Border v Miculeanic and Suncorp Metway Insurance Ltd

[2005] QDC 258

DISTRICT COURT OF QUEENSLAND

CITATION:	Border v Miculeanic & Suncorp General Insurance Ltd [2005] QDC 258
PARTIES:	BORDER MICHELLE COLLEN
Plaintiff
RODICA MICULEANIC
First Defendant
SUNCORP GENERAL INSURANCE LTD
Second Defendant
FILE NO/S:	D40 of 2001
DIVISION:
PROCEEDING:
ORIGINATING  COURT:	District Court, Beenleigh
DELIVERED ON:	26 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Nase DCJ
ORDER:	Judgement for the Plaintiff in the sum of $106,287
CATCHWORDS:
COUNSEL:	Mr J. Lee for the Plaintiff No appearance by or on behalf of the First Defendant Mr M.J. Liddy for the Second Defendant
SOLICITORS:	Keith Scott & Associates for the Plaintiff Walsh Halligan Douglas for the Second Defendant

1. This is an action by Michelle Colleen Border (“the Plaintiff”) in damages for personal injuries suffered by her in a motor vehicle accident on 1 March 2000. The First Defendant is Rodica Miculeanic, the Second Defendant is Suncorp General Insurance Ltd (“the Insurer”).

2. The Plaintiff was driving her Corolla motor vehicle to work on the morning of 1 March 2000 when hit from behind by a vehicle driven by the First Defendant. At the time of the collision the Plaintiff was stationary at traffic lights. Liability is admitted, the contest at trial being confined to the assessment of damages.

3. At the time of the accident (1 March 2000) the Plaintiff was 44 years of age. She was the sole carer of two children: a daughter, Deanie, who was then aged 17, and a boy Robert, who was then aged 11. Deanie was in year 12 at Windaroo State High School, while her son Robert was attending the Charlotte Park Primary School.

4. The Plaintiff completed her work obligations that day, although she said she suffered from shock and a headache, involving pain travelling down her neck. She also complained of paraesthesia in her left arm. She said that turning her head caused pain. She described the pain as “pretty bad”[1] and in evidence (in retrospect) rated the level of pain as 9 out of 10[2].

   [1] T18

   [2] T18 3 T18

5. The Plaintiff took Panadol for the headache/pain3 and continued working. At the time she was employed as a data sales officer at the Telstra shop at Browns Plains. Her first medical consultation occurred on 5 March 2000 (Dr Wilkinson) about an unrelated medical problem. The second consultation was on 14 March 2000 (Dr Dunne), when she complained about her continuing headaches, pain associated with her neck and continuing paraesthesia in the arm. To this point she had not suffered any pain specific to her lower back.

6. On the morning of 21 March 2000 the Plaintiff experienced severe back pain on attempting to get out of bed. Later that day she consulted Dr Wilkinson about the pain in her lower back. He prescribed pain killers and rest.

7. From 21 March 2000 until trial the Plaintiff continued to experience problems with her lower back. While she continued to work, she felt back pain when required to stand for long periods. She also suffered intermittent “flare ups” of back pain which she said lasted for a number of days[4]. On five occasions when suffering a “flare up” of back pain the Plaintiff obtained medical help, usually in the form of acupuncture.

   [4] T20

8. I accept the Plaintiff’s account of her back pain is truthful and is a reasonably accurate account of the pain she experiences. It is also undoubtedly true that the Plaintiff now limits her activities to avoid triggering a “flare up” of back pain.

9. Her accounts of her symptoms to her treating doctors and during medico-legal consultations are generally consistent with her evidence. These accounts were given over a lengthy period of time and exhibit a reasonable consistency[5].

   [5] The details of her consultations are as follows:

10. The only radiological investigation of the Plaintiff’s spine is a plain x-ray of her lumbosacral spine taken on 13 July 2000. This x-ray did not detect any abnormalities.

11. At trial the defence argued the Plaintiff’s ongoing lower back symptoms are unrelated to the motor vehicle accident on 1 March 2000. Or, cast in terms of the onus of proof on the Plaintiff, that the Plaintiff had not satisfactorily established a causal link between her ongoing symptoms and the motor vehicle accident on 1 March 2000. The defence argument is based on the opinion evidence of Dr Boys (an orthopaedic surgeon whose practice is primarily the preparation of medico-legal and other reports) and Dr Adams (whose speciality lies in occupational medicine). Mr Liddy, who represented the Insurer at trial, also drew support from the evidence of Dr Weidmann (a neurosurgeon) who in cross-examination tended to agree it was more likely than not the lower back symptoms are not related to the motor vehicle accident6.

