Arnold v Potter
[2004] WADC 218
•5 NOVEMBER 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ARNOLD -v- POTTER & ANOR [2004] WADC 218
CORAM: O'SULLIVAN DCJ
HEARD: 5 & 6 APRIL 2004
DELIVERED : 5 NOVEMBER 2004
FILE NO/S: CIV 1562 of 2003
BETWEEN: PHILOMENA JULIA ARNOLD
Plaintiff
AND
WILLIAM ROBERT POTTER
First DefendantOURANIA LORRAINE GOODCHILD
Second Defendant
Catchwords:
Damages - Personal injuries - Successive motor vehicle accidents - Gratuitous services - Plaintiff unable to properly care for husband or herself - Total award of $113,037.50
Legislation:
Nil
Result:
Claim against first defendant dismissed
Damages of $113,037.50 awarded in respect of claim against second defendant
Representation:
Counsel:
Plaintiff: Mr K J Bradford
First Defendant : Mr P R Momber
Second Defendant : Mr P R Momber
Solicitors:
Plaintiff: Bradford & Co
First Defendant : Peter Momber
Second Defendant : Peter Momber
Case(s) referred to in judgment(s):
Burnicle v Cutelli [1982] 2 NSWLR 26
Sullivan v Gordon (1999) 47 NSWLR 319
Thomas v Boguslawa Kula by her next friend Marek Kula [2001] WASCA 362
Case(s) also cited:
Easther v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2001] WASC 328
Griffiths v Kerkemeyer (1977) 139 CLR 161
Weinert v Schmidt [2002] 84 SASR 307
O'SULLIVAN DCJ: The plaintiff who was born on 11 July 1932 claims damages in respect of injuries said to have been sustained as a result of two motor vehicle accidents on 18 September 2000 and the 15 February 2001.
The liability of the first and second defendants is not in issue.
The first accident
The first accident occurred on Wanneroo Road at about 6.40 am. The plaintiff gave evidence that she was driving north when she saw a truck in her rear vision mirror. The truck was being driven by the first defendant and it was clearly travelling faster than her vehicle. The plaintiff said:
"And I changed lanes. I went into the outside lane. I don't know why I did but I just got into the outside lane and thought, 'When he passes I'll get back into my left lane.' Meanwhile he went past and the back of his trailer clipped my car and almost tipped it over into the road verge."
The plaintiff said that she immediately applied the brakes of her vehicle which she thought was going to leave the road. She said:
"… I had to pull myself together and chased after him in the car, blowing my horn and putting on my lights and it took quite a while before he stopped. And then he got out and he was really aggressive and nasty. He said that he hadn't seen me and he didn't know what I was talking about. I said 'Well, look at the side of my car, what you've done to it.' You could see the truck wheels all imbedded – both doors were squashed in."
The plaintiff gave evidence that the cost of repairing her car was $1,488.
At the time of the accident the plaintiff was going to Joondalup hospital to see her husband who was a patient there. She proceeded to the hospital feeling "really shaken". She told staff at the hospital what had happened and they gave her Panadol and a heat pack for her left shoulder and neck. She said that the nurses wanted her to attend at the casualty department of the hospital but she declined to do so saying that she did not want to be admitted.
Later in the day the plaintiff reported the accident to the Warwick police.
On 22 September 2000 she attended on Dr M K I Tan at the Warwick Medical Centre. By then she was complaining of a painful neck and pain in the left shoulder and Dr Tan arranged for x‑rays.
A report from Dr Glenn Scott which was tendered states that x‑rays of the full spine and left shoulder disclosed no fracture, subluxation, prevertebral soft tissue swelling in the cervical region, nor other radiographic evidence of recent injury.
Dr Tan referred Mrs Arnold for physiotherapy and prescribed Panadeine Forte. It was his view that she had a good chance of full recovery with no residual problems. This prognosis seems to have been borne out because the plaintiff gave evidence that by 15 February 2001 she "was almost better".
The second accident
On 15 February 2001 the plaintiff was the driver of her vehicle which was stationary on Warwick Road when it was struck from behind by a four‑wheel drive driven by the second defendant.
