Cooper v Sandor
[2007] WADC 218
•18 DECEMBER 2007
COOPER -v- SANDOR [2007] WADC 218
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 218 | |
| Case No: | CIV:1368/2006 | 12 - 15 NOVEMBER 2007 | |
| Coram: | O'BRIEN DCJ | 17/12/07 | |
| PERTH | |||
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Damages awarded | ||
| PDF Version |
| Parties: | PETA LOUISE COOPER MARKUS SANDOR |
Catchwords: | Assessment of damages for personal injury Causation Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 |
Case References: | Chapman v Hearse (1961) 106 CLR 112 De Blank v Stemberger [2000] WASCA 358 Hendrie v Ruski [2000] WASCA 249 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MARKUS SANDOR
Defendant
Catchwords:
Assessment of damages for personal injury - Causation - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded
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Representation:
Counsel:
Plaintiff : Mr D R Clyne
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Simon Walters
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Chapman v Hearse (1961) 106 CLR 112
De Blank v Stemberger [2000] WASCA 358
Hendrie v Ruski [2000] WASCA 249
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
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O'BRIEN DCJ:
Introduction
1 On 15 December 2004 the plaintiff, Peta Louise Cooper, was driving her car in Kingsley. Whilst stationary on Wanneroo Road, a car driven by the defendant collided with the rear of Ms Cooper's car ("the accident").
2 The defendant admits liability in negligence for the accident.
3 Ms Cooper claims she suffered soft tissue strain injury to the cervical and thoraco-lumbar spine and a strain injury to the left shoulder. She claims these injuries caused her pain and suffering and a psychological disorder.
4 In essence, the case involves a determination as to whether the injury diagnosed in the MRI on 19 February 2007 was caused by the accident. The MRI diagnosis was "moderate subacromial spurring, bursitis and shallow bursal surface partial thickness tearing of a tendinopathic supraspinatus tendon". I shall refer to this as "the left shoulder injury".
5 Ms Cooper claims damages for pain and suffering and past and future economic loss.
6 The defendant pleads a general denial of Ms Cooper's claim. The defendant pleads that the left shoulder injury occurred since the accident and was not a result of the accident but occurred sometime after the accident. Further, the defendant pleads that Ms Cooper is not unfit for work and that she could have worked as a shop assistant at all material times.
7 The defendant abandoned a defence that if the plaintiff does suffer from her pleaded injuries or disabilities, then these were not caused by the accident but were caused by her employment in 1995.
8 The defendant does not dispute that Ms Cooper suffered some soft tissue injuries in the accident and does not dispute psychological consequences. However, the defendant disputes the claimed extent of the psychological disorders given the defence that the left shoulder injury was not caused by the accident.
The accident: Ms Cooper's evidence
9 Ms Cooper was born on 21 February 1954 and is now 53 years old.
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10 On 15 December 2004, Ms Cooper was seated in her stationary car when a car driven by the defendant ran into the back of her. Ms Cooper was driving a Hyundai Excel and this was written off as a result of the accident which caused damage to the back and front of the car and also "popped the roof".
11 Ms Cooper inferred that her left arm hit the rear vision mirror because it was crooked and also hit the wipers because they were on – she does not have a specific memory of this. None of the medical witnesses referred to this claimed occurrence and none was asked any questions about it in relation to the cause of the left shoulder injury, or at all.
12 Ms Cooper's hypothesis was not challenged. In my view, her inference as to her left arm hitting the rear vision mirror and wipers, is a reasonable one.
13 Ms Cooper said she sat in the car for a while in shock.
14 Her husband then collected her, took her to a police station where she made a statement and then to see a general practitioner, Dr Rao. Thereafter, Ms Cooper saw a number of health professionals for injuries she claims she suffered in the accident.
15 In the two weeks after the accident, Ms Cooper said she constantly had bad headaches, her neck hurt all the time and she had pain in her left shoulder and all down her left side.
16 She was unable to sleep because of the pain and Panadol did not relieve her pain.
17 Physiotherapy recommended by Dr Rao did not help.
18 After a couple of months Ms Cooper returned to her previous general practitioner, Dr Judelman, who prescribed Mersyndol Forte and Prothiadin.
19 Ms Cooper testified that until February 2006, her neck, spine and shoulder constantly ached.
20 Ms Cooper said she was referred to Dr Zandi because of excruciating pain in her shoulder which was worse than before. The shoulder pain started to worsen towards the end of 2005 and "got really bad" in mid 2006. She testified that the movement in her left arm was restricted and she avoided those activities which aggravated the pain such as heavy lifting.
