Alicja Rusek v PETA Arthur & Christina Finlay & Jodie Tarbuck & Iwona ORZESKO
[2002] ACTSC 98
ALICJA RUSEK v PETA ARTHUR & CHRISTINA FINLAY & JODIE TARBUCK & IWONA ORZESKO [2002] ACTSC 98 (27 September 2002)
CATCHWORDS
PERSONAL INJURY – Motor vehicle accident – soft tissue injuries – chronic pain syndrome - assessment of damages – no issue of principle
Griffiths v Kerkemeyer (1977) 193 CLR 161
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Ramsay v Watson (1961) 108 CLR 642
No. SC 529 of 2001
Coram: Master T. Connolly
Supreme Court of the ACT
Date: 27 September 2002
IN THE SUPREME COURT OF THE )
) No. SC 529 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ALICJA RUSEK
Plaintiff
AND:PETA ARTHUR
First Defendant
AND:CHRISTINA FINLAY
Second Defendant
AND:JODIE TARBUCK
Third Defendant
AND:IWONA ORZESKO
Fourth Defendant
ORDER
Coram: Master T. Connolly
Date: 27 September 2002
Place: Canberra
THE COURT ORDERS THAT:
Judgment for the plaintiff against the defendants in the sum of $69,138
Costs reserved
This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 1 September 1993 on the Tuggeranong Parkway in Canberra near the Cotter Road junction. The plaintiff was driving to her place of employment, the University of Canberra, when she became involved in a 9-car incident in morning traffic. There was a collision in front of her, and she was able to bring her vehicle to a halt, but vehicles behind collided with her, in a series of concertina accidents. She has brought a claim against four defendants. Liability is admitted, and counsel for the defendants indicated that no issue arose as to attribution between the various defendants, so that the matter was able to proceed as an assessment of damages. She sustained neck back and shoulder injuries, but also complains of a psychological sequela from the accident in that she is reluctant to drive a motor vehicle because she says she is prone to, in effect, freezing up and being unable to bring her vehicle to a halt. She days that she has been involved in three minor incidents where she was unable to stop her vehicle, and although no one was injured in these incidents, she is now afraid to drive.
The plaintiff’s case is that she continues to suffer ongoing back pain and headaches, and that she has developed as a consequence of the first accident a psychological condition which manifests itself in a fear of driving and that she is now no longer able to work full-time. The defendant’s case is that she has sustained soft tissue injuries only as a result of the accident, which permitted her to continue in full time employment for some seven years after the accident. The defendant submits that any fear of driving manifested itself some time after this accident, and that the plaintiff had a pre existing condition which she had not disclosed to those providing psychiatric or psychological opinions in this case.
The plaintiff was born in 1955 in Poland, and completed her education to year 12 equivalent before undertaking a two-year diploma in engineering. She married and has two children, and emigrated to Australia in 1982, originally settling in Sydney. She came to Canberra in 1985, and initially worked as a cleaner, as this was the only employment she was able to obtain with limited English skills. She then found work at the University of Canberra in a clerical role, and she has been a permanent employee of the University since 1988. As she was on her way to work on the day of the accident, she has been in receipt of workers compensation benefits, which as well as covering medical expenses, have provided salary top up since she moved from full time duties to working three days a week in May 2000.
She was able to drive her car to work on the day of the accident, and to carry out her duties for the day, presenting at her general practitioner that evening with complaints of upper back pain. In a report of June 1996 her general practitioner, Dr Mansoor, said that she has complained of mid back pain consistently since the accident. He noted that x ray and CT scans had failed to detect any abnormality, and suggested that there may be a facet joint involvement. He said that she was also depressed and teary about the way Comcare were handling her case, but said
“However, this lady has a past history of depression and was prescribed anti depressants in 1992…her anxiety depression cannot be directly attributable to her accident of 1 September 1993.”
Although her general practitioner suspected a facet joint involvement, this diagnosis has not been made out, and specialist opinion from neurologists and orthopaedic surgeons, in both the plaintiff’s and defendant’s cases, seem to agree that the basis of her ongoing complaints of back pain is soft tissue in origin. Dr White, who has provided several reports in the plaintiff’s case, has diagnosed a chronic pain syndrome. In his report of December 1999 he said
“I believe that the primary problem was soft tissue injury but this has become amplified by significant depression and has now become a chronic, complex pain syndrome. It is important to note that the presence of significant pain and disability initially has had a profound psychological effect on this woman who presents as being work oriented and well motivated.”
The diagnosis of chronic pain syndrome, while controversial, may be appropriate where there is no apparent organic basis for the pain, as in this case. Where depression is cited as a basis for a chronic pain syndrome, as here, it is important that the clinician making the diagnosis has a proper history of the medical history of the patient. Dr White’s reports, commencing in July 1996,have a history of her being “entirely fit” before the accident. A psychologist, Mr Parker, who reported in December 2000 in the plaintiff’s case, had a history of no pre existing condition. Dr Knox, a consultant psychiatrist, who reported in October 2001, took a history of no prior psychiatric disturbance prior to the 1993 accident.
