Barnes v Burgess

[1988] TASSC 88

Serial No B20/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Barnes v Burgess [1988] TASSC 88; B20/1988

PARTIES:  BARNES, Pauline Janet
  v
  BURGESS, Leanne Denise

FILE NO/S:  65/1986
DELIVERED ON:  2 June 1988
JUDGMENT OF:  Underwood J

Judgment Number:  B20/1988
Number of paragraphs:  18

Serial No B20/1988

List "B"

File No 65/1986

PAULINE JANET BARNES v LEANNE DENISE BURGESS

REASONS FOR JUDGMENT  UNDERWOOD J

2 June 1988

1. This is an assessment of damages. On the 28 October 1985 the plaintiff, then aged 25, was injured when the car in which she was travelling was involved in a rear end collision. It was not disputed that the impact caused soft tissue damage in the vicinity of the lower lumbar spine or internal injury to a lumbar disc. Immediately after the accident the plaintiff experienced a feeling of numbness in her back. By the next morning she was in extreme pain.

1. The plaintiff consulted her general practitioner who prescribed analgesics and rest. She took a month's sick leave from her job as a general office clerk. A week after the accident, she commenced a course of physiotherapy. During this time, the pain was severe and continuous. The level of pain varied from day to day. Sometimes it was so bad it made her cry. Sometimes it radiated into the upper part of her legs, principally on the left side, causing her to limp. At its worst, the plaintiff said it felt like a needle being probed about in her lower back. The plaintiff's sleep was interrupted by pain and she was dependent upon her husband for all but the very lightest household duties.

1. On the 25 November 1985 the plaintiff went back to work but only for six hours a day. This made her back so painful that, on the 16 December, she took further time off work. She returned on the 2 January 1986 but, after two days, the pain was so disabling that she resigned. The plaintiff did not return to work until the 5 December 1986 when she started a part time job as a shop assistant. She is still in that employment but now by reason of choice and not circumstance as she conceded that by the end of 1987 she was fit enough to return to full time employment as an office clerk. Herein lies the nub of the dispute in this case. The defendant claims that the plaintiff has exaggerated the extent of her disability and that by April 1986 she was well enough to return to full time work as a clerk.

1. The defendant relied heavily upon the evidence of Mr Binns, orthopaedic surgeon, whom the plaintiff consulted on four occasions between the 13 February 1986 and the 12 May 1986. Mr Binns said that, in his opinion, the plaintiff had sufficiently recovered to return to her full time work by the end of April 1986. The plaintiff relied upon the evidence of Dr Clements, also an orthopaedic surgeon and Dr Crawford, a chiropractor. The former saw her only once, on the 25 August 1986, and thought at that time she was well enough to return to her work, "albeit with some discomfort". The latter did not see the plaintiff until the 9 June 1987 by which time the plaintiff had been back at work for 6 months. Inexplicably, Dr Crawford thought the plaintiff had remained unemployed until September 1987. Flawed by such fundamental factual error his opinions with respect to the plaintiff's ability to work have no persuasive value.

1. This case, typical of many, is one in which medical opinion concerning the plaintiff's ability to work is of little assistance. Objective indicia are almost entirely absent. The extent of disablement is almost totally dependent upon the plaintiff's subjective assessment of her symptoms. Strictly, medical opinion is confined to the question of whether such assessment is consistent with the sustained bodily insult. The veracity and accuracy of that assessment is for the court to determine.

1. After seeing the plaintiff in the witness box for a considerable period I have reached the conclusion that she was an honest and, generally speaking, accurate witness. Her evidence is corroborated by entries made in a diary kept by her husband. Principally, the diary is a record of her husband's athletic training programme but it also contains occasional entries describing the plaintiff's disability. It was not suggested that any of these entries were inaccurate.

1. However, from her evidence, I deduce that the plaintiff maintained an overly protective attitude towards her back which heightened her perception of pain and unreasonably postponed her return to normal duties. Although there was a conflict between the plaintiff's evidence of her symptoms and Mr Binns' notes of the history he took in February 1986, it does not affect the view I have formed of the plaintiff's evidence. Mr Binns' notes are not entirely consistent with some of the entries in the diary and he agreed that they were his words written as a summary of what he understood the plaintiff told him.

1. In February 1986 Mr Binns advised the plaintiff to wear a brace, continue with physiotherapy and swim, all of which she did. The plaintiff said that swimming exacerbated her symptoms so she gave it up. Although there was some evidence that persistence with swimming may have proved beneficial in the long term, there was no evidence that the plaintiff was aware of that view and, contrary to the submission of counsel for the defendant, I find that the abandonment of swimming was not unreasonable.