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21 Under cross-examination, Ms Cooper said that her shoulder pain progressively worsened until August 2006 when she saw Dr Zandi. Her back and neck were also causing her trouble but this was not as bad as the shoulder pain. She said that her shoulder movements were not very restricted in the five months or so after the accident but her shoulder used to ache. Significant restriction set in September or October 2005. She would get sharp pains when getting dressed.
22 In her Notice of Intention to Claim dated 6 April 2005, Ms Cooper did not mention shoulder pain. She said this was because she thought the pain was coming from her neck across to her shoulder.
23 Presently Ms Cooper takes eight Mersyndol Forte every day, 150 mgs of Prothiadin and Norspan patches (20 mcg) every week.
Ms Cooper's work history
24 Ms Cooper left school in the first year of high school when she was 15 years old. Thereafter she said that she worked in offices doing clerical work for 15 or 20 years.
25 She was married in 1980 (at 26 years old) and had two children now aged 21 and 20 years.
26 She stopped work when the children were born and remained out of the workforce until from 1985 to 1993. When the children started school, she worked part-time in a wholesale garden centre. Her duties included propagating plants, potting, "picking [up] orders" and weeding. She worked 25 hours a week.
27 Ms Cooper testified that she developed bilateral epicondylitis and was off work from mid 1995 until 2000. All symptoms associated with that condition resolved in 1999.
28 She then returned to work part-time in a garden centre attached to a hardware store. She worked 25 hours a week until 2003 when there was a downturn in customers. Her hours reduced to 15 hours a week. Her duties included placing and receiving orders for plants, displaying and pricing plants and attending to customers. She was required to carry fairly small plants almost every day. Her employer regarded her as a good employee.
29 In November 2003, after approaches from customers, Ms Cooper started a garden maintenance business whilst still working for the garden
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- centre. Initially she had one customer a week and by the time of the accident, she had five customers, all secured by word of mouth.
30 In November 2004, Ms Cooper left the garden centre to concentrate on her own business.
31 Her intention was to build up the business to about 20 or 25 customers. Her aim was to earn around $450 to $500 per week. If she was unable to achieve that, she said she would probably have returned to work in a retail garden centre.
The effects of the accident: Ms Cooper's evidence
32 After the accident, Ms Cooper serviced customers in her business, working about four hours a week. She would drive distances of up to 72 kilometres to work. She stopped work completely in May 2005 because of the pain and has not returned to any employment since then. The work involved weeding and trimming but was not heavy gardening. When she stopped work, she said the main problem was her neck and back. Her shoulder was a problem but not as bad as her neck and back.
33 Ms Cooper said that she is unable to vacuum, sweep, hang out the washing or cook.
34 She used to play team netball and family cricket, basketball, table tennis and darts. She is now unable to do any of those sports.
35 She no longer suffers from headaches since the last six months or so.
36 Her neck still causes a lot of pain and her back and shoulder ache.
37 She considers that she is unable to return to any form of work.
38 The effect of Ms Cooper's evidence is that she suffered immediate pain in her back and neck and shoulder after the accident. She continued to work until May 2005 when she gave up due to the pain. Until around mid 2006, the main focus of her pain was in her neck and back. Thereafter, her left shoulder pain became worse to the point where it was excruciating.
39 By October 2005 Ms Cooper had been referred to a psychologist for treatment for depression and inability to cope because of the pain.
Legal Principles
40 The following is a summary of the applicable legal principles.
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41 The plaintiff bears the onus of proving on the balance of probabilities a connection between the injury and the defendant’s negligent act.
42 It is only necessary for the plaintiff to prove that the defendant’s negligence was a cause of the injury – the plaintiff does not have to prove it was the only cause: Chapman v Hearse (1961) 106 CLR 112 at 120.
43 On the issue of causation, the plaintiff must prove that an identified negligent act (or omission) of the defendant was so connected with the plaintiff’s injury or loss that as a matter of ordinary common sense and experience, it should be regarded as the cause of it: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 662.
44 Where there are competing causes of the injury, Dixon CJ said in Watts v Rake(1960) 108 CLR 158 at 160:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
- See also Purkess v Crittenden(1965) 114 CLR 164 per Barwick CJ, Kitto and Taylor JJ, at 168.
45 The plaintiff must establish the extent to which her earning capacity has in fact reduced by reason of the injury and the extent to which the earning capacity is or may be productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3.
