Barker v Graham
[2020] ACTMC 12
•21 May 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barker v Graham & Anor |
Citation: | [2020] ACTMC 12 |
Hearing Date(s): | 23 – 25 September 2019 |
DecisionDate: | 21 May 2020 |
Before: | Magistrate Stewart |
Decision: | See [107] |
Catchwords: | CIVIL JURISDITION – Award of damages – third party insurance - Motor vehicle accident – general damages |
Legislation Cited: | S 99 Civil Law (Wrongs) Act 2002 (ACT) |
Cases Cited: | Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 |
Texts Cited: | Krafft M, Kullgren A, Lie FA and Tingvale C, “Assessment of Whiplash Protection in Rear Impacts – Crash Tests and Real-Life Crashes”, Swedish National Road Administration June 2004 |
Parties: | Margaret Barker (Plaintiff) Slobodanka Graham (First Defendant) Insurance Australia Limited trading as NRMA (Second Defendant) |
Representation: | Counsel Mr MULLER (Plaintiff) Mr REWELL QC (Respondent) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore Lawyers (Defendants) | |
File Number(s): | CS 188 of 2020 |
MAGISTRATE STEWART:
Introduction
On 02 September 2016 there was a collision between two cars at the intersection of Gundaroo Drive and Horse Park Drive. The plaintiff was the front passenger in a car driven by her husband. That car had stopped on Gundaroo Drive prior to turning left and entering traffic heading onto Horse Park Drive.
The first defendant was driving towards the same direction. Her car collided with the rear of the car that the plaintiff was a passenger in. The defendants admit that in doing so, the first defendant breached her duty of care, but claim that no injury was caused in doing so.
It is not disputed that the impact speed in the collision was a low one – the issue is whether any injury was caused by the first defendant’s negligence. The plaintiff claims general damages, past and future domestic assistance, out-of-pocket expenses, interest and costs.
The Plaintiff claims that she suffered the following as a result of the collision on Gundaroo Drive on 02 September 2016:
(a)A whiplash injury to the neck and back;
(b)Soft-tissue injury to the cervical spine;
(c)Aggravation of a previously asymptomatic lumber region;
(d)Aggravation of previously asymptomatic lumber hips;
(e)Dental occlusion;
(f)Fracture to upper right second premolar (15) and upper right central incisor (11);
(g)Bruxism;
(h)Pain and/or altered sensation and reduced movement of the tailbone, coccyx, legs, neck, shoulders, knees, back, hips, buttocks, feet and jaw;
(i)Paraesthesia of the fingers in the left hand;
(j)Generalised muscular aches;
(k)Headaches;
(l)Altered gait;
(m)Development of a corn on her left foot arising from her altered gait;
(n)Reduced balance;
(o)Reduced capacity for travel;
(p)Reduced quantity and quality of sleep;
(q)Reduced capacity to care for and play with her grandchildren;
(r)Reduced capacity to engage in social and leisure activities;
(s)Reduced capacity to perform domestic tasks for the benefit of her household;
(t)Reduced capacity to perform personal care and grooming tasks;
(u)Reduced capacity for heavy lifting and carrying;
(v)Reduced capacity for bending and extended walking, standing and sitting;
(w)The need for domestic and grooming assistance;
(x)The need to wear a dental splint;
(y)The need for medical treatment; and
(z)The need for medication consumption.
