Michelle Noble v Joshua O'Brien [2010] ACTSC 29 (9 April 2010)

Last Updated: 13 April 2010

MICHELLE NOBLE v JOSHUA O’BRIEN

[2010] ACTSC 29 (9 April 2010)

DAMAGES – personal injury – whiplash injury to neck and shoulders – injury to wrist – cartilage tear requiring surgical repair – significant reduction in earning capacity – no issue of principle

Hughes v Janrule Pty Ltd [2010] ACTSC 5

Goldsborough v O’Neill (1996) 131 FLR 104

No. SC 218 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 9 April 2010

IN THE SUPREME COURT OF THE )

) No. SC 218 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHELLE NOBLE

Plaintiff

AND: JOSHUA O’BRIEN

Defendant

ORDER

Judge: Master Harper

Date: 9 April 2010

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $502,064.00.

1. This is an action for damages for personal injury arising out of a motor vehicle collision. On 8 September 2005, the plaintiff was driving her car on Scollay Street, Greenway. She stopped at an intersection and the defendant’s car ran into the rear of her vehicle. Liability is admitted.
2. The plaintiff was born in 1968 and is aged forty-two. She has two sons, aged seventeen and nine. She separated from their father late in 2004 and has lived with her sons in a house in Tuggeranong since then.
3. She left school at the age of sixteen, before completing year 10. She worked at a bakery for about two years, following which she worked in childcare for about seven years. In 1999 she obtained part-time work with ACTION, the ACT public transport operator. She became a fulltime employee there in September 2002, and was in that position at the time of the accident. She continued her employment there for another three years, resigning in October 2008.
4. The collision was a major one. There was considerable damage to the plaintiff’s car. The damage was repaired, the repairs being covered by the plaintiff’s insurance. There is no claim for that damage in this action. The force of the impact was sufficient to push the plaintiff’s car into the intersection. She was able to drive it off the road and on to the grass verge. She felt shaken up but was not immediately aware of any injury.
5. She woke in the early hours of the following morning with pain in the neck and the right wrist. She was stiff and unable to sit up, having to roll sideways to get out of bed.
6. Her family doctor at that time was Dr Calder at the Tuggeranong Square Medical Practice. She was unable to see Dr Calder the day after the accident, and was seen by another doctor at the practice. He reassured her that she should make a recovery over the next two or three days, and recommended that she take Panadol as required. He also suggested some exercises, and gave her a certificate for time off work.
7. She attended the practice four days later and saw Dr Calder. She was referred for physiotherapy. In November 2005 she commenced a course of massage therapy. An x-ray of her neck early in December showed no abnormality.
8. The plaintiff was off work initially for a week. She returned to normal duties but struggled with her workload and required help from colleagues. Her evidence is that she gained no benefit from the physiotherapy, which continued on and off for about twelve months.
9. She was offered assistance by a rehabilitation therapist engaged by the defendant’s insurer. On her advice the plaintiff saw Dr Varghese, another general practitioner in the same practice. She had continuing pain in the right wrist, which Dr Varghese diagnosed as tendonitis. She was treated with anti-inflammatories, analgesics and heat packs.
10. By the beginning of 2006 the plaintiff’s wrist symptoms were causing her considerable pain and getting no better. She was referred for an MR arthrogram, as well as for physiotherapy. The arthrogram showed some irregularity around the distal radio-ulnar joint. There appeared to be a large effusion in the joint, with some slight dorsal subluxation of the distal ulna and a small tear in the triangular fibrocartilage.
11. The plaintiff saw Dr Chris Roberts, orthopaedic surgeon, in May 2006. She gave him a history of having injured her right wrist twenty-five years earlier while working in childcare. It was initially thought that she had fractured her wrist but no fracture was detected on x-ray. The wrist was placed in a cast for some time but she eventually made a full recovery. She told him that since her car accident, the right wrist had been becoming gradually worse. The pain was over the whole wrist. Repetitive use of the wrist, for example using a computer mouse at work, aggravated the symptoms. She had recently developed paraesthesia in the ring finger and little finger of the right hand. The wrist was swollen.
12. Dr Roberts initially recommended conservative treatment in the form of physiotherapy and bracing and strapping of the wrist.
13. He saw the plaintiff again in August 2006. There had been no improvement in her symptoms despite wearing the brace. The two fingers had developed a burning sensation. He arranged a nerve conduction study which was normal.
14. He saw the plaintiff again in November 2006. He discussed surgical options with her. Surgery was carried out in May 2007, in the form of an arthroscopic debridement of the triangular fibrocartilage and distal radio-ulnar joint debridement with wafer excision of the distal ulna. In the course of the surgery Dr Roberts confirmed a small radial tear of the triangular fibrocartilage. There was damage to the articular cartilage of the head of the ulna.