THE MEDICAL EVIDENCE
Treating general practitioners
46 Dr Rao first saw Ms Cooper on 15 December 2004 when she complained of headache, shoulder, hip, leg and lower back pain on her left side. Ms Cooper continued to see Dr Rao until around March 2005. In the meantime, she underwent physiotherapy which she said did not help her symptoms.
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47 On 2 March 2005, Ms Cooper returned to her former general practitioner, Dr Judelman. He noted that Ms Cooper complained of a painful neck, lower back pain, pain between the shoulder blades, tingling of her arms, fingers, feet and lower legs. She was tender in her lower thoracic area. Dr Judelman diagnosed soft tissue injury.
48 Dr Judelman counselled against physiotherapy which was aggravating Ms Cooper's pain and recommended an exercise based program.
49 He referred her to Guardian Exercise Rehabilitation and she attended that program regularly from early April until mid September 2005.
50 When he saw her on 8 June 2005, Dr Judelman reported that Ms Cooper was quite tearful due to her lack of progress and he prescribed Prothiadin as a pain management medication.
51 Dr Judelman has remained Ms Cooper's general practitioner from March 2005 until the present time.
52 Dr Judelman referred Ms Cooper to Dr Edelman, a rheumatologist.
The specialists
Dr Edelman
53 Dr Edelman saw Ms Cooper in May 2005.
54 On examination, Dr Edelman noted that Ms Cooper was "tight across her trapezius muscles and down her thoracic spine. However, she had quite good neck and shoulder movements".
55 He was of the view that all of the symptoms related to soft tissue injury.
56 In August 2005 Dr Edelman reported to Dr Judelman that treatment was not making much difference and suggested a multidisciplinary approach to pain management. PB12.
57 He reviewed Ms Cooper again at the request of her solicitors in October 2007. Ms Cooper told Dr Edelman that she deteriorated badly in August 2006, was in extreme body pain and felt as though she had been run over by a steamroller; she had pain on breathing and every bone in her body ached. Notwithstanding that, she reported that she had improved with medication.
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58 Ms Cooper told Dr Edelman that her shoulder worsened at the end of 2005 and she had marked pain around her left shoulder from mid-arm right up into her neck. The pain was constant even when she was not using her arm. Movement of the shoulder produced more pain.
59 On examination Dr Edelman noted a global loss of shoulder movement on the left with resistance to movement caused by pain.
60 He assessed her shoulder disability at 15 per cent; her cervical spine and low back at 10 per cent each.
61 At that stage he did not report on the issue of causation of the left shoulder injury.
62 At the request of Ms Cooper's solicitors, Dr Edelman reviewed her again in October 2007. Dr Edelman reviewed Ms Cooper having read the MRI.
63 His report dated 17 October 2007 records that Ms Cooper told him that she had marked pain around her left shoulder from mid-arm right up into her neck which is constantly there even if she is not using it. Shoulder movement produces more pain. She had constant pain in the lower cervical area radiating into the thoracic area and around the shoulder blades; little low back pain; a stiff neck on movement; aches in the morning and often had waves of tingling down her legs.
64 Examination revealed global loss of shoulder movements on the left. Movements were resisted by pain. There was decreased rotation of the neck to the left and tenderness over her trapezius and cervical musculature and in her low back. He assessed her shoulder disability at 15 per cent; her cervical spine and low back at 10 per cent each.
Dr Gee
65 Dr Edelman referred Ms Cooper to Dr Gee, a consultant in pain management. Dr Gee assessed Ms Cooper on 29 September 2005 when she complained of neck pain, discomfort between her shoulder blades and upper lumbar pain with headaches radiating from the occiput to the forehead. She was taking Mersyndol Forte and Prothiadin. She was experiencing headaches and her symptoms were "stirred up" by a range of day to day activities.
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66 On clinical examination, Dr Gee found:
"clearly increased tone through her cervical muscles and this extended down through the thoracic area. … tenderness over her greater occipital nerves on both sides. Her cervical range demonstrated mild reduction in her range of movements. Her shoulder range appeared normal.
Her dorsal examination revealed some central tenderness about T5-6 with tenderness over her paraspinal muscles.
[As to her upper limbs] there was considerable tenderness over flexor and extensor."