EVIDENCE OF THE PLAINTIFF
The plaintiff gave evidence in Court on 23 September 2019. She was born in the United Kingdom, worked in various administrative roles, stopped working to have a family in the late 70’s when she migrated to Australia and returned to administrative work. Her relevant medical history is summarised below:
| 1977 | Thyroidectomy as treatment for Graves Disease. |
| 1988 | Involvement in car accident causing a back injury, including causing problems with disks in her back, resulting in ongoing treatment including a surgery on her back in 1999. Surgery improved her condition with some limitations including some difficulty in household duties and the inability to continue team sport. |
| 2002 | Ms Barker commenced regular chiropractic treatment, due to stiffness across the upper back. Records show she stopped treatment in 2003 but she could not recall that. |
| 2004 | Experiencing migraines and headaches. |
| 2006 | Pain commenced in her right hip down to the leg. At that time Ms Barker began to see an orthopaedic surgeon and had surgery on her hip in 2006 which had a good outcome. |
| 2008 | Hysterectomy, which stopped migraines. |
| 2010 | Problems with lower back resulting in further surgery in 2010, with some complications (spinal fluid leaking) which improved her conditions with some restrictions on leisure activities and heavy lifting which continued for three or four months. |
| Sept 2011 | Left hip treated by an injection into the joint and a surgical repair to the right gluteus medius, which resolved her symptoms. |
| April 2013 | Further pain in her loin and back. |
| Oct 2013 | Successful urological procedure. |
| May 2014 | Further back pain (and neurological and bladder issues) treated by injection to the lumber spine and medication for bladder for a period |
| 2015 | Return of thyroid related symptoms. |
| May 2015 | Ms Barker ceased work, at which time she was physically healthy and active. |
| Aug 2016 | Further thyroidectomy. |
The plaintiff told the Court that at the time of retiring she was active, fit, would swim 20 laps and manage the household without difficulty or back pain. Her ability and health in this regard continued until the time of the accident.
The collision in question occurred when she was a passenger in the car with her husband. They were travelling home on Gundaroo Drive towards Horse Park Drive, the road was quite wet and there was light rain at the time.
Her husband indicated to turn left at the intersection, traffic was flowing in both directions on Horse Park Drive and they were looking for a break in traffic while stopped at the ‘Give Way’ sign when they were impacted at the rear of their car.
The back of the car was jolted, she hit her upper and lower front teeth together, she was pulled back into the chair, hit her head on the headrest and hit her upper and lower jaw together heavily. She recalled immediately saying “my back my back” in response to instant pain in her lower back.[1] She recalled after a few minutes she also had pain in her neck, head and jaw.
[1] Transcript 23 September 2019, 13.
When her husband had pulled up to the nature strip, she was unable to get out of the car because of pain in her back and legs.
She saw her General Practitioner Dr Wardman on the day of the accident. Dr Wardman made observations including that the plaintiff’s neck and back range of motion was “down by half”. A week later Dr Wardman noted high posterior neck pain, jaw pain that had started about 10 days after the accident, a chipped tooth, pain in neck and all of back, shoulder pain on both sides, lock back pain “radiating to the ilium on both sides... leg pain from the knee down, at night sometimes”, episodes of left knee giving way, some numbness in the left hand, sleep disturbed by pain, anxiety in the car at times, as well as incontinence and constipation. (Dr Wardman’s records were provided to me in the tender bundle, and that evidence was accepted by Ms Barker).
She travelled by air to Queensland in the few weeks after the accident. Taking off and landing put pressure on her back and sitting for a long time was uncomfortable. She was unable to sleep much on an unsupportive mattress and so took Valium and pain killers. She was not able to partake in the leisure activities her family were able to enjoy as she was unsure of her balance in the water and was not able to kayak or help at the playground with her grandsons as she normally would have
She had ongoing problems with her back, with walking, her knee giving way, balance and numbness in her left ankle upon her return from the holiday.
She saw her doctor about numbness in her ankle and jaw pain, and reported that her tooth 15 (upper right, crown on post) “came away” from her jaw.
She adopted the contents of a letter sent by her solicitors to NRMA on 31 January 2017 which detailed:
(a)Pain in the tailbone, upper legs, neck, right shoulder and both knees;
(b)Pain and restriction of movement in the lower back, right hip, thigh, left foot and toes;
(c)Headaches;
(d)Numbness in the left ankle;
(e)Poor balance due to foot pain;
(f)Difficulty lifting and carrying heavy objects; and
(g)Reduced capacity for standing, walking and sitting.
She fell walking upstairs on 12 January 2017 while on holidays due to not being able to lift her leg high enough for the step. On that holiday she did not swim (though this appeared to be due to her responsibilities with grandchildren swimming, rather than inability) and used ibuprofen, paracetamol and ice spray for pain management. She had massage, chiropractic and pedicure treatments at this time as she was not able to bend and reach her feet for foot care.
She had difficulty gardening for more than 30-40 minutes, and that because of her symptoms she required and continues to require about 2 hours of household assistance from her husband per week.
She was referred to Doctor Peake on 19 January 2017 who diagnosed a root fracture requiring replacement at tooth 15, which was completed on 23 January and 21 March 2017, as well as a crown fitting with Dr Jowitt.
