Gibbs v Hoyland [2007] ACTSC 76 (4 September 2007)

Last Updated: 30 September 2008

BELINDA GIBBS v ELIZABETH ANNE HOYLAND [2007]
ACTSC 76 (4 September 2007)

EX TEMPORE JUDGMENT

No. SC 236 of 2006

Judge: Crispin J
Supreme Court of the ACT
Date: 4 September 2007

IN THE SUPREME COURT OF THE )
) No. SC 236 of 2006
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BELINDA GIBBS

Plaintiff

AND: ELIZABETH ANNE HOYLAND

Defendant

ORDER

Judge: Crispin J
Date: 4 September 2007
Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $76,290.
2. The defendant pay the plaintiff’s costs on a party/party basis up until the close of business on the 27th August 2007, and on an indemnity basis thereafter.

1. This is a claim for damages for a whiplash injury sustained by the plaintiff on 29 March 2004 when a vehicle driven by the defendant collided with the rear end of her car. Liability has been admitted and I am required only to assess damages.
2. The plaintiff was born on 7 June 1970. She left school after completing year 10 in 1986 and pursued a variety of occupations including that of a meat packer and cleaner, working on average for about 20 to 30 hours a week.
3. She commenced a relationship with a Mr Hughes in 1991 and had a daughter, Jade, in June 1993 and a son, Aaron, in March 1996. The relationship with Mr Hughes ended in 1997 and she commenced a new relationship with Mr Jones during the following year.
4. She commenced part-time work at Lowes in 1999, though during the time between the birth of her daughter and the commencement of that job she had apparently worked only for a period of about 6 weeks. The job with Lowes required her to work about 20 to 25 hours per week, although there was one period of about three months in which she had worked on a full-time basis. She found some of the work quite heavy.
5. She had a further daughter, Bronte, on 12 February 2001.
6. Later that year she hurt her back whilst moving a table with another person at work, and consulted a medical practitioner, however the injury was effectively treated, apparently with manipulation, and she had substantially recovered by the next day.
7. On 9 June 2002, she was involved in an accident when the car that she was driving collided with another vehicle on Hindmarsh Drive in Canberra. At that time she suffered a whiplash injury to her neck but she said that she had substantially recovered after a period of about six weeks.
8. She maintained that she had subsequently remained physically fit until the accident with which I am presently concerned, and during the intervening period had engaged in activities such as hiking, trampolining and going on long walks.
9. It may be that her symptoms persisted for somewhat longer than 6 weeks. I note that she told Dr Griffith that they had persisted for some months, but I accept that she had recovered well before the time of the second accident in March 2004.
10. It was suggested in cross-examination that her mother had continued to assist her with shopping until the time of the accident now in question because of continuing pain and discomfort attributable to the first accident. I accept that her mother did assist her, but accept the plaintiff’s evidence that she had substantially recovered from the earlier injuries.
11. In January 2004, she commenced a beauty therapy course at the Canberra CIT. By that time she had separated from Mr Jones and was concerned to secure her financial future and that of the children. She hoped to obtain a Diploma in Beauty Therapy after completing an 18 month full-time course, then to obtain full-time work in that industry and ultimately to establish her own business.
12. She had, however, become depressed and, in February 2004 consulted her general practitioner who prescribed anti-depressant medication. She said that this proved to be effective and she found that she was coping a lot better.
13. At the time that the accident occurred on 29 March 2004, she explained that her car had been stationary as she had been intending to turn and had to wait until the road was clear. As a result of the impact, her head, which had been turned to the right, banged onto the headrest. After she left the vehicle she began to feel stiffness in her back and had to sit down. She was treated at the scene by ambulance officers who fitted her with a neck brace before taking her to Calvary Hospital.
14. She remained at the hospital for the balance of the day and was given morphine. She also had an X-ray and a blood test before being discharged. A doctor at the hospital diagnosed a whiplash injury. He prescribed Panadeine Forte and discharged her with the recommendation that she use heat packs and rest.
15. She consulted her general practitioner on 31 March 2004. He referred her for physiotherapy and ordered a further X-ray. During the next month she had continuing head and neck pains and experienced numbness and tingling in the fingers.