On this occasion the cost of repairing the plaintiff's car came to $2,649. She said that "the whole back was just squashed in".
The plaintiff gave evidence of the immediate effects of this accident upon her as follows:
"I couldn't get out of the car to speak to the woman, I was that shaken up. …
...
How did you feel in relation to your condition?---Bad, bad. All my seats in the car were pushed forward and I felt like I was going through the window, it was that bad, the jolt, …"
The plaintiff proceeded in her evidence to say that as a result of this accident she suffered severe headaches and pain in the lower back and down the left leg.
On the day of it she attended on Dr S V Z Venter at the Two Rocks Medical Centre who wrote in a report dated 23 May 2001:
"Philomena J Arnold presented 15.02.01 with the history of MVA the same day, hit from behind. She complained of headache, left shoulder pain, left arm heaviness and left jaw ache.
She was conscious, stable and neurological (sic) intact. She had tenderness of her neck muscles. No spinal tenderness.
I reviewed her on 23.02.01 with X/R of the cervical spine revealing no fracture or subluxation, but osteophytes C4 – 7 of previous arthritic changes in her neck.
She had pain in the neck turning her head and lower backache. Neck movement was mildly impaired. She was referred for physio. She did not present again for review.
I expected her to recover within the next 4 weeks without permanent disability."
Subsequent investigation and treatment of the plaintiff
After seeing Dr Venter on two occasions the plaintiff attended on Dr Tan, who was her regular doctor. Dr Tan wrote in a report dated 2 August 2001 that he reviewed her on 31 July of that year. He noted that she was complaining of significant neck pain especially on the left side, and in the left shoulder. She was also painful and tender in her lumbar spine. He referred her for more x‑rays and physiotherapy and prescribed pain killing and anti‑inflammatory medication. However, her condition did not improve and she was referred to Dr J Edelman, rheumatologist, who saw her on 29 January 2002.
Dr Edelman wrote in a report of that date:
"I note that on the 18th September 2000 there was an accident where a truck drove into her and she had a lot of neck and shoulder discomfort. She had almost improved from this and then had a second motor vehicle accident on the 15th February 2001, which was a rear end collision. Unfortunately since then she has had ongoing symptomatology.
There is a lot of discomfort in her neck spreading out along her shoulders and it is there constantly. There is also low back discomfort radiating down her left leg.
She has had physiotherapy and finds that this does help but only while she is having the treatments.
Examination today revealed that she was in obvious discomfort. She seems to have lost a lot of movement in rotation of her neck. Even extension and flexion were somewhat limited. There was discomfort in moving her shoulders but she was able to move them reasonably well. She was tender over the lower cervical facets and along the trapezius muscles. Low back movements were also limited with her fingers arriving just below her knees. Straight leg raising on the left produced back discomfort.
The x‑rays reveal quite dreadful cervical spondylosis at C4/5, C5/6 and C6/7. There is some slight lumbar spondylosis in the lower facet joints.
There is no doubt that the accident has made her cervical spondylosis and lumbar spondylosis symptomatic. I did discuss facet joint injections with her but for the moment she would rather wait and see. I will see her in a month and then we can look at further treatment."
Dr Edelman referred Mrs Arnold to Dr Geoffrey Gee of the Cambridge Pain Management Clinic who ordered a CT scan which he said demonstrated a marked spinal stenosis at L4/5 that was degenerative in nature. He recommended a localised epidural and a root sleeve injection on the left side.
There are no further reports in evidence from Dr Gee indicating the outcome of that treatment, but the plaintiff herself gave evidence that she had facet joint injections which relieved the pain in her neck but the pain in her shoulder remained.
On 21 June 2002 the plaintiff was reviewed by Mr Barrie Slinger, spinal surgeon. He noted at that stage that she continued to complain of neck pain as well as pain in the left shoulder, scapula and trapezius. There was also a complaint of lower back pain radiating into the left leg.
Mr Slinger wrote in a report of 24 June 2002:
"e)The injuries caused by the two motor vehicle accidents are those of soft tissue injuries to the spine as a whole and to the left shoulder.