She adopted the contents of a letter sent by her solicitors to NRMA in April 2017 that detailed:
(a)Pain in the tailbone, upper legs, neck, lower back, hips into legs, buttocks, and knees;
(b)Headaches;
(c)Numbness in the symptoms in both ankles and feet;
(d)Alteration of gait (walking unevenly and leaning when standing due to pain in the left hip and leg);
(e)Pain in the left ankle; and
(f)Poor balance due to foot pain;
In April 2017, she continued to have difficulty with domestic tasks including vacuuming, washing up and ironing. She also had difficulty walking and could tolerate no more than 40 minutes walking. She continued to use medication for pain and see a pedicurist every 6 weeks. Her symptoms remained largely the same in July 2017, though she was able to do household chores which did not include bending.
By the end of 2017 she had seen some improvement of her conditions, with limitations. Bending and some chores continued to cause her difficulty. At the end of 2017 she experienced a sudden back spasm which caused her pain. This was not treated with specific treatment though she kept up her regular appointments and chiropractic treatment
Her condition continued to gradually improve, with limitations, in January 2018. She said she continued to experience pain, restriction of movement and difficult with extended bending and gardening. She continued to use medication and used a knee pad for gardening. At this time she also returned to swimming before having a setback due to pain in the back and legs while swimming in January 2018. She did not return to swimming after that.
She had foot surgery relating to arthritic issues in February 2018, which resulted in an infection to her toe, which was cured with antibiotics.
As of 2019 she experienced the return of migraine symptoms and continued to experience pain and restriction in her neck, lower back and hip. She still had difficulty bending which impacted care of her feet. She also had difficulty walking on soft sand during a family holiday and felt unsteady and afraid of being knocked over in the waves.
For the 9 months prior to and at the time of the hearing her symptoms were still improving. The plaintiff stated that she paced herself, that she could walk for longer periods of time, and that she had improved ability for household chores. She still needed assistance lifting, carrying or reaching during household maintenance.
She previously received 2 hours of assistance per week, mainly from her husband, but that was now about 1 hour, apart from during periods of increased back pain. She last took medication three weeks ago, but that before that she would take medication almost every day.
She was taken to her schedule of out of pocket expenses, and adopted costs stipulated in her evidence, giving background as to chiropractic and dental treatment. She also adopted photographs of the rear of her vehicle after the accident.
Cross examination
The plaintiff accepted that she could not recall telling Dr Douglas that she usually swims for one kilometre twice a week. She maintained that she ceased lap swimming in January 2018 and said that she knew that to be a fact.
The surgeries to her toes did not cause her pain when walking - it mainly caused pain at night. Because it was a hammer toe, she had problems wearing shoes.
She accepted that she had pedicures after the collision at the same rate as before the accident, but distinguished that they were previously a choice, and had now become a necessity.
She accepted that she had chiropractic treatment for about 10 years before the accident and that she probably would have continued with some chiropractic treatment if the accident had never occurred.
She confirmed she did not know what speed the car that struck her was travelling. She knew it touched the tow bar but did not believe that it caused further damage. she disagreed with the contention that it was a minor bump. It was enough of a jolt “to make [her] go forward, hit [her] teeth and then come back and clench [her] rear teeth”.[2] She said she went forward first, then the seatbelt pulled her back.
[2] Transcript of Proceedings, 23 September 2019, 32.30.
It was suggested that if her seatbelt was properly fastened it would have prevented her body moving forward at all or only allow her to move slightly, causing no strain on her back or neck. She disagreed with those propositions and disagreed with the proposition that her mouth did not close forcefully.
She agreed that she went to see a practitioner that day, who prescribed pain relief and rest.
She initially gave evidence that she made a claim two or three weeks after the accident, but when she was shown her application, she agreed that she had made a claim only 3 days after the accident and that Dr Wardman had signed those documents. She had filled in the claim based on the pain and injuries that occurred at the time of the accident. She agreed that three days did not allow much time to recover and said that more areas of pain were emerging within those three days. She could not remember if she did not have a consultation with Dr Wardman that day, and that he had only signed the forms.