12. Dr Boys is of the opinion that, because of the delay in the emergence of low back pain, the Plaintiff’s ongoing low back symptoms are unrelated to the motor vehicle accident on 1 March 2000. The delay is 20 days. In Dr Boys’ opinion the Plaintiff’s low back pain is attributable to degenerative changes to her lower back7. Dr Adams is substantially of the same opinion, describing the link as “at best tenuous”8. Dr Adams thought the failure to complain of lower back pain when the Plaintiff visited her General Practitioner for an unrelated problem on 5 March 2000 militated against any link between her lower back problems and the motor vehicle accident on 1 March 2000. Dr Adams differed from Dr Boys in that he did not attribute the Plaintiff’s symptoms to degenerative changes in the spine; rather he said her symptoms were not a result of any pathology he was able to identify9. In this connection it should be said the x-ray did not provide any substantial support for the alternative explanation of unrelated degenerative changes to the Plaintiff’s spine favoured by Dr Boys.

13. For her part the Plaintiff relies on the opinion evidence of Dr Pentis (an orthopaedic surgeon). Not surprisingly, when Dr Pentis gave evidence he was examined closely on this aspect by Mr Liddy. As I understood Dr Pentis he thought the onset of severe low back pain on 21 March10 would not have occurred without a cause11. Because of the absence of any symptoms leading up to the initial onset of back pain on 21 March he did not believe this initial episode of back pain was attributable to degenerative changes in the spine. The mechanism Dr Pentis favoured was that of trauma to the lower back in the collision causing some damage, and accompanied by either masking of the immediate pain by other problems, or the back remaining symptomatic until some further event (e.g. a sneeze or as in this case, getting out of bed one morning) suddenly brought on symptoms12. Dr Pentis thought there was some existing degeneration of the spine which became symptomatic as a result of trauma to the Plaintiff’s spine in the motor vehicle collision on 1 March 2000.

14. On balance I prefer the opinion evidence of Dr Pentis. Once the genuineness of the Plaintiff’s symptoms is accepted, then I am satisfied the most likely cause of the onset of symptoms on 21 March 2000 was the trauma suffered in the accident on 1 March 2000. I accept the substance of Dr Pentis’ opinion evidence that trauma in the collision is a relatively more likely cause of her symptoms than degenerative changes to the spine.

15. The Plaintiff had commenced working part time for Telecom in early 1994. From March 1995 she worked full time in the business, which was by then conducted by Telstra. The Plaintiff worked at Telstra shops at Darwin, Adelaide, and Browns Plains (Brisbane). At Adelaide and Browns Plains she was involved in opening a new shop. At the time of the motor vehicle accident on 1 March 2000 she was a data sales officer.

16. The Plaintiff continued working at the Browns Plains shop on a full time basis until March 2001, when she elected to work on a part time basis. Although the move to part time work meant she lost the title of data sales officer, she continued to do much the same type of work. In January 2002 the Plaintiff resigned altogether from Telstra. Since her resignation she has only worked for two short periods of time. The first was with a business conducted by her sister and her sister’s husband, the second with a business conducted by a boyfriend. Apart from these two short periods of employment the Plaintiff has not worked in paid employment or endeavoured to find paid employment[13].

    [13] T124

17. The major areas of dispute in assessing quantum at trial were the allowances for economic loss (past and future), the Griffiths-v-Kerkemeyer claim, and general damages.

18. One difficulty in assessing the Plaintiff’s past and future economic loss is that she undoubtedly retains a capacity to work. The occupational therapist (Ms Bentley) retained by the Plaintiff concluded that while the Plaintiff is likely to have ongoing difficulty working in positions which involved long periods of standing/walking/sitting, lifting and carrying, and driving she believed the Plaintiff could cope safely with receptionist work[14]. Dr Adams though she could work in customer service or as a sales assistant[15]. Dr Boys thought there was no physical condition evident which would preclude full time employment in a retail capacity[16], although it unclear to me whether Dr Boys brought into account her ongoing complaints of low back pain. If he did not then his opinion on this aspect is of limited assistance. Neither Dr Pentis nor Dr Weidmann suggested the Plaintiff was incapable of undertaking suitable work.

    [14] Report dated 7 August 2002 T14 (exhibit 1)

    [15] Report dated 17 July 2003 T3 (exhibit 10)

    [16] Report dated 1 October 2002 T4 (exhibit 9)

19. The fact the Plaintiff has not made any serious efforts to re-enter the workforce is puzzling. At the time of the accident the Plaintiff placed value on physical fitness, and enjoyed working with Telstra. She was the sole support for two school aged children, and, in addition was paying off a mortgage on a property at Darwin. She was therefore well motivated to continue working. I think that when she said in evidence17 she enjoyed working for Telstra that statement did reflect her attitude to work and Telstra at that time.

