach much weight to this statement.

18. Nonetheless, in all of the circumstances, I accept that the accident was so minor that one would not have expected a person in the position then occupied by the plaintiff to have suffered any significant injury. However, the fact that something may have been unexpected does not, of course, demonstrate that it did not occur, and despite the reference to an overseas study in Professor Gibson's report, the evidence does not enable me to form any opinion as to the minimum amount of speed at which the other vehicle would have had to have been travelling for the impact to have caused injury capable of producing her claimed symptoms.

19. As previously mentioned, the plaintiff had been leaning forward at the time of the collision, and whilst Professor Youssef, who gave evidence for the defendant, suggested that this should have reduced rather than aggravated the risk of injury, I think that much would have depended upon the particular geometry of force transmitted to her spine. The evidence does not, of course, enable that to be determined with precision. Nonetheless, I accept Dr Speldewinde's evidence that she may have been exposed to added risk by reason of having twisted to the right immediately prior to the impact.

20. Second, it was submitted that medical evidence adduced in support of the plaintiff's claim was dependent upon diagnoses based only upon the history she had recounted and, to some extent, the impressions that practitioners had formed as a result of watching her reactions to stimuli during the course of their examinations. I accept that the diagnoses were substantially dependent upon the credibility of the history so provided.

21. Third, it has been contended that her credibility has been undermined by a number of matters. For the present purposes, I think it is unnecessary to examine every point raised by counsel for the defendant, though I have carefully considered all of the points made in the thorough written submissions which they provided, and in the further submissions made orally by Mr Deakin QC. I should, however, mention some points that I regarded as being of particular potential importance.

22. The plaintiff had clearly failed to disclose a pre-accident history of depression, work related stress and neck pain. It was argued that this failure revealed a lack of candour and that it raised doubts as to the truthfulness of her evidence generally. I must say that I had the opportunity of assessing the plaintiff's cross-examination by reference to her demeanour in the witness box during a searching cross-examination ably conducted by Mr Deakin, who is a very experienced senior counsel, but that she nonetheless impressed me as a generally honest witness. On the other hand, I think that, whilst she was not deliberately exaggerating, her perception of the current level of her pain and physical disability may have been influenced by prolonged depression and pessimism. More than six years had elapsed between the accident and the time she came to give evidence and, if her account of the relevant events is accurate, one would have expected her to have seen the intervening years as characterised by pain, depression and other disabilities. In these circumstances it would have been natural for her to have looked back at the earlier years, if not through rose coloured glasses at least through the prism of her more recent experience, and remembered being comparatively well and happy. It is, I think, understandable that her understandable preoccupation with her recent problems may have caused her to have overlooked or even completely forgotten some earlier problems during periods which, in hindsight, she may have come to remember as relatively halcyon.

23. Her earlier failure to make similar disclosures when she applied for her position in the public service could not, of course, be similarly explained. This did cause me some concern, but I noted her reaction when this issue was raised with her in cross-examination and am inclined to accept that she may have that thought that the earlier problems had not been of any real significance. In any event, whilst such non-disclosure is clearly relevant to any assessment of her credibility, it occurred in early 1999 and I concluded that it did not require the rejection of the sworn evidence that she gave some years later. On the other hand, I did not find her a wholly accurate historian. In particular, I note that the history revealed in her general practitioner's notes suggests that she may well have been more vulnerable to stress than might have been evidence from the history she had provided to some medical specialists.

24. The defendant also relies upon medical opinion to the effect that neither the tests undertaken during the years since the accident nor the physical examinations undertaken by the doctors who examined the plaintiff upon the defendant's behalf have revealed any objective evidence of a physical injury capable of accounting for her symptoms. That is true, but the absence of such evidence does not establish the absence of injury.