16. On 1 May 2004 she returned to work at Lowes where she had been working on a part-time basis.
17. On 27 May 2004, she saw Dr Danta a neurologist, in relation to headaches and he suggested a facet joint block. She undertook this procedure apparently on 10 June 2004, and while she found the procedure excruciatingly painful, it completely relieved her pain for some time. However pain returned in due course and further injections were recommended following a review by Dr Danta in November of that year. She subsequently had a further series of nerve block injections, notwithstanding the pain she had previously experienced on the earlier administration.
18. In February or March 2005 she attained what she described as a Certificate IV in Beauty Therapy. This was a qualification that was not quite at the level of a Diploma and would not have enabled her to run her own business. She explained that she had withdrawn from the course at that level because to proceed any further with her studies would have required her to sit at a computer for extended periods and she was experiencing difficulty sitting. She maintained that this was attributable to the injuries she had sustained in the 2004 accident.
19. In April 2005 she obtained a job with Modern Skin Care working as a beauty therapist for about 9 hours a week. Shortly after that, she ceased working at Lowes because she found the work in that organisation more physically demanding than that of a beauty therapist.
20. In January this year, her hours were increased to 19 hours a week, although there have been some occasions when no work has been available. It appears that on average she has worked about 16 hours per week during this year.
21. She is hoping to obtain work on a full-time basis next year and said in evidence that but for the injuries she would have looked for full-time work earlier. She explained that her younger daughter, Bronte, commenced kindergarten in 2006, but despite not having any further need to care for children during the day, she had not felt up to working full-time because of her continuing neck pain and headaches. She conceded, however, that her neck pain had decreased during 2006 and that her headaches were now few and far between.
22. Another significant combination of events occurred at the end of 2006 when her two older children left to live with their father in Mooloolaba and arrangements were made with Bronte’s father for him to exercise joint custody, with Bronte apparently spending alternate weeks with each parent.
23. The plaintiff explained that, despite her recent improvement, there are still some things that aggravate her neck pain. These include lawn mowing, using a whipper snipper and cutting hedges. When her pain is bad she uses Panadeine Forte, but she otherwise relies upon Nurofen or Panadeine.
24. She said that she had taken the children for short walks on a couple of occasions and had some pain afterwards, though it appears that she had generally been able to cope with that activity. She has not tried using a trampoline or wrestling with children because of fears that such activities would involve a real risk of aggravating her neck pain.
25. She explained that her mother and her sister, Stephanie, continue to help her, her sister by assisting her with shopping and her mother by caring for the children. Her brother also does some gardening.
26. She has continued now for some years with what is described as Bowen therapy, which I understand to be a therapy involving the application of pressure to parts of her body. Amongst other things this has the effect of releasing muscle spasms. There was an issue in the case about whether it was appropriate for her to do so. It was initially submitted that she had embarked upon this course primarily because of a referral by her solicitor rather than by her general practitioner. It does now appear that her general practitioner had referred her for physiotherapy, though I am inclined to think that the manner of her initial referral is largely immaterial. It is certainly clear from the general practitioner’s reports that he regarded that therapy as appropriate and told her to persist with it whilst it was effective. Furthermore, in his more recent reports, Dr Danta has indicated that he regarded the present treatment as appropriate. His only suggestion was that she may also be helped by further facet joint blocks in the mid-cervical region.
27. Her general practitioner Dr Kumari reported that the plaintiff had tenderness at the C1 and C2 levels when examined at Calvary Hospital Emergency Department.
28. An X-ray report of 29 March 2004 revealed that C1 was slightly offset to the left with respect to the C2 but suggested that this was most likely due to muscle spasm or mild rotary subluxation. No fractures were seen. Further X-rays on 31 March 2004 revealed no abnormalities.