There were pre‑existing degenerative changes present throughout the spine and to a lesser extent at the left shoulder, those changes were asymptomatic, were rendered symptomatic by the abovementioned accident in the absence of which accident they may well have continued asymptomatic indefinitely.
f)Treatment recommendations are to continue as she is doing, sensibly avoiding provocation with the assistance she is receiving at home, ideally some gentle mobilisation in a heated pool with, again, some gentle stretching and strengthening program, and local measures such as heat, massage and mobilisation reserved for times of symptomatic exacerbation.
It is my understanding that Dr Geoffrey Gee has recommended epidural block with which I would be in full agreement.
…
h)I would suggest finalisation of your client's claim is best deferred for at least a period of six months to allow further spontaneous improvement and to determine the result of the treatment supervised by Dr Gee.
i)I have indicated that I anticipate there may well be further improvement with further time."
The plaintiff was also examined by Mr Allan Wang, orthopaedic surgeon, on 26 July 2002 and reviewed on 6 September of that year. In a report of 26 July 2002 Mr Wang stated:
"My clinical impression is that most of the discomfort in the left shoulder region is referred from the neck. I have arranged an MR scan looking for significant cuff tendon damage or glenoid labral damage which might benefit from arthroscopic surgery. Otherwise I think Mrs Arnold's symptoms will require symptomatic treatment with some physiotherapy, some home exercises, one or two judicious cortico‑steroid injections etc."
In his report of 6 September 2002 Mr Wang stated that after seeing an MR scan of the left shoulder it was his view that there should be no further intervention beyond avoidance of provocative activity. He concluded that cortico‑steroid injections were not called for.
Recent medical reviews
Dr Tan wrote in a report dated 8 December2003 as follows:
"1 (2).Her neck symptoms continue to be as follows.
(a).Neck and left shoulder pain. The facet joint injections, which Dr Maguire ordered on her neck, did improve her neck and left shoulder pain; however she continues to have significant symptoms and disabilities in these parts. For example, Mrs. Arnold can only work for periods up to 15 minutes at her computer or sewing machine, before she has to stop because of the discomfort this posture produces in her neck and left shoulder. She experiences similar discomfort during other activities such as reading, or driving her car beyond certain distances. Prior to the accidents Mrs. Arnold used to drive fairly regularly to the Southwest to visit relatives. Since the accident, the longest she can drive to is to Yanchep to visit her son. By the time she reaches Yanchep she is in so much pain that she has difficulty getting out of her car.
Worse than her neck and left shoulder are her lower back and left hip areas. She can not sit or stand for longer than 10 minutes before her back and hip pain become too unbearable. Because of her back and hip pain, gardening as well as most household duties is no longer possible.
On examination: Mrs Arnold has a great deal of tenderness in her lumbar spine and over the left sacro‑iliac area. Movements involving her lumbar spine and left hip are painfully restricted.
3.Apart from continuing to take her analgesics and anti‑inflammatory agents as well as intermittent physiotherapy or message (sic), I have no further recommendations for Mrs. Arnold. It is also essential that her condition be reviewed by her GP at leats (sic) once every 6 months; and f (sic) necessary further recommendations regarding her treatment can then be given.
4.Yes her condition has in my opinion, stabilised sufficiently for her claim to be finalised.
…
8.Mrs. Arnold's condition, in my opinion, will not improve. Over time she may experience more pain, stiffness and disability in the above named areas.
The plaintiff was reviewed by Mr Edelman and Mr Slinger on 22 March 2004.
Mr Edelman wrote in a report of 22 March that the plaintiff had told him that she felt better on that day than when she last saw him. However, she still complained of ongoing symptoms in the neck on the left side radiating into the shoulder and in the lower back radiating into the left leg. He continued:
"These symptoms are mainly present with activity. She consequently finds it difficult to sit and read for more than 15 minutes and if she does she has pain in her neck and low back. She can no longer garden because of her low back pain. Before the motor vehicle accident she could do the gardening. If she sits and sews it is far too difficult for her because of her neck pain. Her grand daughter now helps around the house and hangs out her washing for her. She needs help with the vacuuming and cleaning because of the aggravation to her symptomatology.
She has Silver Chain help caring for her husband. He now walks with a frame and seems to be improving to some extent.