She agreed that she went to see a massage therapist, Mr Greenwood, 10 days after the accident but could not remember her exact symptoms at that time. She thought that Mr Greenwood had said to her that the accident was minor, and she would make a full recovery in weeks or months. She only consulted a lawyer after careful consideration.
She agreed that she saw Dr Wardman again 25 days after the accident and complained of a greater range of pain, including jaw, shoulders, back, neck, left knee, leg and hand, as well as incontinence and constipation. She agreed she had only complained of back pain when attending with Dr Greenwood. The other areas of pain and concern developed over time.
She disagreed with the propositions that the impact from behind did not cause the areas of pain described by her and that the impact was so minor it did not have capacity to cause any injury.
It was put to her that she received chiropractic treatment regularly for years prior to the accident due to pain from previous accidents and surgery. She disagreed and said she kept regular appointments regardless of pain.
She was asked about whether she experienced pain or difficulty lifting etc. after surgery to her back and hips up to 2011. She said that those problems were resolved, and she was able to do most things herself.
She had an implant in tooth 15 as a result of the accident. She accepted that tooth 15 had been subject to a post and a crown already, she had other implants and that tooth 16 had been extracted several years earlier due to root issues.
She agreed that she had seen a dentist and periodontist three weeks after the accident and accepted that at that time the dentist and periodontist did not raise any suggestion of issues with tooth 15. Pain first arose in December 2016.
She was asked why she did not make mention of symptoms relating to the accident to her GP during her regular visits after the accident. She said she saw her GP for other issues and saw no need to mention the symptoms and reiterated that she was experiencing the symptoms at the time.
She agreed that the first orthopaedic specialist she saw was Dr Rosenburg, who her lawyer referred her to 8 months after the accident. It was put to her that at that time she had a full range of motion and was advised to stay active doing low impact exercise and to “listen to [her] back”.[3] Ms Barker said she could not recall what was said.
[3] Transcript of Proceedings, 23 September 2019, 48.45.
She agreed that she saw Dr Negus about the same time. She agreed she could move her areas of injury but could not remember to what extent.
It was put that she still had full mobility in her neck and back without pain, but she disagreed with this and said moving forward and laterally caused issues.
She agreed that she spoke to Dr Woolley about the household tasks she could do and mostly adopted evidence of what she had told him. She could not recall saying she could do all the tasks but could do some or most of them if she paced herself. She had more time to pace herself now that she was retired, and was able to, for example, do the vacuuming in short bursts. She could ask her husband to assist her if necessary, and that he was always willing to help.
It was put that she had been entirely independent in terms of her own care and dressing etc. She said that she had occasionally needed help putting on trousers and socks due to bending and needed help with foot care. Her husband mainly did meal preparation and washing up but that she could assist if required and only if she paced herself.
She agreed that she could maintain her pre-accident household contributions to laundry tasks, shopping, spring cleaning, and tidying the car if she paced herself, did not lift heavy things, and occasionally had assistance. She disagreed with the contention that she could make her pre-accident contributions to gardening and said she could only spend 40 minutes to an hour doing gardening, when she used to spend a whole afternoon. She agreed that she could do the tidying and pruning if she paced herself.
It was again put to her that the accident was trivial, the forces involved were minimal and that she did not suffer injuries at the time. She disagreed with those propositions.
I formed the view that the plaintiff was trying her best to tell me the truth. I did not get any sense of malingering or exaggeration from her, rather she appeared to be doing her best to remember parts of a significant medical history with chronological accuracy. It seemed to me, for example, that it was not unreasonable for her to think that her dental problem was related to the accident as she had closed her teeth together so forcefully upon impact. Clearly her dental ailment was not related to the collision, but that example or the skilful cross-examination of her did not diminish her truthfulness in my view.
David Barker
Mr Barker is the husband of the plaintiff. He has known her for 18 years and they have been married for 17 years. He gave a history of the plaintiff’s health in that time. He is uniquely placed to give evidence about the plaintiff’s surgeries, recoveries and physical limitations this century.
The couple met in 2001 and had an active lifestyle until the plaintiff’s back surgery in August 2010. They had snorkelled together on holiday and undertaken walking. Household duties were assisted by a cleaner and ironer until about 2007. Outside chores were completed by Mr Barker with some assistance from the plaintiff.