67 Dr Gee recommended a physical rehabilitation program with Michael Ponchard, an exercise physiologist.
68 He also recommended psychological counselling with Christopher Semmens.
69 When Dr Gee saw Ms Cooper again in March 2006, there was some improvement in her reported pain. She had tight cervical muscles but her cervical and lumbar ranges of movement appeared normal. In his report dated 15 March 2006, he made no mention of restriction or otherwise of shoulder movement.
Dr Zandi
70 Dr Judelman referred Ms Cooper to Dr Zandi, an orthopaedic surgeon who specialises in shoulder conditions.
71 Dr Zandi saw Ms Cooper on 6 February 2007 when she presented with quite severe aches and pains throughout her body. Her main problems were her neck, trapezium, shoulder and arm pain. She reported associated pins and needles and numbness both in her left arm and occasionally in her left leg.
72 She further reported that the pain was quite overwhelming and at that time Ms Cooper was using morphine patches, Mersyndol Forte (eight a day) and Prothiadin at night.
73 On clinical examination, Ms Cooper reported pain and tenderness along her cervical spine, into the top of the thoracic spine, over the plexus and tenderness of the shoulder right along the clavicle, the spine of the
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- scapula and down the arm. Forward passive and active movements of the shoulder were painful.
74 Dr Zandi recommended an MRI.
75 The MRI was performed on 19 February 2007 and the diagnosis of the left shoulder injury followed that.
76 Dr Zandi saw Ms Cooper again on 23 February 2007. He counselled against surgery but recommended trying cortisone injection followed by physiotherapy.
77 Although Ms Cooper did report some alleviation of her symptoms from time to time, for example, the alleviation of her headaches, she still suffered a good deal of pain, interference with her day to day activities because of pain and a progressive worsening of left shoulder pain which peaked in or around August 2006.
78 Ms Cooper's case is that the left shoulder injury was caused in the accident. The defendant submits that the left shoulder injury was not caused in the accident and was the result of degenerative changes consistent with Ms Cooper's age.
Medico-legal assessments
79 Dr Andrew Harper, an occupational physician, reviewed Ms Cooper at the request of her solicitors on 16 May 2006. Ms Cooper complained of constant pain specifically in the proximal thoracic spine, at approximately T9 and in the lower lumbar region. She also complained of pain in her wrists and aching in her arms which could last for weeks.
80 She also reported mood changes but said that she was emotionally "not too bad". She expressed fears about having another accident. She did not report that she was depressed.
81 Dr Harper reported the results of his physical examination. Relevantly insofar as the left shoulder injury is concerned, he reported that shoulder movement was near normal. His view was that Ms Cooper sustained a strain injury to the cervical and thoracolumbar spine complicated by an adjustment disorder which caused impaired adaptation to her disability. He considered the disability in her cervicothoracic spine was mild to moderate in severity.
82 Dr Harper saw Ms Cooper again in September 2007.
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83 Ms Cooper reported that her neck and back pain had definitely improved, but she still experienced pain in the left trapezius muscle, thoracic vertebrae at the base of the neck and in the mid-thoracic region as well as the lower back and the arm pain, numbness and tingling had also improved.
84 She reported that her left shoulder pain had responded favourably to occupational therapy and she then experienced a dull pain over the left shoulder radiating to the deltoid muscle which also spread over the left upper back and anteriorly to the left shoulder and into the supraclavicular triangle. She experienced shoulder pain daily with episodes lasting between five minutes and two hours. Her shoulder was stiff.
85 She reported worsening anxiety when in a car; depressed on occasions; a feeling of a lack of control in her life; fearful of surveillance by the insurer.
Professor Mastaglia
86 Professor Mastaglia, a consultant neurologist, reviewed Ms Cooper on 17 August 2006 and 9 August 2007 at the request of Ms Cooper's solicitors.
87 Professor Mastaglia was of the view that Ms Cooper "clearly suffered a significant musculo-ligamentous (soft tissue) injury to the cervical and thoracolumbar areas of the spine in the accident and still has persisting symptoms in these areas". Further, he considered that she suffered an injury to the left shoulder with persisting pain and limitation of movement at the shoulder. He made this diagnosis based on the symptoms, but the range of movement to the shoulder was within normal limits but with pain. He considered that there was no mechanical impingement to moving the shoulder.
88 In August 2007, Professor Mastaglia diagnosed increased severity in the left shoulder injury whilst the neck and back injuries were essentially unchanged. He noted that the sensory symptoms in the left hand had largely resolved.