1. The brace gave the plaintiff considerable relief from her symptoms and gradually she was able to do more and more around the house. On the 10 April 1986 Mr Binns advised her to leave off the brace. This advice is recorded in the diary followed by the words "to try some light duties around the house". Back pain returned with the removal of the brace. The entry for the 24 April 1986 records "Pauline tried some ironing but got sore back 2 hours later and affected her for a week". I find that this entry accurately reflects the plaintiff's condition at that time and that she was then unfit for work. In addition to the household work done by the plaintiff's husband, his sister was employed from the 8 February 1986 to the 1 May 1986 for 2 hours per week at $10 per hour to help with the housework.

1. On the 9 May 1986 the diary notes, "Pauline tried cooking today but became very sore – started taking Dudeen [an anti inflammatory drug] again". On the 12 May 1986 the plaintiff consulted Mr Binns for the last time and he advised her to resume wearing the brace. This she did with consequential improvement. Over the next month or so the condition of the plaintiff's back gradually improved and she was able to do more and more around the house. The level and occurrence of pain in her back decreased and her sleep pattern improved. On the 25 August 1986 she consulted Dr Clements. The diary for that day reads "Pauline went to Dr Clements – said she could get a part time job". Immediately after this visit the plaintiff looked for part time work but was unable to find any until the 3 December 1986 when she got a job as a part time shop assistant, to start 2 days later. It was not suggested that the plaintiff lacked diligence in seeking part time work but it was submitted that, at least by the time she saw Dr Clements, she was capable of full time work. The plaintiff's view was that she should approach the return to work gradually, fearing that immediate resumption of full time work would result in a recurrence of severe symptoms. I find this view to be reasonable but I do not accept the plaintiff's claim that she was unfit for full time work until the end of a further period of twelve months. The diary records, and the plaintiff confirmed in her evidence, that just before Christmas 1986 she worked fairly long hours in the shop. No doubt at the end of a busy day she had some back pain but she was able to manage the work and I am not satisfied that the plaintiff was incapacitated from full time work after the end of April 1987. I also find that her failure to look for such work after that date was a failure to mitigate her loss.

1. The birth of the plaintiff's first child is due at the end of this year. Pregnancy was the reason for the plaintiff choosing to remain in her part time job even after she felt well enough to resume full time work.

1. At the present time the plaintiff is symptom free except when she sits for long periods or engages in undue stretching, bending or lifting. She says, and I accept, that using a vacuum cleaner causes her back to ache even though an upright model was purchased to alleviate this problem. I accept Mr Binns' opinion that the plaintiff will continue to have back pain on and off for the rest of her life. Sitting for long periods, carrying heavy weights, excessive bending and excessive stretching will continue to cause discomfort. During and, for a time, after pregnancy she is likely to suffer more discomfort than would have been the case had her back not been injured. I have no doubt that the plaintiff will learn to accommodate her disability by avoiding tasks which induce pain or by devising methods of performing such tasks which will avoid or minimise pain.

1. Prior to the accident the plaintiff enjoyed slimnastics, weekly squash and an occasional game of tennis. Since the accident she has not engaged in any of these leisure pursuits. I accept that, for about a year after the accident, the injury prevented her from following these activities but thereafter, there was no reason why she should not have gently eased herself back into at least some of these sporting activities. The plaintiff says that she used to garden a lot but since the accident has been unable to do so. Again I accept that she has not been, and will not be able to do heavy work such as lawn mowing without suffering back pain but I am not persuaded she is disabled from doing work in the garden which does not place undue stress upon her lumbar spine.

1. With respect to the claim for damages for diminution of future earning capacity I make a small allowance in the assessment of general damages. Although there may be some occupations which are no longer open to her by reason of her injury, the evidence tends to show that the diminution in her capacity to earn is not likely to be productive of financial loss.

1. Having regard to all of these matters I assess the plaintiff's general damages in the sum of $7,000.00.

1. To facilitate the assessment of damages for past diminution of earning capacity counsel agreed certain figures one of which was that between the 5 December 1986 and the 30 June 1987 the plaintiff earned $1, 856.06 after tax. From this, I infer that from the 5 December 1986 to the 30 April 1987 the plaintiff's net earnings were in the vicinity of $1,400.00. Using that figure and those agreed by counsel I calculate damages under this head as follows:

Loss of income from
5186 to 30487  $16,361.00

Less paid by the M.A.I.B.          $  3,131.20
  Less earned          $  1,400.00      $  4,531.20

(Rounded Off)      $11,830.00

1. With respect to the provision of services rendered necessary by the defendant's tort, some of which were performed gratuitously and some of which were paid for, I allow the sum of $500.00. I allow the special damages as claimed:

Cost of swimming therapy        $  40.00

Taxi fares  $  14.80

Upright vacuum cleaner            $329.00

Wheeled clothes trolley             $  15.00

$398.80

1. There will be judgment for the plaintiff for $19,728.80.