15. The plaintiff’s evidence was that following the operation, and the wearing off of the anaesthetic, she was in considerable pain. She said that there was some improvement in the early period after the operation, but that three months later her symptoms had returned to their previous level. There was no long-term improvement. She took almost six weeks off work on long service leave at the time of the operation, having already used up her sick leave credits.
16. During this period she decided to start a home-based business making scented candles. She persevered with this for about eighteen months but eventually gave it away. She sold some candles but did not make enough money to justify the activity as a business.
17. She returned to work after her long service leave, on limited duties. She found the work difficult. She was promoted early in 2008 to a newly created position looking after school bus routes and timetables. Dr Varghese reduced her hours in March 2008 to six hours a day. By mid-2008, the plaintiff was finding that the work continued to worsen her symptoms, whilst they improved noticeably during school holidays.
18. Dr Roberts saw the plaintiff again in September 2008. She continued to complain of right dorsal ulnar wrist pain, worse after using a keyboard or mouse at work. She still had burning pain into her right hand and numbness of the two fingers previously mentioned.
19. Dr Roberts told her that he could offer two surgical options: a fusion of the distal radio-ulnar joint, or an excision of the distal ulna with replacement of the ulnar head. Both were major procedures which he would prefer to avoid. He recommended that she move to a different career which would not involve the same aggravation of the wrist.
20. Dr Roberts expressed the view that the motor accident was a major cause of the vast majority of the plaintiff’s wrist symptoms. If the injury to the wrist twenty-five years earlier had caused permanent damage leading to arthritic change, it had caused absolutely no symptoms in the wrist. He thought it quite likely that the plaintiff would ultimately come to further surgery. Both the surgical procedures he had discussed with the plaintiff would leave her with some loss of movement and perhaps some weakness in the wrist, and pain with repetitive wrist movement or twisting. She would continue to require anti-inflammatory medication, analgesics and physiotherapy from time to time, with occasional bracing of the wrist, and the possibility of future surgery. Her arthritis might progress gradually over time. The plaintiff’s evidence is that Dr Roberts told her that he would not recommend surgery for about another twenty years, or at age about sixty.
21. The plaintiff considered the advice she had received from Dr Varghese and Dr Roberts, and decided to resign from her public service position. She used her remaining sick leave and finished with ACTION in October 2008.
22. In February 2009 Dr Varghese referred the plaintiff to Dr Keith Chan, a specialist in rehabilitation and pain management. The plaintiff told Dr Chan that she had ceased her massage and other treatment in October 2008 because she could no longer afford it and the defendant’s insurer had “closed the case”. She had not experienced any improvement in her symptoms since giving up work. Dr Chan made some suggestions as to medication which might relieve the plaintiff’s symptoms, and also suggested, to investigate the possibility that her neck pain originated in her cervical facet joints, that she undergo medial branch nerve blocks under fluoroscopy with a view to treating her with radiofrequency neurotomy. He warned the plaintiff about the possibility of complications including nerve damage, and she decided not to proceed with these investigations.
23. In March 2009, at her own expense, the plaintiff attended a course at Beechworth in Victoria conducted by Heal Your Life Seminars Pty Ltd. The cost of the course was $3,495.00. The purpose of the course was to train the plaintiff to conduct workshops in Canberra, as a business from which she could earn income. She had found the course very beneficial, and had started a business with another woman she had met through the course, but by the time of the hearing the business had not made a profit. The plaintiff explained that the intention was that in the course of the workshops, through meditation and discussion, those attending would identify negative beliefs and turn them into positives, dealing with aspects of their personalities which were standing in the way of their personal development. She said that her results at the personal level had been very good. She was considering enrolling in further courses to increase her skills in the area.
24. After she returned from the workshop, the plaintiff started part-time work with a childcare centre, working for twenty hours a week. She was engaged in this work at the time of the hearing and expressed an intention to continue with it. The work involved about three hours a day four days a week, operating a computer. This left her with some pain in the wrist and some neck and shoulder pain. She took painkillers and wore a wrist guard.
25. The plaintiff’s evidence was that she would persist with the Heal Your Life business but would discontinue it if it did not work out financially. She proposed to continue with her part-time childcare job but could not cope with full-time work of that kind. She would be quite unable to cope with a clerical job and had no intention of looking for work similar to the public service job she had given up in October 2008.