The couple had initially retired in 2008 but decided to re-join the workforce in 2009. They both retired again in 2015 and from then until the accident Mr Barker recalled that the plaintiff was able to complete her usual chores and activities including leisure, gardening and home duties without difficulty. He noted that they walked regularly prior to the 2017 collision and that Ms Barker swam during this period.
He recalled the collision as hearing a ’bang’ and was shaken by the impact. He was holding the steering wheel and had more support than the plaintiff. She was ‘really distressed’ and had a ‘really shocked’ look on her face. She said, “My back”.
Mr Barker’s view was that the tow bar took the full force of the impact and was bent as a result. It was replaced by his insurer and was not inspected by any party other than him. A new towbar was tendered as Exhibit 7 by the defendant. It is obviously not bent at 90 degrees. All the evidence that I have to consider on this issue is the testimony of Mr Barker, the loss assessor’s photographs and Exhibit 7.
Post-accident the plaintiff displayed a decreased ability to walk any distance. She required help with dressing and chores. She could not lift washing, hang out washing, vacuum, brush, mop, clean windows or any activity that involved twisting or stretching. She did not undertake much ironing. Mr Barker undertook these chores for her.
He had not seen much of the plaintiff swimming in the 12 months prior to the hearing although she had swum off a boat at the Barrier Reef in June. She was distressed by her inability to walk long distances or on uneven surfaces such as sand or grass.
He observed that the plaintiff now has difficulty standing up from a kneeling position or when seated on a stool. This has affected her ability to take part in gardening chores such as pruning that she had previously enjoyed.
Cross-examination
Mr Barker agreed that the plaintiff saw a chiropractor monthly in 2002 and then from 2005 on. Her back became the primary focus after the operation in 2010.
Mr Barker did not agree that the impact in the collision on 02 September 2016 was ‘light’ – rather it was ‘much more’ force than running into a gutter.
He recognised that his wife was in pain as a result of the collision as he had known her for 18 years and knew how she reacted to pain.
Mr Barker agreed that he assisted with heavy lifting as he always had. He agreed that she started seeing a chiropractor soon after the collision. It was clear that he held chiropractors in high regard and didn’t see a particular requirement to see a medical doctor instead.
Slobdanka Graham
Ms Graham was the driver of the car that collided with the stationary car that the plaintiff was in. Liability for her negligence was admitted prior to hearing.
As she travelled along Gundaroo Drive heading North and approached the intersection of Horse Park Drive, she noticed the Barker’s car. She does not remember slowing but expected that she did slow prior to attempting to turn left. She looked for traffic to her right and then felt a bump and stopped. She thought it was like ‘hitting the pavement’ and was not thrust forwards or backwards by the impact.
She could see no damage to the Barker’s car. Her own car had damage to the passenger side and front grille (or ‘grid’ as she called it). The dent and grille damage were not repaired on the basis that the cost would have outweighed losing an insurance no claim bonus. The car was sold to a friend of a relative in the same state of disrepair.
She accepted in cross-examination that due to the nature of the impact she expected to see damage to the Barker’s car. The damage to her car was never assessed.
Dr Johnathan Negus
Dr Negus is a specialist orthopaedic surgeon who saw Ms Barker on one occasion and provided a report dated 12 February 2019. That report was tendered as part of Exhibit 1 by the Plaintiff. He was called and made available for cross-examination.
He agreed that there were no objective neurology and no objective signs in the cervical lumbar spine, the range of movement of the neck was not extraordinary and the range of movement in her back was reasonable given the history of surgeries. Importantly, Dr Negus agreed that he had to rely on the patient’s account for symptoms rather than clinical finings and that this was not uncommon in motor vehicle cases.
The plaintiff’s report of not lifting washing and using a different vacuum cleaner post-collision was not usual in Dr Negus’ view.
Upon re-examination Dr Negus gave the opinion that degeneration of the spine, regardless of whether it was symptomatic or asymptomatic in the patient, informed vulnerability to further insult and injury. This is because the discs are less compliant, and the surrounding joints are stiffer. It was not disputed by the defendant that degenerative spine disease was evident at several levels in the plaintiff’s lumbar spine.[4]
Dr Stephen Woolley
[4] Transcript of Proceedings, 24 September 2019, 77 - 78
Dr Woolley was called by the plaintiff and made available for cross-examination. His report was tendered as part of Exhibit 1.