20. The explanation may lie in the fact the Plaintiff is overprotective towards her back. While working full time following the accident she found long periods of standing caused back ache. The back pain did not prevent her working but did tend to make her irritable after work. Apart from back ache caused at work the Plaintiff also suffered more acute periods of pain, usually lasting for about five days. On some occasions she sought medical attention on other occasions she did not. The Plaintiff said in evidence she had come to recognise the signs that preceded an episode of more severe back pain (what she described in evidence as a “flare up”). In light of the limited number of “flare ups” over the entire period from the accident to trial it is possible the Plaintiff has become overprotective of her back. The reasons the Plaintiff advanced in evidence for not endeavouring to find employment were fear of back flare ups and a loss of self-confidence18.

21. In any event, whatever the true explanation for the Plaintiff’s choice not to look for appropriate work, on all of the medical evidence, I do not accept the Plaintiff has no capacity for work.

22. In assessing the Plaintiff’s claim for past economic loss it is necessary to consider whether it was reasonable for the Plaintiff to change from full time to part time employment in March 2001, and then to finally cease employment in January/February 2002.

23. The Plaintiff in evidence in chief said that she changed because the back pain she felt from prolonged standing at work was adversely affecting her family relationships19. Later in evidence she said she changed to part time work because she could not cope with the pain and because of her children20.

24. In November 2000 the Plaintiff had told Dr Pentis that she suffered a dull back ache at work. At that time the Plaintiff had been working for approximately seven months. Dr Pentis was left with the impression the Plaintiff was coping at that stage. Shortly afterwards (6 December 2000) the Plaintiff told Dr Weidmann that she currently suffered minor low back discomfort which was worse at the end of a long day at work. Dr Weidmann recorded that the Plaintiff felt she could manage at that time.

25. The Plaintiff’s choice to change to part time employment with Telstra in March 2001 was not one based on “medical necessity”. Despite the absence of any medical advice to reduce her work hours I think it was reasonable for her to reduce her work hours if the back pain was adversely affecting her relationship with her children. However if the Plaintiff wishes to claim the reduced hours of the loss I believe she has and had an obligation to mitigate the loss by endeavouring to find other work within her capacity.

26. The Plaintiff’s decision in January/February 2002 to cease employment with Telstra was not one based on medical grounds. She was at that time working limited hours21. The Plaintiff said in evidence that she felt her managers were trying to force her out of Telstra22. I believe her employment issues with Telstra led to her decision to leave.

27. In these circumstances the Plaintiff, if she wished to claim compensation for her loss of employment, had a duty to mitigate the claimed loss by endeavouring to find other suitable employment. In this case the Plaintiff faces the difficulty that, although she retains a capacity for work, she has made no endeavours to find suitable employment.

28. I am satisfied the Plaintiff has suffered a diminution to her earning capacity as a consequence of her back injury. The occupational therapist noted the Plaintiff is likely to have ongoing difficulty performing work with long periods of standing/walking/sitting, lifting and carrying, and driving. These factors restrict her employment options and her earning capacity. Unfortunately there is no logical method of quantifying the Plaintiff’s loss. In the circumstances all that can be done is to make a global assessment for past and future economic loss. $65,000 is I believe a reasonable assessment for economic loss.

29. The award for general damages should recognise the restrictions on her recreational and leisure activities. This factor is relatively important for the Plaintiff as before injury she placed value on her general fitness and level of activity. Moreover she will have to live with back pain for the balance of her life. If the Plaintiff does resume working she may have to live with a level of back pain on a routine basis. In all the circumstances and taking into account the other injuries the Plaintiff suffered in the accident $30,000 will be allowed for general damages. Interest of $1,500 will be allowed on this item[23].

    [23] Calculated on the basis of 2% p.a. by $15,000 for five years.

30. The claim for special damages is confined to an allocation for the Health Insurance Commission ($187.60) and pharmaceuticals. The evidence for the pharmaceutical claim is contradictory. In the initial statement of loss and damage (14 June 2001, 5 March 2002) an estimate of $28 is provided. In later statements of loss and damage (18 November 2003, 29 September 2004) the claim is estimated on the basis of $10 per week. The Plaintiff in evidence claimed $10 per month[24]. In the circumstances pharmaceuticals will be allowed on the basis of $10 per month. This roughly works out at $600. For further pharmaceuticals a global allowance of $1,000 seems reasonable in the circumstances.

    [24] T36.