26. Her condition had interfered significantly with her social and recreational activities. She had been unable to continue with aerobics and a gym program. Her sleep was interrupted, particularly if she had overdone things physically during the day. This still happened about once a month. Her social activities had been greatly reduced. She did not feel like going out. By the time of the hearing she was continuing to take some prescription and some non-prescription medication as needed.
27. The owner of the childcare centre had talked to the plaintiff about her intention to retire. They had discussed the possibility of the plaintiff taking over the business. She would require further qualifications, which would take her some eighteen months to complete. The plaintiff said that she was giving the possibility some consideration, but doubted whether she would be able to cope with the duties on a full-time basis. She thought she would also find difficulty with the amount of interstate travel which would be required.
28. The plaintiff saw a number of specialist medical practitioners not involved in her treatment but engaged to provide opinions for the purposes of her claim. In December 2006, that is a little over a year after the accident and six months before her wrist surgery, she saw Associate Professor Robert Oakeshott, a consultant surgeon with significant professional qualifications in rehabilitation medicine. Dr Oakeshott practises as part of a Sydney medico-legal group of specialists. He formed the view that the motor accident had been a relatively minor incident, and that the damage to the plaintiff’s right wrist which appeared from the radiological reports was more likely to be a result of her injury twenty-five years earlier. He found no indication for surgical intervention, or indeed any objective evidence of any physical injury or underlying pathology to any part of the plaintiff’s body, including her neck, shoulders and right wrist, that could be attributed to the car accident.
29. I note that one of the plaintiff’s treating doctors, Dr David Hughes, a sports physician, saw her at about the same time, and again in March 2007. He accepted that she had sustained a whiplash injury in the motor accident, but thought that she was making a good recovery and was optimistic about her future.
30. Neither Professor Oakeshott nor Dr Hughes saw the plaintiff again. Regrettably, it appears that their optimism was not borne out by events.
31. Professor Oakeshott’s opinion about causation is at odds with the rest of the expert medical evidence. I prefer the opinion of Dr Roberts about the wrist injury and the causal link between the motor accident and that injury. The plaintiff had no memory of damaging the wrist in the accident itself but it seems likely that she was holding the steering wheel in a braced position. She saw the defendant’s vehicle coming from behind her too fast, in her rear vision mirror, and probably braced for impact. The wrist may have been vulnerable because of the previous injury but there is no challenge to her evidence that she had no symptoms in the wrist immediately before the car accident, nor is there any medical opinion that any underlying damage might have given rise spontaneously to symptoms at some time in the future if the car accident had not occurred.
32. The plaintiff’s solicitors had her assessed by Dr Graeme Griffith, a Melbourne medico-legal consultant surgeon. Dr Griffith saw the plaintiff in Canberra in January 2007. He spent 105 minutes with her. He took a detailed history and conducted an extensive physical examination. He took the view that the wrist injury in the 1980s and a brief episode in 2005 gave rise to a very low likelihood of any continuing pathology by the time of the car accident. From his experience, almost invariably individuals placed in the situation of the plaintiff instinctively brace themselves on the wheel immediately prior to impact. A collision of the kind described gave rise to a considerable acceleration force and an instantaneous application of energy more than sufficient to produce the injury to the wrist joint which the plaintiff had suffered. His opinion was that the pre-existing wrist injury was of no consequence to the plaintiff’s condition. He also took the view that the symptoms of which she complained in the right shoulder were suggestive of soft tissue injury, most probably to the subacromial bursa and possibly to the cuff, with a suggestion of a painful arc syndrome. Dr Griffith accepted that the plaintiff had continuing persistent cervical and cervicodorsal myalgia with associated occipital neuralgia. There was evidence of possible bursitis in the shoulder. She had post-traumatic right wrist arthralgia associated with partial disruption of the triangular fibrocartilage, and early post-traumatic arthritis of the distal radial ulnar joint, confirmed by bone scan. In his opinion she also had persistent left fourth sternocostal arthralgia, and a chronic adjustment disorder with elements of depression, anxiety and cognitive dysfunction. She was unlikely to improve significantly in the short or medium term.
33. Dr Griffith made some suggestions as to possible options for treatment of the neck, right shoulder and right wrist, but as he had not been engaged in a treating capacity it appears these were not followed up. They may not have been conveyed to the plaintiff’s treating doctors.
34. Her solicitors also referred her to Dr John Bentivoglio, a Sydney orthopaedic surgeon, who examined her in December 2007. He was provided with copies of medical reports. He took a history and conducted a physical examination. He saw her some six months after her wrist surgery. He thought that she had a small chance of developing degenerative osteoarthrosis in the distal radio-ulnar joint at a later stage. He did not think that her wrist symptoms had been contributed to by any of the injuries or symptoms prior to the car accident, and thought that all of her continuing symptoms were consequent on that incident.