There was some tenderness in her cervical spine in the upper left cervical area. Flexion and extension were reasonable but rotation to the left and right were indeed diminished by about 25%. Shoulder movements were reasonable but produced discomfort. With her low back, there was some minor tenderness but she could forward flex with her fingers arriving to her ankles. Extension produced discomfort. Straight leg raising produced low back pain and was to about 70 degrees. There were no localising neurological signs.
I did not have the x‑rays to view but do note as before, the extensive degenerative changes in her neck and on the CT Scan prominent degenerative changes with spinal stenosis at L4/5 and a shift of L4/5.
This lady has ongoing symptomatology as I have described above. Bearing in mind that the symptoms have been present fro (sic) more than 3 years, then the prognosis is very likely to be poor.
Since I last saw her there has been some minor improvement in her symptomatology but not to any great extent.
She may require further facet joint injections in time and even facet joint injections in her low back.
Her diagnosis is that of symptomatology related to her motor vehicle accident which is a combination of soft tissue, muscular pain and pain from her degenerative cervical and lumbar spondylosis that has been made symptomatic due to the motor vehicle accident.
From her history she does require domestic assistance. She has Silver Chain doing the cleaning once a fortnight and her grand daughter helps with the other housework."
In his report of 23 March 2004, Mr Slinger also noted that symptoms had improved since he last saw the plaintiff, although pain persisted in the area of the left shoulder, left scapular and left neck radiating into the left arm as well as in the lower back and the left leg. Mr Skinner wrote:
"Lifting is still an aggravation, which she attempts to avoid, bending as when dressing is a further aggravation and has difficulty cutting her toenails for the same reason. Sitting and standing tolerance is said to be 20 minutes, walking has been reduced, in part because of the discomfort so produced and because she has also had several falls."
Mr Slinger also wrote:
"5.What further treatment would you advise for Mrs Arnold?
Treatment should be directed exactly as she is doing in terms of sensibly avoiding provocation, I believe she would benefit by some gentle mobilising exercises in a heated pool to improve her general fitness as well as trunk, abdominal and shoulder girdle muscle tone. Local measures such as heat, massage and mobilisation, possibly considered at times of symptomatic exacerbation and medication as determined by her family doctor.
7.In your report of 24 June 2002 you explained that in view of her continuing symptoms, Mrs Arnold required domestic assistance. Do you still feel this is the case? If so, with what types of activities?
I would agree that at the present time this lady does require domestic assistance, as from her granddaughter who is living with her and her husband and from Silver Chain, both with assisting with the care of her husband and his chronic illness as well as the heavy domestic tasks about the house as I have detailed."
The evidence of the plaintiff and her granddaughter
The plaintiff confirmed in her evidence that she continues to suffer from pain in the lower back radiating into the left leg and hip, and she said that it had gradually worsened over time despite treatment. She also said that the pain in her neck and left shoulder had persisted. She said that she can now only perform light household chores such as dusting, and "a bit of cooking".
The plaintiff said that she now has difficulties going for walks ("in case I fall over or something"), as well as sewing and gardening. Long bus trips and standing for any length of time causes pain and discomfort. For these reasons the plaintiff said that she spends most of her days resting.
The plaintiff also referred to problems with her jaw which appears, from the report of Dr Venter, to have been a result of the second accident. She said that she cannot eat properly and that her mouth gets very sore and aches on the left side.
Natalie Hazel Arnold is a granddaughter of the plaintiff. She was born on 10 March 1978, and gave evidence that she has lived with her grandparents since she was a young child. After leaving school after completing Year 12 she worked for a politician and then as an office manager, and was later a receptionist and technical librarian clerk for an aviation firm.
Miss Arnold said that before the first accident the plaintiff attended to all housework and other domestic chores. She said:
"She did everything; cleaned, moved furniture, everything.
… She cooked, did all the general cleaning, the gardening, attended to my pop whenever she could."
Miss Arnold said that at the time of the plaintiff's first accident she was working over 12 hours a day, but she then reduced her hours so as to assist her grandmother. This lasted for about six months and she then attempted to go back to work full‑time but found that this was not possible because of the amount she had to do at home. She said: "I was doing the cooking, the cleaning, the washing, the shopping, attending to my Pop, moving things around if they needed to be. Everything really." She was asked and said: "What was your grandmother doing everyday?‑‑‑sitting down, mainly in bed or on the lounge."