31. The Plaintiff claims a substantial amount as Griffith-v-Kerkemeyer damages ($12,040). In arriving at a realistic figure for Griffith-v-Kerkemeyer damages, it is important to keep in mind the Plaintiff’s various statements when interviewed for forensic reports. The occupational therapist (Bentley) said her understanding was that the Plaintiff required some assistance during “flare ups” but otherwise was independent in respect of the activities of daily living[25]. Dr Weidmann, in his report, noted the Plaintiff did not require assistance with day to day activities[26]. Dr Boys noted in his report (1 October 2002) that the Plaintiff did normal housework[27]. Dr Adams noted in his report (17 July 2003) the Plaintiff was independent in all aspects of personal care[28], while having difficulty with vacuuming. Apart from her statements to medical professionals and the occupational therapist over a period of time there is the consideration that her daughter Deanie had not been living at home for the six months before trial, and, in the same period her son Robert obviously spent limited time on household and garden chores. The household and garden work Robert does is consistent with a reasonable division of work between a mother and a teenage child. On the other hand the Plaintiff has made claims of significant work by her children (particularly by Deanie) about the house[29]. Despite problems with the Plaintiff’s recall[30], and the fact that her dependence was probably greater in the period after the accident and is probably greater during periods when her back flares up I am satisfied that the Plaintiff’s children did more work about the house as a result of the Plaintiff’s back pain. Of course not every household chore by a child may be claimed under the Griffiths-v-Kerkemeyer principle. In most households there is some division of work as part of the ordinary household arrangements.

    [25] T75, 76

    [26] Report dated 6 December 2000 para. 7.2 (exhibit 4)

    [27] Report dated 1 October 2002 T2(exhibit 9)

    [28] Report dated 17 July 2003 T2 (exhibit 10)

    [29] For example in the statement of loss and damage dated October 2004 (exhibit 13) the Plaintiff claimed

    [30] During cross-examination the Plaintiff said it was very hard to try to remember back: T98.

32. Overall I am satisfied the Plaintiff is entitled to a claim for gratuitous care. This much is conceded by Mr Liddy, who, in his written submissions suggests $4,000 should be allowed for past gratuitous care and $2,000 for future gratuitous care. Given the state of evidence I believe that allowances of $4,000 for past gratuitous care and $4,000 for future gratuitous care are reasonable.

33. The assessment therefore is as follows:

    General damages ........................................................................................30,000

    Interest on general damages ……………………………………………......1,500

    Economic loss (past, future and including superannuation and interest) …65,000

    HIC ……………………………………………………………………….......187

    Pharmaceuticals ………………………………………………………………600

    Future pharmaceuticals ……………………………………………………..1,000

    Griffith-v-Kerkemeyer (past) ……………………………………………….4,000

    Future gratuitous care ……………………………………………………….4,000

    Total … …………………………………………………………………$106,287

34. Mr Lee, who appeared for the Plaintiff, objected to cross examination of the Plaintiff on the various statements of loss and damage signed by her. At trial the cross examination was allowed on a conditional basis. I now formally confirm the cross examination on the basis the witness was merely being examined on her own documents. Such cross examination is permissible. The circumstance the documents happen to be statements of loss and damages is merely incidental.

35. Judgement is given to the Plaintiff in the sum of $106,287.

i.          On 21 March 2000 presented with low back pain to General Practitioner (Dr Wilkinson).

ii.         On 12 July 2000 presented with back pain to Dr Ting. Gave a history of intermittent back pain. Treated with acupuncture. Subsequent presentations for treatment for back pain on 10 May 2000, 21 May 2001, and 18 June 2001.

iii.        Medico-legal consultation 20 November 2000 with Dr Pentis. History of injury to neck, and paresthesia of left arm at time of accident, with onset of back pain three or four weeks later. As at November 2000 complaints of dull back ache at end of day from standing with one major flare up since onset of pain.

iv.        Medico-legal consultation 6 December 2000 with Dr Weidmann. Gave a history of neck stiffness, paresthesia of right arm, head ache and stiffness in lower back (which became worse). As at December 2000 complaints of neck pain (tenseness, tightness), headaches once a week, and minor low back discomfort, worse at the end of a long day at work.

v.          On 10 May 2001 presented with an episode of back pain. Treatment with acupuncture (Dr Ting).

vi.        On 18 June 2001 presented at Logan Hospital with an episode of acute back pain. Said it was the fourth major episode since a motor vehicle accident.

vii.       Medico-legal consultation 1 October 2002 with Dr Boys. Gave history of paresthesia in left arm as result of accident, with headaches three or four days later. Described the delayed onset of back pain with a continuing history of intermittent headaches and lower back discomfort punctuated by episodes of more significant back pain on four/five occasions. As at October 2002 minimal symptoms of neck pain, complaints of occasional headaches, and lower back strain after protractive injury.

Deanie was required to work 17 hours a week. Inconsistent claims however are advanced in earlier
statements of loss and damage: in the statement dated 5 March 2002 (exhibit 16) the only claim advance
in respect of Deanie is for a period of two weeks post accident for four hours a day.