25. Professor Youssef went further, suggesting that some of her apparent responses to pain were inconsistent and that he would have expected some muscle wasting had she been as disabled as she claimed. On the other hand, Dr Speldewinde explained that, with a pain condition, a patient's presentation may vary from hour to hour and that he would not have expected muscle wasting. I also note that Dr Youssef's perception of inconsistent responses to pain were not echoed in the reports of other medical practitioners who had examined the plaintiff at the request of the defendant.

26. In fact, there is considerable support for the claimed disability, not only in the reports of medical practitioners who treated or provided medico-legal reports for the plaintiff, but also in the reports of Dr Scarrabelotti and Dr Harvey Sutton, who provided medico-legal reports for the defendant.

27. Despite the arguments ably advanced on behalf of the defendant, I am satisfied, on the balance of probabilities, that the plaintiff was injured in the accident and that, as a consequence, she genuinely suffers from the symptoms she has described.

28. I suspect that her own perceptions of her pain and disability are still coloured to some extent by her depression and pessimism and I am not satisfied that she is permanently incapacitated. I also note the opinion of Dr Harvey Sutton that the condition could have been expected to have resolved within five years of when he saw her in October 2004. That may be somewhat optimistic, but the plaintiff bears the onus of proof on the issue, and I am not satisfied that she will never be able to return to the workforce. Furthermore, I see no reason to suppose that she will be unable to complete the course that she has already commenced and ultimately qualify as a counsellor.

29. It was submitted that she could have commenced this course much earlier and an early report by Dr Corry certainly mentions that she had intended to do so. Mr Deakin noted that she had not suggested that her level of disability had changed and suggested that, if she could do it now, she could have done it then. Despite the apparent logic of this contention, I accept her evidence that she had not felt well enough to undertake the course at that stage. Whilst her evidence on this issue was not entirely clear, I accept that in the years immediately following the accident she simply could not bring herself to do so due to the level of her pain and depression and her difficulties in concentrating, but that she has since made some emotional adjustment to these problems and, as she said in evidence, has realised that she needs to have something to look forward to. Accordingly, I am not prepared to find that she unreasonably failed to mitigate her own damage by pursuing that course at an earlier time.

30. It is, I think, clear that her pre-accident career has been effectively destroyed by disabilities arising from the accident. She is currently 44 years of age and, whilst her condition may improve when the litigation is resolved, I think it is likely to be at least some years before she will be able to resume substantially full-time employment.

31. At the time of the accident she was employed at the APS 6 level of the Commonwealth Public Service and there was evidence from Ms Fitzgerald to the effect that she had good prospects of promotion to the EL1 level. Ms Fitzgerald said that the plaintiff was a highly competent officer at the APS 6 level and that she had previously worked at a higher level. She had good communication skills, written skills and project management skills and, Ms Fitzgerald explained, she had the ability to not only put forward a brief or policy proposal that was evidenced-based, but was also aware of the need to give the government the evidence in ways that would be "palatable to them". Ms Fitzgerald said that she was very skilled at that.

32. It may be disturbing to note that promotion to the more senior ranks of the Commonwealth Public Service may be influenced by a demonstrated capacity to say things in a manner likely to prove palatable to political leaders, rather than by the provision of fearless advice, as expected from earlier generations of public servants. Nonetheless, there is no reason to doubt Ms Fitzgerald's evidence as to the plaintiff's prospects of promotion.

33. On the other hand, I am obliged to take into account the fact that the plaintiff's pre-accident health was not as robust as she had claimed. It may not have had any immediate influence on her promotional prospects, because the departmental officers who gave evidence on this issue were presumably unaware of it. They certainly expressed no concern about her capacity to do the work involved in her then present position, or a position at the EL 1 or even EL 2 level. I am satisfied, on the balance of probabilities, that she would have been promoted to the EL 1 level at some time prior to this, but I am unable to find just when that would have occurred. Nonetheless, the previous history suggests that she would have been vulnerable to work related stresses and she was unable to point to a reassuringly long history of sustained employment at such levels. In these circumstances I think I am obliged to make a greater allowance for the vicissitudes of life than would ordinarily be appropriate. While the plaintiff gave evidence that she had intended working to age 65, she had earlier said that she would have worked only to age 58, and given her previous state of heath that seems more plausible. I am also obliged to take into account the likelihood that the symptoms will abate with time and that she will return to the workforce at some stage in some capacity.