Miss Arnold said that after the plaintiff's second accident she quit her employment and applied for a carer's pension to look after her grandfather. She did this for about two years until she returned to part‑time work in March 2003. While working part‑time she has still attended to helping out at home, particularly in relation to caring for her grandfather and doing heavier domestic chores.
Miss Arnold was asked and said:
"The ability of your grandmother to assist at home; to your observations since these accidents has that ever changed?‑‑‑it has changed since the accidents a lot.
In what way?‑‑‑She can't really do anything, yes. Before she was so full of life. They used to go to the dance clubs, before my pop got sick of course, and they were very social and active but now she's not, they sort of just lie in bed all day and do nothing because they can't."
The care of the plaintiff's husband
The plaintiff's husband is 95 years of age and suffers from a condition known as Guillain‑Barre syndrome, a degenerative nerve disorder, causing generalized weakness and paralysis.
I heard no expert evidence about the husband's precise state of health but the plaintiff said that before the first accident he had been in and out of Joondalup Hospital on several occasions, suffering from pneumonia and other complications. At the time of the first accident he was in hospital.
The plaintiff said that before the accidents and when her husband was at home she provided all necessary care for him, including bathing, toileting, feeding and the like. When he was hospitalized she would visit him and stay overnight and again care for him, taking him to the toilet and showering him, because, she said, the hospital was understaffed.
For some time it seems that the plaintiff's husband was unable to walk but his condition has now improved and he can do so, with the aid of a walking frame, but he is liable to fall over and therefore needs support. He still requires feeding, which is through a tube and assistance with bathing and toileting.
It was the plaintiff's evidence that for some time after the first accident she was unable to assist with the care of her husband in hospital, and when he was discharged in December 2000 he was looked after at her son's home for a while before returning to hospital with another bout of pneumonia. He was at the son's house at the time of the second accident.
Assessment
The plaintiff's claims must be separately assessed notwithstanding that her present condition and complaints may be the product of a combination of both accidents. That is not always an easy task, particularly when, as here, the nature of the injuries suffered on each occasion are similar.
First accident
Although I have no doubt that the plaintiff suffered a significant shock as a result of the first collision, I have some difficulty in understanding precisely how she came to suffer painful symptoms in her neck and lower spine. Nevertheless, the accident which involved a side swipe of her vehicle by the trailer of the truck being driven by the first defendant occurred at speed, and the plaintiff was required to brake heavily and the direction of her car changed. In these circumstances I accept that she came to suffer the injuries of which she complained to Dr Tan who saw her four days after the accident, and there is no suggestion that her symptoms were unrelated to it.
However, notwithstanding the considerable shock which the plaintiff no doubt suffered as a result of her experience, it is clear that she was able to pursue the first defendant and remonstrate with him, and to then continue with her journey to the hospital to see her husband. Further, she felt well enough to reject the invitation of nurses at the hospital to be examined in the casualty department. It is true that within a short time she developed pain in the neck and lower back and attended on Dr Tan but with physiotherapy and massage it seems that she was making a substantial recovery by the time of the second accident on 15 February 2001. As she herself said, by that time she was "almost better".
Pursuant to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 the amount of damages to be awarded for non‑pecuniary loss is to be proportionate to the amount that can be awarded in a most extreme case. ($249,000). In this case I am satisfied that the amount should be no more than five per cent of a most extreme case which equates to $12,450. This is not sufficient to exceed the threshold sum.
Claims for care of husband and gratuitous assistance
I am not persuaded on all the evidence that anything should be allowed in respect of these claims. While I have no doubt that the plaintiff experienced difficulties in relation to caring for herself and her husband after the first accident, the evidence in my view does not allow me to make any award in respect of these matters. That, it seems to me, is especially so in the light of the evidence that the plaintiff's granddaughter was living at home and in receipt of a carer's allowance to care for the plaintiff's husband and visits from Silver Chain were being regularly received.
