Brown v Wilson
[1991] TASSC 148
•24 June 1991
Serial No B34/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Brown v Wilson [1991] TASSC 148; B34/1991
PARTIES: BROWN
v
WILSON
FILE NO/S: 309/1983
DELIVERED ON: 24 June 1991
JUDGMENT OF: Crawford J
Judgment Number: B34/1991
Number of paragraphs: 38
Serial No B34/1991
List "B"
File No 309/1983
BROWN v WILSON
REASONS FOR JUDGMENT CRAWFORD J
24 June 1991
The plaintiff, Nancy Elizabeth Brown, was injured in a motor vehicle accident on Friday 20 August 1982. She was the driver of a vehicle which was struck from behind at St. Peter's Pass. Liability has been admitted.
PLAINTIFF'S PRE–ACCIDENT HISTORY
She was born on 7 June 1954 and educated at Oatlands and Bothwell to Grade 10 level, leaving school at the age of 16 years. She has no particular educational qualifications for employment. From about six months before leaving school until the age of 18 she worked in a Bothwell cafe and grocery shop. The work involved waitressing, cooking, cleaning and filling shelves with groceries. She was then employed as a cleaner at the Mary Ogilvy Home at New Town until becoming pregnant with her first child in 1973, probably close to her 19th birthday. She has not been in employment since.
She has three children, Theresa being born on 13 October 1973, Colin on 22 November 1976 and Rodney on 31 July 1980. After a short period in Tunbridge she moved with her husband to Campbell Town in 1976 where they and the children have lived ever since, except that Theresa now works and lives in Launceston during the week. The two boys attend school at Campbell Town. Mrs Brown said that it was her intention once Rodney commenced primary school (that occurred in about 1986) to return to employment.
At about the time they moved to Campbell Town Mr and Mrs Brown acquired their present home with a 25 year mortgage. Prior to the accident she was primarily responsible for the house–work and care of the children. Her husband's occupation is a wool presser and self–employed fencing contractor and during the shearing seasons he has been away from home from Mondays to Fridays from time to time. This still occurs. Prior to the accident she used to bring the wood in and split it, particularly when he was away. She did all the house–cleaning. She spent several hours each week in the garden where there were grown flowers and vegetables. She mowed the lawn, weeded and dug. She had no paid help around the house.
She enjoyed family outings such as bush barbecues for the whole family in weekends. She played badminton and tennis socially. Badminton she played twice a week for about two hours, mainly at night. Tennis occupied about two hours on one afternoon a week. She enjoyed her sport for the activity and also for social reasons. She knitted a lot. She and her husband went to football dances and cabarets, although she was not a keen dancer. Generally speaking she enjoyed good health.
INJURIES
I accept all of the plaintiff's witnesses as honest. It was not suggested by the defendant's counsel that they were not. However, particularly because the trial occurred over eight years after the accident, Mrs Brown's recollection was not perfect and to gain the history of her pain and suffering it has been necessary for me to piece together her evidence and the medical evidence.
She does not recall the accident. Her first memory is of feeling giddy, dazed and numb on the roadside. She had a large lump on her head above the right ear. Later in the day she developed a headache and soreness and stiffness in a number of places including her neck, right shoulder, right arm, chest, hip and leg. She consulted a general practitioner. Over the following weekend she suffered headaches, giddiness and nauseousness. The soreness in her shoulder and arm remained. Her husband attended to the house–work for her until the Monday when he had to go to work. Later that week she saw her general practitioner again. Her neck was aching and very stiff and he prescribed a cervical collar which gave her a little relief. The neck ache was "severe enough to make you mad" according to Mrs Brown. She was referred to an orthopaedic surgeon, Mr Bye, who found decreased neck movement, particularly to the right and a lesser degree of restriction of flexion and extension. She was tender over the muscles around the root of her neck. There was slightly decreased sensation in the right arm and a possibility of a little decreased power in it. Mr Bye's diagnosis was of neck strain, particularly at the root of the neck, and a possible strain of the nerves of the brachial plexus giving rise to the arm problem.
The precise physiological derangements which have led to her pain and suffering as a result of the accident were not clearly established by the evidence but that is of no importance. Her complaints are genuine and the contrary was not submitted by the defendant.
The evidence was vague concerning her suffering and treatment from September 1982 until July 1983. She wore the cervical collar all day at first and also on some nights because of headaches. She used it particularly for over a year but since then its use has mainly been confined to occasions when she has driven a motor vehicle for a relatively long period of time, for example for a trip from Campbell Town to Hobart. She also had some physiotherapy in the early stages. It provided some relief in her neck and arm.