29. The plaintiff returned to the general practice surgery on 14 April 2004 with severe neck pain, headache and parasthesia down the left arm. She was noted to have reduced sensation in all dermatomes in that limb, but power in all muscle groups was normal. Diazepam, Doloxene and Panamax were prescribed and she was referred to a physiotherapist.
30. When she again presented on 19 May 2004 she provided a history of intermittent ongoing headaches which were resolved with Nurofen. She had parasthesia in both right and left arms as well as reduced sensation to pain and temperature. Dr Kumari noted, and I quote, “There is no neck pain though, which she attributes to the physio exercises”.
31. Dr Robert Hain, another general practitioner associated with the same practice provided a report on 17 December 2004 in which he referred to the earlier presentations and noted that the prognosis was uncertain. He observed that the plaintiff still had a very restricted range of neck movement, and that this was understandably causing problems at work. He expressed the opinion that the symptoms, restrictions and disabilities that she displayed were consistent with the history that she had provided of the motor vehicle accident.
32. In a subsequent report he indicated that since 17 December 2004 she had attended only on 28 March 2006 and 27 November 2006, and noted that on the former occasion she had not been able to see her physiotherapist for three weeks and that her neck had become more stiff and painful. She was prescribed further analgesics. He also made the comment that she benefits from ongoing soft tissue therapy and the Bowen therapy that had been provided by Ms Kevill and said that this should continue indefinitely on a weekly basis. He noted that she had continued to have pain and stiffness in the neck, and said that whilst the treatment did not provide a cure it did provide some relief and help her to maintain her levels of functioning.
33. Dr Danta, in an earlier report provided on 13 December 2004, confirmed that he had seen the plaintiff on 27 May 2004 upon referral from Dr Kumari and that she had then complained of headache and numbness in the arms. He said that he had not felt that the sensory findings had had an organic cause and that he had arranged for her to have facet joint blocks involving two upper facet joints on each side of the neck. That was done on 10 June 2004.
34. He saw the plaintiff again on 15 November 2004 and noted that she had told him that the earlier blocks had “abolished” the headache for four months but that they had returned about two weeks earlier. He made arrangements for further facet blocks to be undertaken. He diagnosed a post-traumatic headache and soft tissue injury to the neck.
35. In a more recent report dated 13 June 2007, Dr Danta indicated that the plaintiff was experiencing difficulty with massage in her job, presumably as a beauty therapist, and also difficulty when she works too long at a time. However, her hours had gradually been extended and she could foresee the time when she would be able to work full-time. She reporting having had difficulties with housework and mentioned that her sister had been helping out with washing and shopping, and her brother and nephew with mowing the lawns. There had been some impairment in recreational activities such as joining her children on the trampoline.
36. Dr Danta noted that on re-examination neck movements were full but there was pain at the extremes of movement, and he also noted tenderness over the middle facet joints of the neck bilaterally. He expressed the opinion that on the whole she had adjusted quite well to her symptoms and had accepted her disability. He said that it was fortunate that she could see herself improve sufficiently to be able to work full-time in the future. He responded to a number of questions specifically directed to him by the plaintiff’s solicitors, and in the course of doing so indicated that the neck pain attributable to the injuries was interfering with her work and preventing her from working as a beauty therapist full-time. He said that on the whole her prognosis was favourable, particularly as she felt that she would be able to resume full-time work in the future, however, she had had the pain for over three years and was likely to continue with some pain for a long number of years, if not indefinitely. He said that he thought that she had adapted to her symptoms and disability in a positive manner and that no psychological assessment was likely to assist her.