35. He accepted that she had suffered a soft-tissue injury to the neck and thought it likely that she would continue to experience some degree of symptoms in the foreseeable future and perhaps indefinitely. Further investigation and treatment were not indicated. He thought that her shoulder symptoms were probably referred from the neck. He said that she should avoid activities requiring her to remain in the same position for prolonged periods, for example clerical or computer work. He took the view that she would need to continue taking anti-inflammatory medication and painkillers intermittently in the future.
36. The defendant’s solicitors arranged for the plaintiff to be assessed by Dr Sam Perla. Dr Perla is a medical practitioner with qualifications in occupational medicine. The plaintiff attended his rooms in Sydney in January 2010, a few weeks before the hearing. Dr Perla found on examination that the plaintiff had a full range of movement in both shoulders. She had in his opinion sustained a whiplash injury to the cervical spine with referred pain into both shoulders, and she had “more than likely” sustained a right wrist injury in the form of a small tear of the triangular fibrocartilage. His opinion was that she did not require any further treatment. He expressed the view that she was fit for full-time work as an administrative assistant or a childcare worker. He was influenced in arriving at this view by the fact that although the right wrist was swollen on examination, it was not tender to palpation and there was no restriction of movement. He was also influenced by the fact that the plaintiff had been able to work full-time from soon after the accident until October 2008. He said that the earlier osteoarthritis in the right wrist emerging from the radiological reports “would be consistent with her age group.” Perhaps a little inconsistently with his other conclusions, he said that her prognosis remained guarded given the chronicity of her symptoms. Any continuing disability was causally related to the motor accident.
37. I found the plaintiff to be an honest and genuine witness. Counsel for the defendant did not submit otherwise. By the time the action came to trial, some four and a half years had passed since the accident and the plaintiff’s recollection of events was less than perfect on some matters of detail, as it was to a greater extent for events in the more distant past. This was not something which affected her credibility, and indeed it would be unusual for it to be otherwise. I generally accept the plaintiff as a witness of truth and accept her evidence as correct.
38. As is frequently the practice in cases of this kind, all of the medical evidence was tendered in report form. There was no opportunity for cross-examination, despite the differences of opinion between some of the experts. I adverted to this phenomenon in Hughes v Janrule Pty Ltd [2010] ACTSC 5 at [89] where I referred to remarks on the same issue by Miles CJ in Goldsborough v O’Neill (1996) 131 FLR 104. I assume that the various witnesses would have adhered to their opinions if cross-examined, and draw no adverse inference against either party by reason of their declining to take the opportunity to cross-examine.
39. The opinion of Associate Professor Oakeshott would be of little assistance, considering that he saw the plaintiff on only one occasion, more than three years ago and prior to her surgery. Even at that time, his opinion seems far removed from that of the majority of the experts. Where his opinion is inconsistent with other witnesses, I am not inclined to accept it.
40. I accept the evidence of Dr Roberts, a Canberra orthopaedic surgeon with particular experience, expertise and standing in his profession in relation to hand and wrist injuries. Of the specialists who were qualified purely for medico-legal opinions, I generally accept the evidence of Dr Griffith and Dr Bentivoglio. I accept Dr Perla’s opinion as to causation but not his opinion as to the plaintiff’s working capacity. That opinion was based on a single appointment and is inconsistent with the evidence which I accept from the plaintiff herself as to her capacity.
41. In relation to working capacity and physical capacity generally, I take account of the plaintiff’s evidence that in July 2009 she was referred by the defendant’s insurer for a functional capacity assessment carried out over a period of about a day in Sydney by Mr Tony de Giovanni and the staff of his practice. I accept that the defendant chose not to serve the report which resulted from that assessment, and I draw the available inference that the report would not have assisted the defendant’s case.
42. It is agreed that the plaintiff has incurred expenses, reasonable in amount, of $36,014.00, mostly for treatment. The bulk of this sum has been reimbursed to her, or paid to the treatment providers direct, by the defendant’s insurer. As to the rest of the treatment expenses, I am satisfied that the amounts claimed are recoverable in the action. Counsel for the defendant did not submit otherwise with any force. The one amount claimed which is in contention is the amount of $3,495.00 paid by the plaintiff as the fee for the course which she attended at Beechworth with the Heal Your Life organisation. I am satisfied that the plaintiff would not have attended the course and hence would not have incurred this expense if it had not been for the injuries she suffered in the motor accident. I am satisfied that her decision to attend the course was a reasonable one, motivated by a decision to gain a qualification which she thought would increase her income-earning capacity and might also help her to cope at a personal level with the physical and psychological sequelae of the accident. It was in my opinion reasonably incurred and is recoverable.