34. I allow general damages in the sum of $90,000. I allow interest on the component of general damages referable to past pain and suffering, which I assess at $60,000, at the rate of 2% per annum for 7.13 years. That amounts to $8,556.

35. I allow past treatment expenses of $70,144.75 and I allow interest on those payments that were made by the plaintiff in respect of those expenses in the sum of $1,199.60.

36. There has been extensive evidence concerning future out-of-pocket expenses. I allow the sum of $433 for attendance upon a general practitioner once every six weeks at $50 per visit. I allow attendances upon Dr Speldewinde at the rate of $106 per consultation three times a year. That amounts to $318. So far as pharmaceutical expenses are concerned, I note the submissions concerning the application of the Commonwealth safety net, but accept that the plaintiff will, in addition, incur an expense for Neurontin amounting to $106.10 per month, or $1,273.20 per annum. In all, I allow the sum of $2,239 per annum for pharmaceutical expenses. I allow the sum of $720 per annum for physiotherapy, $2,672 per annum for the clinical psychologist and pain counsellor, and $130 per annum for an exercise physiology. I am not satisfied that the amounts claimed for spinal cord stimulation and implants are warranted and I disallow them. That amounts to a total figure of $6,512.00 per annum. I am unable to determine how long this level of medication will be required. I am certainly not satisfied that the present levels will be required through the balance of the plaintiff's life. On the contrary, I think it is likely that they will begin to taper off as her condition improves and, as I have mentioned, the cessation of litigation may provide some assistance. On the other hand, some medication may need to be maintained for a longer period or even permanently. In the circumstances, I have concluded that it would be appropriate to make an overall allowance of $40,000 for future out-of-pocket expenses.

37. The sum of $27,807 is claimed for past assistance, pursuant to the principle in Griffiths v Kerkemeyer and I allow that sum. The claim was not strenuously disputed and is adequately supported by the evidence. I allow interest on that figure in the sum of $9,914. I allow a further component for future Griffiths v Kerkemeyer of $18,188. Those figures have been based, in each case, on a claimed rate of only $15 per hour which seems quite modest and for a period of five hours per week. It is, of course, uncertain how long she will need assistance in the future. It is obviously unlikely that she will require precisely five hours a week for five years and then nothing but, overall, such an allowance seems reasonable.

38. I allow a Fox v Wood component of $60,056.

39. The expert reports concerning past economic loss take into account somewhat different assumptions. The plaintiff's report suggests a net loss of income, assuming she had been promoted to EL1 on 1 July 2003, amounting to $308,357. The defendant's report suggests that on that basis the correct figure should be $273,091. The plaintiff's figure is based upon an assumption that she would have returned in due course to a full 36 hours per week workload, she having previously voluntarily reduced her hours to 32 hours per week. Given her previous vulnerability to stress, the absence of any apparent financial need to work the additional hours and evidence that the reduction to 32 hours per week would not have prevented her promotion, I am not satisfied that she would have done so. It also seems appropriate to bear in mind that some small allowance should be made for the contingency that she may have needed to have further reduced her hours at some point by reason of her health problems even if she had not sustained any injury in the accident. On the other hand, the defendant's figure is reduced by reference to an unproven assumption that she would have "purchased" a further two weeks leave per annum and incurred a further resultant reduction in income. In the circumstances I have concluded that it would be appropriate to allow the sum of $290,000 for past economic loss. I allow interest on that sum, again for 7.13 years, but this time calculated at 5% per annum. That amounts to $21,999.

40. It is also necessary to take into account the loss of the superannuation contributions that would have been made by her employer. It was agreed by counsel that that should be calculated at a rate of 16% per annum, that being the rate applicable to salaries in the Commonwealth public service. That amounts to a further sum of $46,400. I allow interest on the past superannuation loss on the same basis that I previously mentioned in the sum of $16,549.