89 He assessed the level of disability at neck 10 per cent; left shoulder and arm 20 per cent; back 7.5 per cent.
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The left shoulder injury: cause
Dr Zandi
90 Dr Zandi was the only orthopaedic specialist who testified as to the causation of the left shoulder injury. Most of his work involves shoulder conditions.
91 In his report dated 22 April 2007, Dr Zandi expressed his view as follows:
"It … is a relatively common scenario that one does encounter in motor vehicle accidents where there may be partial tears or some degree of tendonopathy within the shoulder, whether this evolves over time following an accident is probably the most logical explanation. The blunt trauma to the shoulder, followed by some deceleration of a rapidly moving mobile part of the body can result in some injury to the shoulder. The subsequent tear and discomfort in the area will result in some disuse of the shoulder. Then weakness within the musculature around the shoulder does set in, resulting in some poor muscle tone and functional impingement of the rotor cuff."
92 Dr Zandi explained that the term "blunt trauma to the shoulder" referred to the acceleration/deceleration process involved in a rear end collision.
93 He said that there was nothing in the materials or history provided to him to indicate a left shoulder injury prior to the accident.
94 Dr Zandi postulated that where there is acceleration and deceleration of a body part, such as an arm, that can result in pain with secondary loss of function. If an MRI is performed at the time of the trauma, he often sees bone bruising or tendon bruising and subsequent to that resulting dysfunction of the supraspinatus resulting in its inability to prevent the humoral head from subluxating superiorly and impinging against the acromion. This would in turn result in a circular event where there is tendonopathy, poor function, resulting in superior migration, impingement, pain, leading to further secondary inhibition of the muscle function and further impingement and tendonopathy (T 127). Tendonopathy can get worse.
95 Dr Zandi agreed under cross-examination that the left shoulder injury can be a product of the aging process without any history of trauma. Further, Dr Zandi testified that if Ms Cooper had full normal pain-free
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- movement of the shoulder for 18 months to two years after the accident he would not consider the traumatic injury to be the cause of the right shoulder injury.
96 Dr Zandi said he did not have any specific history from Ms Cooper as to what actually occurred in the collision. However, Ms Cooper's testimony as to what happened to her in the accident and the inference she drew were that her left arm made contact with the mirror and the wipers fits with the hypothesis formulated by Dr Zandi.
Dr Bowles
97 Dr Bowles, an occupational physician (without orthopaedic qualifications), examined Ms Cooper at the request of the insurer.
98 When he first saw Ms Cooper in August 2006, Dr Bowles formed this view:
"… Ms Cooper at best, may have some very mild symptomology from the motor vehicle accident in terms of mild symptoms, but I believe that most, if not all of her complaints, can be explained by a combination of normal bodily aches and musculoskeletal problems that one encounters, particularly as one gets a little older, modified by excessive focusing and introspection, (as a consequence of the system) and also propagated and exaggerated by being involved in a personal injury claims systems (sic)."
99 At that stage he was not in possession of the MRI.
100 He referred to inconsistencies in the examination. These included superficial and non-anatomical tenderness; a positive response to simulated rotation; and discrepancies between straight leg raising supine and seated. Further, he would expect there to be improvement after an exercise program rather than deterioration. He recommended removal from the personal injuries claim environment.
101 Dr Bowles saw Ms Cooper again in January 2007 but again did not have the benefit of the MRI. However, he noted the results of an ultrasound which revealed a moderately sized fluid collection in the subacromial space. He considered that these findings are not an uncommon description of a shoulder joint of a 52-year-old woman and could be considered normal and not related to the accident.
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102 Dr Bowles reviewed Ms Cooper for the last time on 11 September 2007. Ms Cooper reported that her headaches had resolved; her neck was not as "bad" as it was before; and that her low back was "pretty good", albeit with occasional pain on bending.
103 On examination Dr Bowles noted significant left shoulder restriction but he was unable to conduct impingement testing, as there was tenderness around the subacromial region.
104 Dr Bowles reported that soft tissue injury was caused in the accident but said that he would expect a complete resolution of these injuries by September 2007. However, he said that pain states could persist well after injury has resolved. The reason for this is multi-factorial and generally independent of the extent of injury or trauma caused. Elaborating on this in evidence, Dr Bowles testified that no-one can measure pain and that doctors have to accept what the patient reports about pain. He said that simply because there is pain two or three days after an accident does not necessarily mean it is related to the accident. He referred to Dr Edwards-Smith's opinion that psychological issues might contribute to pain states.