43. The plaintiff is entitled to recover $36,014.00 for past out-of-pocket expenses, plus interest at the prescribed commercial rate of 9% per annum on the portion of that amount which she has paid herself. I allow $1,400.00 for that interest component.
44. For the future, the plaintiff claims the present value of the amount she will spend on medication over the years, with an allowance for the chance that she will decide, perhaps in about twenty years, to undergo an arthrodesis, or perhaps some other kind of surgery which may be available by that time, to the right wrist. She also asks that the amount allowed for future expenses include a component for further training courses she may decide to participate in, through the Heal Your Life organisation or similar outlets. It is not possible to calculate mathematically a sum to cover all of these matters, I take account of the plaintiff’s age, and of the 3% present value actuarial tables which would be applicable if a mathematical approach were possible. I propose to allow $25,000.00 for future expenses.
45. Senior counsel for the plaintiff in submissions put forward calculations in respect of past loss of earnings, including the loss of the value of the plaintiff’s long service leave when she took that leave after her wrist surgery in mid-2007, and her loss of earnings from October 2008, calculated as the difference between what she would have earned if she had stayed in her job with ACTION and what she has earned. Extrapolating those figures to take account of the short period since the hearing, and rounding the figure, I allow $50,000.00 for past loss of earning capacity, plus interest of $3,300.00.
46. In the submission of senior counsel for the plaintiff, the most significant component of the award of damages by far is the amount to be allowed for loss of earning capacity for the future. Counsel has calculated the potential loss based on the current wage differential to age sixty-seven at almost $400,000.00, and submits that I should allow $300,000.00 to take account of the general vicissitudes of life and the particular imponderables of the present case. Counsel for the defendant submits that such an award would be far too high.
47. This is not a case where an accurate projection can be made of what lies ahead for the plaintiff during the many years of her remaining working life, or what she might have done had it not been for the car accident. I am satisfied that her injuries have resulted in a very substantial impairment of her then existing earning capacity. I allow $220,000.00 for that head of damage.
48. Counsel are agreed that I should allow 9% of the amount awarded for loss of earning capacity, past and future, (though not including the interest on the past component). I allow $24,300.00 for loss of superannuation benefits past and future.
49. The plaintiff claims damages for the commercial value of the services provided by her son and other family members. Although counsel acting for plaintiffs regularly adduce evidence about the provision of such services with an aura of precision, it is common knowledge, and something of which I can take judicial notice, that such tasks around the house are carried out over different periods on different days, often intermingled with other activities being carried out by the providers which do not have the same character. Some people take longer to perform such services than others. For example, many men will on balance take longer to perform some household tasks than many women, and teenage children may perform some such tasks more slowly again. Evidence about these matters can in realistic terms do little more than provide the Court with a general flavour of the difference which has been made to the allocation of tasks within a family following injury.
50. I propose to allow $18,000.00 for the past Griffiths v Kerkemeyer component, plus interest of $3,650.00. For the future, I allow $15,000.00.
51. At my invitation, counsel for both parties made submissions as to an appropriate award for general damages. In the event, the ranges were about the same (and as it happened, I am satisfied that both counsel put ranges to me without knowledge of the range to be put by the other side). For general damages for pain and suffering and loss of enjoyment of life I award $100,000.00. I apportion $60,000.00 of that sum to the past, and allow $5,400.00 interest on it.

52. The total of the individual components is:

General damages:	$100,000.00
Interest on past component	$5,400.00
Out of pocket expenses:
Past	$36,014.00
Interest thereon	$1,400.00
Future	$25,000.00
Loss of earning capacity:
Past	$50,000.00
Interest thereon	$3,300.00
Future	$220,000.00
Loss of superannuation	$24,300.00
Griffiths v Kerkemeyer:
Past	$18,000.00
Interest thereon	$3,650.00
Future	$15,000.00
	$502,064.00

53. That total appears to me to represent a proper reflection of the effects upon the plaintiff of the negligence of the defendant. There will be judgment for the plaintiff in the sum of $502,064.00. I shall hear the parties as to costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 9 April 2010

Counsel for the plaintiff: RL Crowe SC

Solicitors for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: WL Sharwood

Solicitors for the defendant: Sparke Helmore

Date of hearing: 22 & 23 February 2010

Date of judgment: 9 April 2010