Dr Woolley reported that Ms Barker is now able to conduct all her personal care needs – but with more time taken than prior to the collision. Compared to the pre-collision status, Ms Barker could now complete chores by way of self-pacing, breaking chores up and using a light hand-held vacuum. Activities involving bending, twisting and squatting resulted in increased low back pain. Dr Woolley recommended domestic assistance for those tasks.
Dr Paul Nicholls
Dr Nicholls is a dental surgeon who was called by the plaintiff and made available for cross-examination. His report was tendered in exhibit A.
He agreed that the chipped tooth at T11 may have been caused by the collision. The sum of his evidence left me with the view, that on balance, the injury to tooth 15 was not caused by the collision as there was no pain at that site until some three months after the collision. His evidence, however, confirmed the reality of the injury to that tooth as disclosed by the plaintiff.
Dr Andrew McIntosh
Dr McIntosh was called by the defendants. His expertise is in the areas of biomechanics, human factors and ergonomics. He is not medically qualified, and he did not professionally assess the plaintiff in person. His report and supplementary report are part of Exhibit 2 with Exhibit 11 including the articles referred to in those reports.
It was clear from the outset that Dr McIntosh’s opinion was that Ms Barker could not have suffered her reported injuries as a result of the collision. However, the resolute nature of Dr McIntosh’s opinion did not stand up to the test of cross-examination.
The effect of his two reports and cross-examination strikes me as the following: Dr McIntosh agreed that the impact speed of the defendant’s vehicle may have been as high as 11 km/hr, but didn’t think it would have been 15 km/hr. He confirmed that he was relying on vehicle damage to estimate this speed. He estimated a change of velocity speed of 5 km/hr as a result of the defendant’s vehicle travelling at 10 km/hr. There is no make and type specific data available for the two specific vehicles involved in this collision and no specific data in relation to the type of tow bar fitted to the plaintiff’s vehicle, so his assessment of impact speed and change of velocity are estimates.
Dr McIntosh was cross-examined extensively on the articles referred to in his reports. In particular – in the second Krafft et al article,[5] the study indicates that in the range of change of velocity of 5 to 10 km/hr there are definable categories of sufferers of neck injury ranging from a duration of 1 to less than 6 months and a category (small though it might be) of neck injury sufferers who suffer injuries lasting greater than 6 months. Further, there was a definable risk of symptoms for longer than 6 months in collisions commencing with a change of velocity from about 2.5 km/hr (on my reading the graph at Figure 14 of his first report.). That would appear to include collisions involving a stationary car being rearward hit by another car at a speed of between 10 and 15 km/hr where the change in velocity (following from Dr McIntosh’ second report at page 16) would be in the range of 5 to 7.5 km/hr.
[5] Krafft M, Kullgren A, Lie FA and Tingvale C, “Assessment of Whiplash Protection in Rear Impacts – Crash Tests and Real-Life Crashes”, Swedish National Road Administration June 2004, Figure 1.
Dr McIntosh could not explain the presence of the plaintiff’s injuries if they were not caused by the collision on 02 September 2016. His evidence did not change my assessment of the honesty and reliability of the plaintiff. It follows that I find she is amongst those in the low percentile group who suffer injuries from low change in velocity rear end collisions that persist for more than a month and indeed more than 6 months.
Defendant’s submissions
I reject the defendant’s argument in relation to the plaintiff suffering no injury. It essentially relies on the reports of Dr McIntosh to find this submission. The cross-examination of Dr McIntosh showed that whiplash type injuries such as those suffered by the plaintiff are present in low velocity rear impact collisions. Further, I have relied upon the plaintiff herself as a witness of truth and the reality that in relation to symptoms apart from clinical findings experts must rely on truthfulness of the patient.
I have, in part, accepted that not every ailment and injury that the plaintiff listed in her statement of claim is attributable to this collision. That has not led me to see her credibility or reliability as tarnished.
I have considered the evidence of the defendant as to the speed of her vehicle and the nature of the impact. I think that the experience of the impact would be somewhat different between the occupants of the car that hits and the one which is hit. I find that the plaintiff, her husband and the defendant were all telling the truth as best they could on this topic. Any difference is simply a difference in perception from the different sides (or ends) of the impact. In saying this, as I am of the view that the change in velocity was no more than 7.5 km/hr, perhaps little turns on it.