37. Counsel for the defendant relied upon two reports, one of which had been provided by Dr Griffith, a consultant surgeon, who had seen the plaintiff at her own solicitor’s request. Dr Griffith recounted a history of the incident and of her headaches. He went on to say that she remained symptomatic to the extent described, but suggested that there had been certain inconsistencies in the history. In particular, he suggested that the fact that “zero neck pain” had been documented two weeks after onset had been most unusual as her complaints of pain had since extended to the time of his consultation. He said that there was no evidence that she had suffered significant structural injury to the cervical spine, and that, though initial radiology had led to some suspicion that there may have been subluxation of C1 and C2, this remained unproven. There were significant psychological factors that had not been entirely due to the accident. Stressors in her domestic environment and difficulties of studying full-time, looking after her three totally dependent children, and financial strictures had conspired to produce clinical depression which had been recognised and successfully treated. She continued to have physical therapies in the form of Bowen therapies which she had maintained were effective.
38. Dr Griffith went on to suggest that there were aspects in the history which suggested significant embellishment, particularly in relation to sensory disturbances. It does appear that the comments he made as to inconsistency in the history concerning what he described as the “zero neck pain” may have been based upon a failure to fully understand the report by Dr Kumari. Dr Griffith referred to a report by Dr Danta in which he had noted that the plaintiff had had cervical pain lasting five weeks which responded to physiotherapy, and then added in parenthesis “a statement difficult to reconcile with the written statement of Dr Kumari that she had no neck pain on 19.5.04”. However, as I have already mentioned, Dr Kumari had explicitly stated that the plaintiff had attributed the absence of pain to the physiotherapy exercises and he had not suggested that this was implausible.
39. In any event, Dr Griffith did not contend that she had no injury or continuing symptomatology.
40. On the contrary, he said that he believed the plaintiff had suffered a linear acceleration/deceleration injury with her head turned to the right side as a consequence of the accident on 29 March 2004. This had resulted in “(1) contusive injury of the cervical and cervicodorsal spine with acute musculoligamentous sprain – resolved. (2) Nervous shock – resolved. (3) Rapid onset cervical and cervicodorsal myalgia (ongoing)”. He listed as sequelae “(1) Persistent cervical and cervicodorsal myalgia to date. (2) Parasthesia/sensory disturbance both upper limbs now resolved (non-organic) and (3) Aggravation of pre-existing depression (now well controlled)”. He said that the prognosis in the absence of structural injury should be excellent, though she presented a challenge in effective pain management.
41. Dr Griffith expressed the opinion that she should continue exercises to strengthen and stretch her cervical musculature, but said that it was difficult to justify unended therapy whether physiotherapy, acupuncture, chiropractic or, in this case, Bowen therapy. He expressed the opinion that she should have been able to master the techniques of this therapy, and mentioned that there was added risk of mutual dependency established between the client and the therapist. He also said the points of focal tenderness will often respond to local anaesthetic and depot-steroid given to the relevant points and said that this cost a consultation fee plus $50 per point. Whilst Dr Danta had thought that further facet joint blocks might be helpful, Dr Griffith was of the view that they were inappropriate since they had already been administered twice, and also expensive.
42. The defendant also relied on a report by Dr Max Wearne. Dr Wearne expressed the opinion that as a result of his examination of the plaintiff in May 2006 her level of symptoms and disability was “mild, if it existed at all”. His evidence was the subject of some controversy. The plaintiff gave evidence that during the course of that examination he had held her head with his hands over her ears and moved it around in a manner that she found very painful. It was suggested that the extent of movement in her neck apparently evident upon that examination may have been attributable to the manner in which it had been produced.
43. Dr Wearne was unavailable to give evidence, though he had provided a further report disputing this account. It seems unnecessary to resolve this issue. I suspect that Dr Wearne may simply have attempted to guide her head through a series of movements without realising that it was causing the pain that it did.
44. In any event, I had the opportunity of observing the plaintiff in the witness box when she was subjected to a searching cross-examination by the experienced counsel who appeared for the defendant and I thought that she was a generally honest witness, though not a completely accurate historian. That is perhaps understandable in people who have been through a period of some years with recurrent pain, depression and other personal difficulties. Having regard to the other difficulties that she has experienced in her life throughout that period, she may have come to subconsciously magnify her perception of the severity of her symptoms to some limited degree and to see the accident as the predominant source of the problems she has encountered. Nonetheless, viewed overall, I found that her description of her symptoms was reasonably reliable.