Mrs Brown also gave evidence of lower backache starting on the day after the accident. Some days it would be present all day and on other days, about half of them, not at all. At times it became severe enough to force her to sit or lie down for half an hour. She took Panadol for it which provided some relief. Standing for a time, and also activity, brought on the pain. Activity above her head, for example cleaning windows, would cause giddiness and an ache, and she would be forced to rest.
Her neck and arm pain made her bad tempered and caused disturbed sleep. Some weeks she would have to get up on three or four nights a week, and she did so about two nights a week at the time of the trial.
Heavy domestic work, such as mopping a floor, brought on neck and lower back pain forcing her to rest for ten to fifteen minutes and then continue with the work. Carrying her youngest child brought on such pains. Carrying a basket of washing did the same, and so she acquired a trolley to avoid it. Carrying firewood could produce the same result.
Since the accident she has hardly been able to do any work in the garden. She has given up sport. Occasions of family outings for bush barbecues have been considerably reduced because of her discomfort. Driving a motor vehicle can cause a pain in her leg after an hour or less. Being jolted on rough roads can cause neck pain and headaches. Her social life has been considerably reduced by her injuries. She has only been to one football dance since the accident. After sitting for a time she needs to stand and walk around to relieve an ache in her lower back.
At times her suffering can severely affect her ability to concentrate. She complained in evidence that her memory has been affected by the injuries. I did not notice any memory problem when she was giving evidence except for difficulty in being able to give a precise history of her pain, suffering and treatment which I thought was consistent with the passage of time and consequent blurring of events. I do not accept that her injuries have affected her memory except to the extent that at times her suffering has inhibited her ability to concentrate.
It seems likely that her pain and suffering lessened considerably between September 1982 and July 1983 for there was no evidence of any attendances on doctors after 17 September 1982 until July 1983. From July 1983 to May 1984 she had consultations with and treatment from Dr Jackson on a number of occasions. From May 1984 until April 1986 it seems that the severity of Mrs Brown's symptoms abated once again. However from April 1986 until October 1989 there was a fairly consistent history of attendances and treatment with some further treatment in May 1990 and then an apparent gap until the trial in October. Significant treatment was as follows:
18 July 1983 Cervical Epidural
10 August 1983 R Cervical facet Block
23 September 1983 Bilateral occipital nerve block
14 October 1983 Lumbar Epidural
12 May 1986 Lumbar Epidural
16 June 1986 R C2–3–4 facet block
10 December 1986 R C2–3–4–5–6–7 facet block
22 April 1987 Lumbar Epidural
23 September 1988 Lumbar Epidural
25 January 1989 R L3–4–5–S1 facet block
25 August 1989 R C3–4–5–6 facet block
4 May 1990 R C3–4–5–6 nerve root block.
The treatment on those dates signifies that pain being suffered by the plaintiff became unbearable for her. The treatment gave her substantial relief.
Headaches give her the worst pain of all her complaints and they are also the most incapacitating. Without treatment she suffers headaches once or twice a week. They may last one or two days and are very severe. She takes pain killing tablets which relieve the problem but do not remove the headaches completely. They commence through no apparent cause. Watching television or reading makes them worse. The blocks tend to provide almost complete relief for about six months. In that period she will have only about two bad headaches. Thereafter they gradually return, their frequency and intensity building up. She puts off having further blocks because she dreads the thought of more needles. This is a reasonable attitude. Eventually because she can stand the headaches no longer she allows Dr Jackson to admit her to hospital and a nerve or facet block is performed. Associated with her headaches are feelings of nausea.
She suffers a lot from neckache, which is brought on by activities such as cleaning, hanging out the washing and vacuuming. After a time she must stop and rest and the pain passes after about half an hour. Her husband gave evidence of having seen her stop hanging out the washing and of going to help her. She said she normally rests halfway through that chore. Panadol partly relieves her. She also experiences giddiness with that chore. Less than half of the time a headache follows the neckache. Associated with the neckache is neck stiffness which can last for 1 or 2 days. Nerve blocks provide considerable relief until their affects wear off.
Housework such as washing floors, general cleaning and lifting can cause an ache in her right arm and shoulder. Also hand watering of the garden will cause this if the hose is held in her right hand, but not if it is held in the left hand.