105 Independent of the left shoulder injury, he could see no reason why Ms Cooper's work capacity should be impaired.
106 Dr Bowles was "firmly of the view" that the accident did not cause the left shoulder injury.
107 The only relationship between the left shoulder injury and the accident was that the shoulder complaints came on after the accident.
108 He said that tendonopathy is an age-related degenerative process and (by way of example) Ms Cooper had suffered from a similar problem with her elbows (bilateral epicondylitis in 1995).
109 Dr Bowles placed considerable emphasis on the fact that Ms Cooper's "shoulder complaints" to Dr Rao were about the area of the left shoulder blade but not the "glenohumeral joint". Further, previous examiners had found a full range of shoulder movements. His view was that the MRI findings were almost normal for a 52-year-old person. In response to my question, Dr Bowles testified that if the MRI findings had been present in 2004, he would expect that there would be pain in the shoulder; waking at night with pain; not necessarily restricted movement, but difficulty with hanging out the washing or overhead activity where impingement gives discomfort.
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- Dr Gee
110 Dr Gee was called by the plaintiff's solicitors primarily to testify about pain management.
111 However, under cross-examination Dr Gee was of the view that the left shoulder injury, the onset of which was after the initial accident suggested that it was the result of the natural aging process.
112 This was because on initial presentation, Ms Cooper did not complain about shoulder pain. In re-examination, Dr Gee testified that her left shoulder injury could be asymptomatic and become symptomatic with increasing or continuing use of the arm. As to trauma, Dr Gee, in effect, testified that if the left shoulder injury were a result of trauma then it would be an immediate process, not a delayed process. He said that there were usually not any exceptions to that situation in his experience.
Dr Edelman
113 The defendant called Dr Edelman. Although Ms Cooper's counsel told the defendant's counsel and the Court that he was going to call Dr Edelman, without notice, he closed the plaintiff's case without doing so.
114 Dr Edelman did not express any view about causation of the left shoulder injury in any of his reports.
115 When the defendant's counsel asked Dr Edelman about the issue of causation, Ms Cooper's counsel objected to the question on the ground that he had no notice of the answer. However, Dr Edelman testified that he was asked about the causation issue by Ms Cooper's solicitors on the morning he was called to give evidence for the plaintiff and was then told the plaintiff would not call him. I did not finally rule on the objection. The defendant's counsel did not pursue a line of questions relating to the pathology of the left shoulder injury; the mechanism of causing such an injury by trauma; the likely effects immediately following the trauma, including pain; the degree of restriction and so on. Nor were similar questions put relating to the degeneration process in the shoulder joint.
116 The defendant's counsel asks me to draw the inference that the answer to a question about the causation of the left shoulder injury would not be of benefit to Ms Cooper's case. That may be a reasonable inference to draw in the circumstances. However, even if I went so far as to draw an inference that if asked, Dr Edelman would testify that the accident did not cause the left shoulder injury, in the absence of evidence as to the
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- factual foundation of the opinion and the testing of the opinion especially in the light of Dr Zandi's opinion, it is of little relevance.
Findings: cause of the left shoulder injury
117 Expert medical witnesses gave conflicting opinions about the issue of causation of the left shoulder injury. The only specific evidence as to the likely symptoms if the left shoulder injury had been caused in the accident came from Dr Bowles in response to my question to him. The symptoms he described were experienced by Ms Cooper. She immediately suffered pain in her shoulder region but the main focus of the pain was in her neck and back. As time went by the use of her arm became more restricted.
118 Dr Bowles' opinion that the left shoulder injury is degenerative is primarily based on the lack of a specific complaint about joint pain immediately after the accident and full shoulder movement noted by doctors in previous examinations.
119 However, there is no evidence that Ms Cooper was pain-free in the shoulder area since the accident. In the early stages, the main source of pain and discomfort was in her neck and back. She did, however, complain of shoulder pain but perhaps not in specific enough terms to alert doctors to the possibility of the left shoulder injury.
120 Dr Gee simply opined without sufficient explanation of the basis of his opinion that the left shoulder injury was degenerative.
121 As I have outlined above, I do not place any weight on Dr Edelman's evidence on the issue of causation.
122 Dr Zandi was the only witness who gave evidence relating to the mechanism of the left shoulder injury occurring in the accident. Dr Zandi's explanation fits with Ms Cooper's unchallenged evidence about her left arm hitting the mirror and wipers.
123 Dr Zandi was not only Ms Cooper's treating specialist, but also his particular speciality as an orthopaedic surgeon is the shoulder.