Second accident
I am satisfied that as a result of the second accident the plaintiff has been left with significant disabilities. She remains in pain as described in the region of the neck, shoulder, lower back and left leg. Her pain is aggravated by activity, and her condition may well be permanent.
In all the circumstances I would assess the plaintiff's claim for non‑pecuniary loss arising out of the second accident at 10 per cent of a most extreme case which equates to $24,900. After applying the threshold the amount the plaintiff should receive is $12,400.
Claim for care of husband
Counsel for the defendant did not oppose the plaintiff's submission that in principle an amount under this heading could be awarded.
Counsel for the plaintiff referred to Sullivan v Gordon (1999) 47 NSWLR 319 in which the New South Wales Court of Appeal held that Burnicle v Cutelli [1982] 2 NSWLR 26 was no longer good law (see par 59 per Beazley JA, with whom Spigelman CJ, Powell JA and Stein J agreed) and that a person who had lost his capacity to care for another family member is entitled to be compensated on the basis of a traditional Griffiths v Kerkemeyer claim. Sullivan v Gordon seems to have been referred to with approval in Thomas v Boguslawa Kula by her next friend Marek Kula [2001] WASCA 362 (see [19] and [20] per Wallwork J with whom Roberts‑Smith J and Pidgeon AUJ agreed.)
Counsel for the defendant submitted that on the evidence it had not been established that there was anything the plaintiff could have done for her husband that she cannot now do as a result of her injuries. The reality, he submitted, is that the disease which has overtaken her husband is of such a magnitude that there is little, if anything, she could do for him which would not require the assistance of others and that assistance is already being provided in the form of Silver Chain nursing and other forms of care.
In my opinion that submission should not be accepted. I have already noted the evidence that while the husband was unable to walk for some time his condition has improved and it seems that although periods of hospitalization may be necessary, there will be a substantial time when he can and should be cared for at home. While I have no doubt that there always would have been things the plaintiff could not have done for her husband given her lack of nursing qualifications and general age and condition, it seems to me that as a result of the injuries sustained by her in the second motor vehicle accident there is now a range of services she is unable to perform for him. They include not only quite heavy activities involving lifting and positioning her husband, but general household duties requiring prolonged standing or sitting, and physical activity of only a moderate kind. Most importantly also, the role of simply being with her husband in circumstances where she may be called upon to engage in physical work which she cannot perform, or can only perform with painful consequences can also, in my opinion, be described as a result of the second accident.
The plaintiff seeks to quantify this aspect of her claim upon the basis of an assumed need of two hours per day at $16 per hour. I think that one hour a day is a reasonable estimate.
There have been 194 weeks since 15 February 2001, and the result is $21,728.
The plaintiff is entitled to interest on this sum at three per cent per annum. This comes to $2,432.
As to the future, the plaintiff's husband has a life expectancy of approximately three years for which the multiplier is 143.6. The result is $16,083.20. I would discount that sum by one third to allow for adverse contingencies including the likelihood that the husband will be hospitalized at times. The amount the plaintiff should receive is therefore $10,722.
Domestic assistance
In addition to a claim for loss of ability to care for her husband the plaintiff also seeks an amount for the cost of domestic assistance, including gardening. I would allow an amount based upon an assumed need of one hour per day at $16 per hour. For the past the amount is therefore $21,728 and interest of $2,432.
As to the future, the plaintiff is 73 years old and has a life expectancy of 13.93 years, for which the multiplier is 499. The resultant sum if $55,888. I would discount that amount by one third to allow for contingencies including the likelihood that as she ages the plaintiff would have required these services in any event. Accordingly, the sum to be awarded is $37,259.
Medical expenses
I was told by counsel that the defendant had paid out $4,336.50 in respect of the plaintiff's past medical expenses related to the second accident.
Conclusion
The plaintiff should receive damages in respect of the second accident as follows:
Non‑pecuniary loss $12,400.00
Past gratuitous assistance $43,456.00
Interest thereon at 3 per cent $4,864.00
Future gratuitous assistance $47,981.00
Past medical expenses $4,336.50
Total$113,037.50
The plaintiff's claim for damages in respect of the first accident should be dismissed.
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