I find that her complaints of loss of sensation in the right arm and a feeling of pins and needles in the fingers arose out of a carpal tunnel syndrome which was corrected surgically by Mr Bye in January 1990. It was not caused by the accident. Mr Bye could not assert positively that it was.
Lower back pain arises from lengthy sitting, particularly when driving a car, and also from lifting and vacuuming. Panadol partly relieves it. She also gains relief at times from walking around or lying down and the pain will often disappear then. The epidural injections give her real relief from this back pain for 12 months or sometimes longer. The same activities may produce pain but to a much lesser extent. Eventually the effects of an epidural injection will wear off and the intensity of pain will increase until she can no longer put up with it and Dr Jackson performs the procedure once again.
If Mrs Brown gets up quickly after being bent over she may experience giddiness. This can occur up to twice a month and the sensation may last for an hour. It can occur on getting up from bed. Resting by sitting will cause the feeling to pass.
The relief provided by the epidural injections and the blocks is real and substantial but not permanent. For as long as 5 to 6 months or even longer she can perform housework such as mopping of floors, cleaning of windows and hanging out the washing without experiencing significant pain. But eventually pain is associated with such activities and it increases in frequency and intensity until she can stand it no longer and one or both of the procedures must be repeated.
She is now more prone, because of her suffering, to bad temper and depressed moods. Sexual activity can also cause back pain.
Mrs Brown agreed with the following propositions. It is a fair summary to say that now she can do most of the things she could do before the accident, putting active participation in sport aside, but she does not derive as much pleasure from them as she used to and it takes her longer to do various things. Except when the pain gets so bad that she is forced to see Dr Jackson and have injections, the pain is annoying rather than crippling. It gets to the stage after a certain period of time where it becomes so bad that she needs to have an epidural injection or a nerve block. It is a reasonable summary to say that she does not walk around in constant pain. It is just that she has problems when she gets up in the morning and problems from over exertion and activity that she should not have done and at the end of a 6 or 12 month period following an epidural injection or nerve block, the pains commence to become fairly bad once again. The time eventually arrives when her suffering becomes severe and she puts up with it for as long as she feels able.
Counsel for the defendant did not dispute that the plaintiff has suffered pain and will probably continue to do so in the future, but he submitted that the assessment of damages in regards to the future should reflect the possibility that some of her suffering has arisen from what he referred to as functional overlay. The evidence of Mr Bye, who knows the plaintiff quite well, suggests that there is little of this aspect in her suffering. She conceded that since 1984 she has been "fairly apprehensive" about court proceedings. Dr Jackson gave evidence that a psychologist was able to decrease the level of Mrs Brown's anxiety and pain which might indicate some element of functional overlay, but he clearly did not wish to give a firm opinion on the matter. I find that there is a possibility that once the court proceedings are over, Mrs Brown will not suffer quite as much but the evidence certainly does not satisfy me that there will be a substantial diminution.
PAST MEDICAL AND PHARMACEUTICAL EXPENSES
It was agreed by the parties before me that the Motor Accidents Insurance Board has spent $15,098.05 on such expenses for the plaintiff. Of that sum $6140 has been paid to Calvary Hospital and St. Johns Hospital, in which institutions the epidural injections and nerve block procedures have been performed. Dr Jackson, who is a pain physician and who has been the principal treating medical practitioner for the plaintiff's pain and suffering, has been paid $5828.38. It was agreed that none of the expenditure of the Board should be included in the damages.
PAST TRAVELLING EXPENSES
The plaintiff has claimed for the cost of travel in a private motor vehicle from Campbell Town to Hobart for treatment as a result of her injuries. The evidence satisfies me that there were at least 65 of such trips and I will allow their cost at the rate claimed being $35.75 per trip, a sum of $2323.75. In addition, I will allow by agreement $700 for the value of the services of the plaintiff's husband in accompanying his wife to Hobart on occasions.
FUTURE COST OF MEDICATION, MEDICAL AND HOSPITAL TREATMENT
The plaintiff's evidence established that her average expenditure on drugs which she reasonably takes as a result of her injuries, is about $5 per week. The evidence also established that in the 7 or 8 years prior to trial, the cost of her hospitalization, calculated at the rates current at the trial, for epidurals and blocks, averaged about $20 per week. The evidence further established that on average she attends a consultation with Dr Jackson for pain relief about six times a year at a current rate of $38 per consultation and on each occasion she incurs travelling expenses to Hobart. The average weekly cost of those consultations and travelling expenses is about $12.