124 I am of the view that the plaintiff has established that it is more probable than not that the left shoulder injury was caused in the accident by the process described by Dr Zandi and that over time, it manifested itself in increasing pain and restricted movement.
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Mental health issues
125 Dr Gee referred Ms Cooper to Mr Christopher Semmens, a clinical psychologist. Mr Semmens reported that Ms Cooper was referred to him for treatment as part of a multi-disciplinary approach to her disablement.
126 Mr Semmens saw Ms Cooper from 10 October 2005 until 2 October 2007. In total there were 30 consultations. It would seem that some of these consultations were over the telephone as Ms Cooper developed a fear of driving.
127 She presented as anxious, tense and depressed. Frequently in the earlier sessions she would be tearful. She had intense feelings of personal inadequacy which she based on her inability to be independent and to care for her family as she had prior to the accident.
128 Mr Semmens employed cognitive behaviour therapy. When Mr Semmens reported on 4 April 2007 he said that Ms Cooper was much better than previously but found herself lapsing back to the old patterns of negative self-assessment, self condemnation, guilt and shame, hopelessness and helplessness. However, she presented with much better insight, understanding and awareness of her propensity to do this and of the mechanisms that might lead to that.
129 In his last report dated 9 November 2007, Mr Semmens stated that Ms Cooper was functioning, from an emotional point of view, better than she was when he first starting seeing her but she appeared not to be able to implement the strategies under consideration as well as she had earlier in 2007.
130 In essence, Mr Semmens testified about a direct relationship between the pain suffered by Ms Cooper and her psychological condition. He was of the view that if Ms Cooper is able to return to work because of "sufficient physical and biomedical recovery" then he was of the view that she would not suffer any residual psychological or emotional disability. However, if she did remain physically and biomedically disabled, then it was quite possible that she would continue to endure a degree of residual psychological and emotional distress. He assessed that latter disability in the vicinity of 5 per cent.
Dr Gemma Edwards-Smith
131 Dr Edwards-Smith is a consultant psychiatrist who reviewed Ms Cooper at the request of the defendant's solicitors on 17 March 2006.
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132 By then Ms Cooper reported worsening symptoms of pain affecting her neck and shoulders and complained of the pain radiating down her spine.
133 However, she did report an improvement in her emotional symptoms in recent months and had found the sessions with Mr Semmens very helpful.
134 Dr Edwards-Smith was of the view that post-traumatic stress disorder was not applicable as the specific causative factors outlined in DSM-IV were not present. Particularly, a motor vehicle accident was not one of the specific traumas mentioned in the DSM.
135 The differential diagnosis of her psychological symptoms was adjustment disorder, major depressive episode or an anxiety disorder such as specific phobia or generalised anxiety disorder. Dr Edwards-Smith did not consider that Ms Cooper satisfied the diagnostic criteria of major depression.
136 She diagnosed Ms Cooper with an adjustment disorder with mixed anxiety and depressed mood pursuant to DSM-IV based upon the development of the symptoms in association with a stressor, specifically the pain, which she understood to have arisen from the accident.
137 As to whether her then psychiatric condition was caused by the accident, Dr Edwards-Smith reported that:
"Her coping mechanisms have been overwhelmed and she has developed feelings of low self-esteem. … I am of the opinion, therefore that the psychiatric condition is attributable to the effects of the motor vehicle accident."
138 She did not consider that Ms Cooper was exaggerating or feigning her symptoms. She anticipated that Ms Cooper would recover from her psychiatric condition and that, from a psychiatric point of view she was fit for her pre-accident employment and that her future work capacity was not affected by it.
139 When Dr Edwards-Smith reviewed Ms Cooper again on 23 January 2007, the MRI had not been conducted. Accordingly, Dr Edwards-Smith's opinion was based on the previous diagnosis of soft tissue injury.
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140 She was of the view that the psychiatric condition is attributable to the effects of the accident to the extent that the physical injuries were deemed to have been caused by the accident.
141 She was asked to report on factors other than the effects of the accident which might contribute to her psychiatric condition. Dr Edwards-Smith conceded the difficulty in giving an opinion on this issue and was of the view that the issue of secondary or financial gain is a significant factor contributing to Ms Cooper's then presentation. She based this on Ms Cooper's desire that she wanted to go to trial. She said it was certainly possible that Ms Cooper was exaggerating her psychological symptoms and seemed to place some reliance on Dr Bowles' views along those lines.