I have considered all of the evidence in coming to a decision on the impact speed of the defendant’s vehicle. Her car was never assessed for damaged and there was no independent evidence of damage to it. The tow bar tongue on the plaintiff’s vehicle was never assessed post collision, but it was replaced by the insurer of that vehicle. I have considered the evidence of each of the three people in the cars involved in the collision and Dr McIntosh’s opinion. He did not inspect either of the vehicles or the tow bar tongue and was (quite obviously) not present during the collision. There is a lack of data specific to both of the cars and the tow bar tongue that would allow Dr McIntosh to give more exact estimates. I find that the speed of the defendant’s car was somewhere between 10 and 15 km/hr at the time she collided with the rear of the plaintiff’s stationary car. This corresponds with “hitting the pavement”. As I understand the mathematics, that results in a change of velocity in the realm of 5 - 7.5 km/hr. Even if I am wrong and the speed was only 11 km/hr this would not change any of the outcomes here.
It therefore follows that I cannot accept a submission that to accept the defendant’s version of the impact disallows a claim for the plaintiff.
I accept the defendant’s argument in relation to tooth 15.
I reject the argument of the defendant about the nature of the deflection to the towbar tongue. The only person who was able to give evidence about the state of the tongue post-accident was Mr Barker. He was familiar with his own car, saw some deflection and, it should not be forgotten that his tow bar tongue was replaced by his insurer. In any event, it is probably of limited importance given the finding I have made about the change of velocity in the impact.
The defendant points to a lack of treatment being prescribed on visits to Dr Wardman after the day of the collision, 05 September 2016 and 27 September 2016. The defendant points to no treatment being sought from the plaintiff’s general practitioner.
The plaintiff has chosen to rely on her chiropractor and massage therapist rather than regular medical specialist attention. I do not accept the defendant’s submissions that these are reasons to reject her claim or cast sufficient doubt on her truthfulness and reliability to reject her claim.
The defendant also put forward detailed alternative submissions about the requirement for treatment and domestic assistance. It is clear that the plaintiff has continued to rely on chiropractic treatment since the accident. She has chosen not to rely on medical treatment. As was put on her behalf – the needs for her treatment have changed post the collision. I will allow the claim. For the same reasons I have allowed the future claim.
The provision that was sought and what I have allowed is quite modest and elements of it such as a yearly specialist review are entirely reasonable. Because of this collision the plaintiff has even more reason to undertake such review.
I reject the defendant’s submissions on domestic assistance. I disagree with any assertion that because the plaintiff is retired she should consume the extra time that it now takes her to complete domestic tasks. No case for such a proposition was provided to the Court.
It was clear on the evidence that the plaintiff has struggled with domestic tasks post-collision. Her injuries were not temporary even if they have been reduced in their severity. She is entitled to her claim on that basis.
In terms of out of pocket expenses the plaintiff reduced her claim by 50 per cent. I have further disallowed some of her claims below, but not to the level sought by the defendant.
Findings of fact
I make the following findings of fact:
(a)The plaintiff was born April 1956 and is now 64 years old.
(b)Prior to 02 November 2016 the plaintiff had pre-existing degenerative injuries to her lumbar spine but they were not, the source of any material pain, restrictions or discomfort in her neck, back and legs. She was healthy and active both walking and swimming several times per week. She did not require assistance with domestic chores other than heavy lifting.
(c)On 02 September 2016, the stationary car that the plaintiff was a passenger in was struck from behind by the defendant’s car.
(d)The impact caused a change of velocity no greater than 7.5 km /hr.
(e)The impact caused a slight further bending of the tow bar tongue on the plaintiff’s car and minor damage to the front components of the defendant’s car.