On the above basis medication, hospitalization and medical treatment is costing about $37 per week on average. Mrs Brown has a life expectancy of about 42 years. Discounting a little for contingencies such as a more settled routine of treatment and a lessening of her suffering in the future, I assess $38,000 for this item.
LOSS OF EARNING CAPACITY
Mrs Brown gave evidence that when her youngest child commenced school, which was probably in 1986, she would have sought work in a Campbell Town hotel, cafe or grocer's shop or perhaps work as a cleaner. She gave evidence that such jobs are readily available in Campbell Town and that their availability is ascertained by word of mouth.
The evidence satisfies me that she will probably not be able to enter the work–force in the future. There is, of course, a chance that her pain and suffering will diminish, but it is only a chance. In her present condition it is not reasonable to expect that a prospective employer would engage her with the prospect of her being disabled by pain within 6 or 12 months nor is it reasonable that she should be expected to seek employment, the activity of which would be likely to hasten the return of her pain and suffering and increase their severity.
The availability of such work in Campbell Town was the only substantial aspect of the evidence of Mrs Brown about which I was left with a doubt. She gave evidence that in 1986 a laundry job became available at the local hospital which she would have taken. But in cross–examination she agreed that there were a lot of applicants for the job and there was no reason for her to believe that she would have obtained it. On this evidence it seems unlikely that she would have done so. She also gave evidence that work such as waitressing in cafes becomes available every 2 or 3 months. She agreed that there is a lot of unemployment among the young at Campbell Town and asserted that more married women work than do young people. This evidence conflicted with that of her own witness, Mr Rhee, who is the council clerk at Oatlands and who was called to give evidence about the employment situation in Campbell Town as well as Oatlands. In Oatlands since 1986 employment has been very static, that is to say there has been little movement and little opportunity for employment among the unemployed. Very few waitressing type jobs become available because the businesses are mainly family concerns. In Campbell Town there has been a reduction in the employment level at the local hospital and Mr Rhee's evidence was that he would expect the employment position at cafes to be the same as in Oatlands. He gave evidence that turnover of jobs is extremely low because there is a shortage of jobs and young persons who obtain them intend to keep them. Based on his knowledge of Oatlands, married women in their 30's or 40's do not obtain such positions unless they are members of the family of the proprietors, younger females aged between 18 and 25 being preferred. Based on his experience of entering such places in Campbell Town he expressed his view that his evidence was accurate.
In cross–examination Mrs Brown agreed that she would have wanted to be home from work by 3 or 4 pm each day, which is the time when her children would get home from school. Clearly, she would not have wanted to work in weekends while the children were young and at home and I am doubtful that she would have wanted to work much in weekends after they left school. It is likely that she would have wanted to be home with her husband. She was not asked whether she would have expected to work during the 3 months of school holidays in each year. Clearly she would only have wanted part–time work.
Mr Rhee's evidence raised considerable doubts about the chances of obtaining employment in Campbell Town for a married woman. I take into account that Mrs Brown's working experience occupied only about 3 years to the age of 19, and that might have put her at a disadvantage in a competitive market for employment.
The damages will include a moderate sum for loss of earning capacity. I find that she is likely to have obtained some part–time work, perhaps from time to time and not necessarily permanently. I am not persuaded that such work is as readily available in Campbell Town as she asserted. The evidence established that, at the time of the trial, a part–time adult waitress in an unlicensed restaurant or take–away–food establishment was paid about $8 an hour and a casual waitress about $10 an hour, for work between Monday and Friday. A take–away–service attendant was paid about an extra dollar an hour. The amount to be awarded cannot be calculated with any precision. $75,000 will be included in the damages for the plaintiff's lost earning capacity as a result of the accident.
GENERAL DAMAGES
The plaintiff has experienced considerable pain and suffering and will continue to do so in the future. There have been and will be significant periods of little pain and discomfort but eventually, from time to time, her suffering will resume until it becomes unbearable and she is forced to undergo an epidural injection or nerve or facet block. Her enjoyment of life has been significantly lessened. For pain, suffering and loss of the amenities of life I assess $30,000 damages.
SUMMARY
Accordingly the damages are assessed as follows:
Past travelling expenses $ 3,023.75
Future cost of medication, medical
and hospital treatment $38,000.00
Loss of earning capacity $75,000.00
General damages $30,000.00
$146,023.75
There will be judgment for the plaintiff against the defendant for $146,023.75.
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