This is difficult to reconcile with the treating general practitioner’s report of June 1996 where he said that she had a history of depression prior to the accident, and expressed the view that
“her anxiety depression cannot be directly attributable to her accident of 1 September 1993.”
The plaintiff denied in cross-examination that she had suffered anxiety before the accident, but later acknowledged that she had spoken to doctors about anxiety before the accident. She agreed that she wanted to create the impression with doctors that she was happy and content before the accident, and that that was the fact she denied being treated by her general practitioner for depression, saying “that wasn’t depression” (transcript p 58) She was asked whether she had been prescribed anti depressants, and said “Maybe I was worse but I’d never take antidepressants in my life”. When asked for clarification of this answer, she said she did not remember. She then said that she had been given anti depressants before the accident, but had not taken them.
She was taken to a note from her treating GP in March 1992 which gave a history of tiredness, lethargy and stress at work, and which resulted in a prescription of Libruim, an anti depressant. She says she never took those tablets. She denied ever having suffered depression. When confronted with the notes of that consultation, which recorded a history “anxiety/depression h/o depression 2 year ago” she denied that this was true, but then said that whatever was in the notes would be true.
The plaintiff also says that headaches have been a feature since the accident. She said that before the accident, she just suffered from “normal headaches”. She gave no expert any history of problems with headaches before the accident. She acknowledged that she would take ordinary Panadol for headaches prior to the accident, and said that this always resolved the problem. She denied that there were occasions where headaches would not respond to Panadol (transcript p 43). She was shown medical notes from the University of Canberra clinic in 1992 recording a history of headaches not responding to Panadol, and acknowledged that this was true. She acknowledged that this was contrary to evidence that she had just given, and was unable to explain this, and responded with some annoyance to counsel for the defendant as he pressed this point.
I am satisfied that there are medical notes from 23 July 1992 that refer to a history of a lot of headaches, and that as a consequence of this she had a CT scan performed on her brain in August of 1993. She agreed with this, but then said she did not remember. She continued to say that she did not remember, but then agreed that she had suffered from headaches for years, and that when she had said she did not remember, she had been trying to avoid answering the question (transcript p 46)
I am satisfied that in important aspects of the prior medical history the plaintiff has failed to disclose her prior history of ongoing headaches, and depression, and that she was being evasive in cross examination on these points, only reluctantly conceding the truth when presented with the clinical notes. The failure to provide a complete medical history has the effect of weakening the force of those medical opinions on which she bases her case, because, when the history on which a doctor gives an opinion is undermined,
“then the physicians opinion may have little or no value, for part of the basis of it is gone”(per Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ, Ramsay v Watson (1961) 108 CLR 642 at 649).
A further basis on which the plaintiff’s history to doctors is relevant is in complaints of stress and anxiety arising from the accident. She told Dr Glasser, psychiatrist who reported in the defendant’s case, that on the day of the accident she was quite stressed, and in shock when she attended her general practitioner. Dr Mansours notes recorded no complaint of shock or stress, and she acknowledged in cross-examination that her only concern at that attendance was her physical condition (transcript p 51). She was also confronted with a medical report from the University health centre on 10 September 1993, where again only physical complaints were noted, and the accident report that she filed with her employer dated 2 September 1993, in which the box for “sprain/strain” is ticked but the box for “shock/stress” is not marked. She was unable to explain why, if she had been suffering from these conditions, they did not appear in contemporaneous general practitioner notes, or the accident claim form.
The plaintiff says that she used to drive her car a lot, and she continued driving her car after the September 1993 accident. She says that in March 1995 she was taking her children to a dancing lesson in her district, and she was unable to stop her car at a T intersection, and the car came to a halt on the grass. No one was hurt in the incident, and she said she does not know what happened, but she thinks she tried to work the brakes. She says she became very distressed, and her son drove her home.
She continued to drive, and on January 1996, while on her way home from work, she says she failed to stop on Caswell Drive at a red light, but she was able to go between two lines of cars, eventually coming to a stop. She was asked why she could not stop, and said
“I don’t know…I wasn’t the same driver, I was always aware of and worry about stopping because of this accident. I mean I just was anxious and stressed. My driving was never the same.”
She says she was able to drive home, but she then stopped driving for two years, until her husband was unable to drive.
Following this incident she attended the university medical centre, and was given a medical certificate for 5 days absence from work on the basis of “post traumatic shock”. She lodged a Comcare claim for post traumatic shock and inability to drive a car, and in the section of the form that asked her to describe how the injury arose said
“Comcare giving notice that original claim would be disallowed causing me a great deal of stress and as a result I was reliving the accident as well as another accident in March 1995 that was not work related.”