(f)As a result of the collision on 02 November 2016 the plaintiff suffered
(i)A whiplash injury to the neck and back;
(ii)Soft-tissue injury to the cervical spine;
(iii)Aggravation of a previously asymptomatic lumber region;
(iv)Aggravation of previously asymptomatic lumber hips;
(v)Dental occlusion;
(vi)Fracture to upper right central incisor;
(vii)Pain and/or altered sensation and some reduced movement of the tailbone, coccyx, legs, neck, shoulders, knees, back, hips, buttocks and jaw;
(viii)Generalised muscular aches;
(ix)Headaches;
(x)Reduced balance;
(xi)Reduced capacity for travel;
(xii)Reduced quantity and quality of sleep;
(xiii)Reduced capacity to care for and play with her grandchildren;
(xiv)Reduced capacity to engage in social and leisure activities;
(xv)Reduced capacity to perform domestic tasks for the benefit of her household;
(xvi)Reduced capacity to perform personal care and grooming tasks;
(xvii)Further reduced capacity for heavy lifting and carrying;
(xviii)Reduced capacity for bending and extended walking, standing and sitting;
(xix)The need for domestic and grooming assistance;
(xx)The need for medical or chiropractic treatment; and
(xxi)The need for medication consumption.
Damages
The plaintiff submitted that general damages should be assessed at $90,000. The defendant has countered without a figure and submitted that general damages should be minimal. Pursuant to s 99 of the Civil Law (Wrongs) Act 2002 (ACT) I have been provided with comparative authorities.
The plaintiff has endured pain for more than 3 years now. She has suffered as a result of a collision which was in no way attributable to herself. She has essentially put up with a lot of pain so that chores can be completed or relied on her husband where they could not be. A lot of extra time has been consumed because of the pain attributable to this collision.
There has been improvement since the collision, but the plaintiff is affected by a loss in quality of life in many ways – including her ability to exercise in the way she did pre-collision and regardless of the previous injuries she had experienced.
I think that the plaintiff’s claim is a little high and assess general damages as $75,000.00. Interest on half this sum at 2% for 3 years amounts to $2,250.00
The original tender bundle for out-of-pockets claimed $19,164.92. The plaintiff has now submitted a revised claim of $15,000.00 for past out of pocket expenses, noting that 50% of expenses for chiropractic treatment, massage treatment and foot care are sought.
I note my earlier findings about the lack of causation for dental injuries and do not allow the claim for tooth 15. That reduces the dental claim by $7,629.50 and gives rise to a need for recalculation.
I will reduce the original sum of $19,164.92 by $7,629.50 due to the failure to prove causation for the damage to tooth 15. I disallow the claim for Floressence day spa and further reduce the figure by $75.00. By halving the cost of Gungahlin Massage costs, the claim is further reduced by $110.00. By halving the pedicure cost the claim is further reduced by $321.75. By halving the cost of Belconnen Chiro Centre the claim is further reduced by $2206.50. By halving the cost of Podiatry Professionals the claim is reduced by a further $49.00. I therefore reduce the claim by a total of $10,391.75 and assess past out of pocket expenses as $8,773.17.
I allow the claim for claim for future out of pocket expenses to age 70. That being 7 years on the 3% table at $25.00 = $8,250.00.
I allow the past Griffiths v Kerkemeyer [1977] HCA 45 claim at $35.00 per hour x 1.5 hours per week x 3 years = $8,190.00. I decline to order interest.
I allow the future Griffiths v Kerkemeyer claim at 1.5 hours per week for 7 years x $35 per hour = $19,110.00
A summary of damages that I have assessed appears on the table below:
| General damages | $ 75,000.00 |
| Interest on general damages (half the sum of $75,000 at 2% for 3 years) | $ 2,250.00 |
| Past out of pocket expenses | $ 8,773.17 |
| Future out of pocket expenses ($25.00 at 3% for 7 years) | $ 8,250.00 |
| Past Griffiths v Kirkmeyer component (at $35.00 per hour x 1.5 hours per week x 3 years) | $ 8,190.00 |
| Future Griffiths v Kirkmeyer component (at $35.00 per hour x 1.5 hours per week x 7 years) | $ 19,110.00 |
| TOTAL | $ 121,573.17 |
The orders of the Court are:
1. Judgment be entered for the plaintiff against the defendants in the sum of $121,573.17.
2. The second defendant pay the costs of the plaintiff’s costs of the proceedings as agreed or assessed.
3. The usual orders as to interest.
4. Order 2 does not take effect for a period of 14 days and if a party notifies my associate in writing in that period that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
| I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Kefilina Faupula Date: 21 May 2020 |
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