45. I accept that she has made significant progress but that she has some measure of continuing pain and may do so for some time in the future. She also has some restriction in her capacity to engage in vigorous exercise. I note that while she has made two attempts to mow the lawn and has been able to do so, albeit with breaks and at the cost of some discomfort, she has been unable to use the whipper snipper and to do some of the other work in the garden.
46. In all the circumstances, I think it is appropriate to award general damages in the sum of $50,000. I allow interest on the amount of $35,000, which is the component assessed as referable to pain and suffering she has experienced to date, at 2% per annum for a period of 3½ years. That amounts to a further sum of $2,450.
47. So far as the Griffiths v Kerkemeyer claim is concerned, it seems to me necessary to consider her evidence not only in the context of the pain that she was experiencing from her injuries, but also by reference to other potentially relevant factors, such as the fact that she was at the relevant time caring for three children unaided. It seems to me to have been very likely that other members of the family would have assisted her with her responsibilities even if the accident had not occurred. Indeed, it seems clear that assistance of various kinds had been provided to her between the time that she recovered from the 2002 accident and the time of the accident with which I am presently concerned.
48. In the circumstances, I think it is appropriate to allow a global figure of 200 hours for past and future assistance pursuant to the principles in Griffiths v Kerkemeyer, at the rate of $22 per hour, there having been no demur to the adoption of that figure. That amounts to a further sum of $4,400.
49. So far as loss of earnings capacity is concerned, counsel for the defendant argued that I should allow nothing beyond the first four weeks after the accident because the notes produced by Lowes revealed that she had returned to work on 1 May 2004 “without restriction”. On the other hand, it was submitted on her behalf that I should allow much more than that because she had clearly been inhibited in returning to the workforce after a time in 2005 by reason of the continuing pain in her neck.
50. She has some continuing symptoms though I would certainly not be able to find that they will be the source of any continuing incapacity in the future. It seems to me appropriate to make a global assessment, albeit of a somewhat arbitrary nature, to allow for what I regard as the very real likelihood that her return to work did proceed at a somewhat slower pace than would otherwise have occurred. I have ultimately decided to allow a figure of $10,000 in respect of loss of earning capacity including superannuation and including interest.
51. No question of a Fox v Wood component arises in the present case.
52. There is a claim for out-of-pocket expenses in the sum of $7,440. Whilst the accuracy of that amount is admitted, counsel for the defendant has submitted that I should not allow the full sum because some or all of the Bowen therapy was unnecessary. Having regard to Dr Danta’s evidence on this issue I am satisfied that that money was properly expended and I allow the whole sum.
53. So far as future medical expenses are concerned, it was submitted that I should make a substantial allowance for the future, though conceded that it would not be appropriate to adopt the view of Dr Hain and allow for Bowen therapy on an indefinite basis. Again, it is difficult to predict precisely the extent of the future medical expenses that the plaintiff is likely to incur. I allow an amount of $2,000.
54. That amounts on my calculations, to a total figure of $76,290 and, subject to any indication by counsel to the effect that my calculations are erroneous, I intend to order that judgment be entered for the plaintiff in that sum.

MR CROWE: May it please the court.

MR RYAN: 76 your Honour, 290?

HIS HONOUR: Yes. Should I make the usual order in relation to costs gentlemen?

[Discussion about Calderbank letters – not transcribed]

HIS HONOUR: I order the defendant pay the plaintiff’s costs on a party/party basis up to and including the close of business on 27 August 2007 and on an indemnity basis thereafter.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 21 September 2007

Counsel for the plaintiff: Mr R Crowe SC
Solicitor for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr P Ryan
Solicitor for the defendant: Sparke Helmore
Date of hearing: 4 September 2007
Date of judgment: 4 September 2007