The plaintiff’s claimed inability to drive as a consequence of the September 1993 accident is a significant factor in her case, as it gives rise to a claim for Griffiths v Kerkemeyer damages on the basis of a need for her to be driven by family members, and her employment history is that she was able to continue with full time work for some 7 years, but has moved to part time work, three days a week, only since she ceased driving, saying that the additional time taken to get to work by public transport aggravates her back condition.
Dr Knox, who did not have a history of any pre-accident anxiety or depression, formed the view that the plaintiff was
“appropriately diagnosed as having suffered from Adjustment Disorder with Mixed Anxiety and Depressed mood since the time of the first accident.”
He had said that she had an effective phobia for driving, although she did not meet the criteria for a phobia. He said
“Mrs Rusek has made the informed decision that she is unsafe as a driver, and has thus given up this activity.”
Dr Ding, a consultant psychiatrist who reported for Comcare in April 2002, agreed with a diagnosis of Adjustment Disorder with Anxiety Symptoms, but also diagnosed a Conversion Disorder involving the right leg. He was of the view that this actually prevented her from applying the brakes. Dr Ding was aware that the general practitioner had referred to a pre existing depressive condition, and says in his report that he questioned the plaintiff about this, and recorded that she referred to
“normal depression associated with bringing up children”.
He said he was unable to obtain a history to suggest any sustained period of lowering of mood or impairment of sleep that would last several days or weeks.
Dr Glasser, the consultant psychiatrist who reported for the defendant, took issue with the diagnosis of conversion disorder. He said that the plaintiff’s own description of her difficulties
“virtually precludes the diagnosis of conversion disorder. The paralysis caused by conversion disorder is virtually always obvious and bizarre, involving gross weakness of the body part in question to that the sufferer (for example) cannot walk or move the affected limb at all. Dr Ding’s report indicates that Ms Rusek was observed by somebody else (ie her daughter) to be attempting to press the brake appropriately. In other words, the weakness or similar condition affecting her right leg at the time must have been quite subtle, ie much more in keeping with a neurological deficit than with a conversion disorder.”
He suggested a neurological examination to exclude any physical cause. Dr White, who is a neurologist, has examined the plaintiff and provided reports, but he does not refer to any neurological cause for her claimed driving disorder.
Dr Glasser accepted that there was reasonable evidence that the plaintiff was suffering an adjustment disorder with anxiety and depressed mood, which remains of mild but appreciable severity. He considered that this could contribute to an anxiety about driving.
I am satisfied that the plaintiff, as a consequence of the accident of 1 September 1993, sustained soft tissue injuries to her back which has resulted in a degree of ongoing pain and discomfort. Although she has complained of headaches, I am satisfied that there was a significant history of headaches prior to the accident, and I do not find that any ongoing history of headaches is attributable to the accident. I find that the back pain has caused a degree of restriction on her daily activities, but I note that she was able to continue with full time employment for seven years after the accident.
Extensive examinations have failed to reveal any organic cause for the ongoing complaints of pain, and the most recent medical reports in her case now refer to the development of a chronic pain syndrome, which is principally of psychological basis. These reports were based on a misleading history of the absence of any pre accident anxiety and depression, and do not fit well with her treating general practitioners view in June 1996 that she had both pre existing anxiety and depression, and that she had lately been
“very teary and depressed because of the way Comcare was handling her case.”
Counsel for the defendant stressed in submissions that it is only after the 1996 incident that the documentary evidence shows any complaint of stress or anxiety relating to driving. Dr Ding, in his report, has offered the view that the absence of documented complaint is explainable because
“the minimal account she gave at the time was largely due to a degree of psychological dissociation and numbing of her feelings”.
I am not persuaded by this. The plaintiff has told Dr Glasser that she did complain of stress and shock after the initial accident, a history not confirmed by the notes. Dr Ding may hypothesise that she did not complain, not because of the absence of symptoms, but because she was so psychologically effected that she could not complain, but this is mere speculation, some 9 years after the event.
In a report to Comcare of October 1999 Dr Dewey records that the plaintiff complains of stress and panic with driving, and that she did not drive for two years after the 1996 incident, and after briefly resuming, has not driven again following a September 1999 incident. He recorded a history that she cannot make a decision quickly enough to stop and control the car.
It is of course for the plaintiff to establish, on the balance of probabilities, that she has an accident related medical condition. There is, as is often the case, considerable ambiguity in the diagnoses of the psychological sequelae of this accident. It has been described as an Adjustment Disorder with Depression and Anxiety, panic attacks (which seem to describe a symptom and not a condition, and which in any event do not match the evidence, because Mrs Rusek does not describe panic when trying to stop a car), and a Conversion Disorder. I am not satisfied with the diagnosis of conversion disorder, preferring the view of Dr Glasser to Dr Ding, but I am satisfied, on all of the evidence, that there is established a degree of Adjustment Disorder.