41. So far as future economic loss is concerned, there was considerable debate as to whether I should extrapolate a present loss of earnings to a predicted retirement age, and then allow some discount on the ground of the vicissitudes of life, or whether I should merely assess an overall sum as a "buffer". It seems to me that her present career has been effectively destroyed and that it is unlikely she will be able to resume comparable employment within the public service. Furthermore, even if she were to be reinstated at some stage and proved able to cope at her former level, it is difficult to imagine that she would be able to recover the opportunities for promotion that would otherwise have been available to her. On the other hand, she is likely, at some stage in the future, to be able to develop a career as a counsellor, whether on a full-time or a part-time basis and, despite the tender of a pamphlet providing a potential range of earnings, the level of income that she might derive from such a profession cannot be predicted with any real accuracy. In the circumstances it seems to be appropriate to work on the basis suggested by counsel for the plaintiff, Mr Mildren, namely to extrapolate a figure for loss of the earnings that she would have obtained in the public service, but to reduce it by a discount to allow for the vicissitudes of life. That discount must, however, be much greater than would normally be appropriate to make due allowance for the possible impact that her pre-accident illness and disabilities might have had on her career if the accident had not occurred and the likelihood that her condition will abate in the future and she will ultimately be able to return to at least some employment.

42. The present salary for an officer employed at the EL1 rate in the public service, after deduction of tax, is $1,106 per week and the present value of that weekly rate, maintained for a period of 13.58 years to age 58 but discounted at 3% per annum is $643,692. I discount that figure by 40% to allow for the vicissitudes of life. That provides a sum of $386,215. I allow for loss of superannuation at 16% of that sum, which amounts to a further sum of $61,794.

43. That amounts to a total figure of $1,148,822 and I order that judgment be entered for the plaintiff accordingly.

Ladies and gentlemen, there may be arithmetical problems with those figures, and if so you can apply under the slip rule and I'll correct them.

MR MILDREN: There's only one error that I can immediately see, your Honour.

HIS HONOUR: Yes, what's that?

MR MILDREN: And that's probably in the way I've framed it, because remember there was discussion at the Bar table about on the first page of the plaintiff's Schedule of Damages, C2, interest on those payments paid by the plaintiff of $1,199.69?

HIS HONOUR: Yes.

MR MILDREN: They're the actual payments paid by - - -

HIS HONOUR: I see, not the interest on them.

MR MILDREN: And the interest is, in fact, $430 over the 7.13 years.

HIS HONOUR: All right, well let me correct that immediately.

I withdraw the amount I referred to in relation to interest on the amounts for treatment paid for by the plaintiff in the sum of $1,199.69. In lieu, thereof, the total figure should be $430. I think that reduces the figure to $1,148,052, but gentlemen, you might like to again check the arithmetic.

MR MILDREN: Yes, with liberty to apply, your Honour, if there are mistakes.

HIS HONOUR: Yes, liberty to apply under the slip rule when you've had a chance to find all my other errors.

MR MILDREN: Thank you, your Honour.

HIS HONOUR: All right, thank you ladies and gentlemen. In relation to costs.

MR MILDREN: We seek a normal order for costs, your Honour.

HIS HONOUR: Is there any difficulty with that.

UNIDENTIFIED FEMALE SPEAKER: I think it's unlikely your Honour.

HIS HONOUR: I order the defendant to pay the plaintiff's costs.

ADJOURNED [11.15 am]

I certify that the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 4 July 2007

Counsel for the plaintiff: Mr R Mildren

Solicitor for the plaintiff: Meyer Vandenberg

Counsel for the defendant: Mr P Deakin QC with Mr H Silvester

Solicitor for the defendant: Sparke Helmore

Date of hearing: 12, 13, 14 September 2005,

21, 22 November 2006, 18, 19, 20 June 2007

Date of judgment: 20 June 2007