I must then determine the extent to which this is accident related. There are two factors here that must be mentioned. The plaintiff has not given a frank account of her prior condition. Her general practitioner, who was fully aware of this, expressed the clear view that any depressive condition was not accident related, but was pre existing. The psychiatrists and psychologists who have given evidence have done so on a false premise. It was also stressed to me by counsel for the defendant that, as the plaintiff admitted that she sought to present herself as a happy person before the accident in order to maximise damages, and as I had found some clear dissembling in relation to medical history, I should be somewhat sceptical at the mysterious nature of the claimed driving disability.
I am satisfied, on all of the evidence, that the plaintiff has in addition to her soft tissue injuries, a degree of adjustment disorder with anxiety and depression, but I find that this amounts to an aggravation of a previously symptomatic condition. I find that this has lead to the emergence of an anxiety about driving, which became most pronounced in January 1996, when the plaintiff sought to claim a condition of post traumatic stress, provoked, on her application by certain administrative actions of Comcare. The present defendants cannot be held accountable for Comcare’s claimed actions.
The principle to be applied in determining compensation in personal injuries cases have been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 186 CLR 49 where His Honour said (at 54):
“When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant’s negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, ‘in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation’.”
In relation to general damages, I assess the plaintiff on the basis of ongoing soft tissue injuries. I am not satisfied that the complaints of headache are accident related, and I accept the view that the best diagnosis now is for a chronic pain syndrome, being essentially a psychological condition. It is now some 9 years since this accident, and where there is no evidence of structural damage, I am of the view that the accident related effects must be seen to be approaching their end. I accept a degree of psychological sequelae, but in the sense of aggravating a previously symptomatic condition. I am not satisfied that the complaints of being unable to drive, variously described, are solely attributable to the accident, having first emerged as a significant issue, it seems to me, only some years after this accident, and being described at the time as related to stress caused by certain Comcare determinations.
I would award general damages in the sum of $40,000, with $35,000 attributable to past loss, generating interest of $6,340 for a total award of $46,340.
Medical expenses have been paid to date by Comcare in the sum of $15,271, and I accept this as being related to the accident. There is little evidence in support of the claim for future out of pocket expenses, but I accept that some further counselling to deal with the chronic pain syndrome and adjustment disorder would be appropriate, and award the sum of $5000 as a buffer for this.
Economic loss is claimed for the entire period that the plaintiff has been absent from work since she reduced her hours in May 2000, and on an ongoing basis. The medical evidence does not, it seems to me, justify such a claim. Dr White, reporting in the plaintiff’s case on the physical condition in July 1996 said that
“there does not appear to be any substantial disability, merely discomfort”,
and said that she was fit for the type of work she has been doing over the years without restriction. I am not satisfied that this has changed, and it seems to me that the fact that the plaintiff finds using public transport inconvenient is not justification for the defendants to pay for her to move to part time work only. An inability to drive a car, if such exists, does not preclude a person from employment, and many persons regularly commute to and from work by bus. I note that Dr Ding, who accepted the inability to drive as entirely attributable to the accident, said that
“her psychiatric conditions do not restrict her capacity for employment”
at paragraph 13 of his report and Mr Parker, a psychologist who provided some counselling in relation to driving said in his report that she
“remains employed in her normal duties and did not report any difficulty carrying out such duties.”
I am not satisfied that the physical and psychiatric conditions I have found to be attributable to the accident sound in any economic loss claim, save for those periods off work up until May 2000. This amounts to an award of some $2527, based on the Comcare incapacity payout schedule, which I award. No interest is recoverable due to there being top up payments received.
There was a claim for Griffiths v Kerkemeyer damages in respect of household assistance and driving the plaintiff. There was a lack of specificity in the evidence in relation to this claim, and given my findings that the plaintiff’s physical difficulties are soft tissue only, and indeed were described by Dr White as more of a discomfort than a disability, I am not satisfied that any rearrangement of household duties goes beyond the normal give and take of domestic affairs and does reach the threshold of a Griffiths v Kerkemyer accident created need, and so does not sound in damages.
This amounts to a judgment for the plaintiff in the sum of $69,138 which I consider to be appropriate on all of the evidence, and award.
I will hear the parties as to costs.
I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly
Associate:
Date: 27 September 2002
Counsel for the Plaintiff: Mr S Pilkinton
Solicitor for the Plaintiff: Pamela Coward & Associates
Counsel for the Defendants: Mr M McDonogh
Solicitor for the Defendants: Phillips Fox
Date of hearing: 5 & 6 August 2002
Date of judgment: 27 September 2002
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