142 During the course of her examination and cross-examination, neither counsel referred Dr Edwards-Smith to the results of the MRI which revealed the left shoulder injury and I must therefore conclude that all of Dr Edwards-Smith's opinions centre around the diagnosis of a soft tissue injury rather than the left shoulder injury. Accordingly, I place little, if any, weight on Dr Edwards-Smith's views about possible exaggeration of psychological/psychiatric symptoms. This is particularly as Dr Edwards-Smith was relying on opinions expressed by Dr Bowles as to the issue of exaggeration. However, according to Dr Edwards-Smith's list of materials available to her when she prepared her report dated 9 February 2007 she only had access to Dr Bowles' report dated 18 August 2006 which pre-dated the diagnosis of the left shoulder injury.
Dr Claudio Nick De Felice
143 Dr De Felice is a consultant psychiatrist who assessed Ms Cooper on referral by her lawyers on 22 November 2006 and 2 August 2007.
144 His view was that Ms Cooper experienced a major depressive disorder. He made his diagnosis pursuant to DSM-IV TR. He did not consider it particularly relevant that Dr Edwards-Smith diagnosed Ms Cooper as having an adjustment disorder. However, he said:
"Whatever the diagnostic label one might apply, I think the point is that Ms Cooper has developed dysphoric symptoms in response to her experience of ongoing pain and limitations."
145 His view was that Ms Cooper's major depression was precipitated by the pain and limitations she experienced following the accident.
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- Dr Moyra Tsouvallas
146 Dr Tsouvallas is a clinical psychologist. Ms Cooper contacted Dr Tsouvallas when she found it difficult to travel to see Mr Semmens. Dr Tsouvallas saw Ms Cooper six times between 14 May 2007 and 7 July 2007 and five times since then.
147 Her clinical testing revealed significant depression which affects her eating and sleeping; a high degree of anxiety; psychological vulnerability such as loss of confidence and a sense of powerlessness; considerable attention and concentration problems.
148 Dr Tsouvallas noted an improvement in Ms Cooper's symptoms over the time she has treated her although not a major shift in her anxiety and depression. The improvement was qualitative. That is, Ms Cooper appeared more adjusted to her condition, she was not as distressed and was not suicidal.
149 Dr Tsouvallas diagnosed Ms Cooper as suffering from severe post traumatic stress disorder. Dr de Felice considered that Ms Cooper's symptoms did not fulfil the diagnostic criteria for that diagnosis. In my view, it is not necessary to attach a diagnostic label to the symptoms exhibited by Ms Cooper. It is more important to focus on the symptoms, their cause and their impact on her capacity to work.
150 Dr Tsouvallas was of the opinion that Ms Cooper requires on-going counselling for depression, anxiety and adjustment to disability. She estimated that Ms Cooper will require another six sessions with her.
151 Dr Tsouvallas considered that if Ms Cooper were pain free, her anxiety and depression would be alleviated.
152 As at the date of trial Dr Tsouvallas considered that Ms Cooper was capable of working seven hours a week. This estimate took into account her physical pain and her psychological condition. There is no evidence that Dr Tsouvallas had the appropriate qualifications to express this opinion.
Findings: mental health
153 I have no doubt that Ms Cooper's reported psychological condition as outlined above arose principally because of the pain and disability associated with accident caused injuries.
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154 I reject the defendant's assertion that Ms Cooper exaggerated her pain and psychological symptoms. Various medical reports refer to her acknowledgement of improvement in bodily functions, pain and emotional state from time to time. In my view, Dr Edwards-Smith's opinion as to exaggeration is diluted by the fact that she was not in possession of the MRI results when she wrote her reports and was working from the diagnosis of physical injuries of soft tissue injury. Further, in my view, it does not follow that a person who expresses a desire to take full advantage of their legal rights is exaggerating for financial gain. The very reason a person goes to trial is to obtain financial gain. However, I accept the opinions that Ms Cooper's psychological condition may well improve once her litigation is finalised.
Effects of the accident: summary of findings
155 In summary I find that Ms Copper suffered soft tissue injury to the back, shoulder and neck and also the left shoulder injury in the accident.
156 These injuries have caused pain, suffering, and interference with day-to-day activities. The pain and disability has in turn resulted in depression, anxiety, lack of confidence as outlined by the mental health specialists.
Capacity for work
157 Ms Cooper did her best to continue with her fledgling gardening business after the accident. It is clear from the evidence of her treating doctors that her physical injuries did not resolve but became worse especially when the left shoulder injury manifested itself. It is difficult to especially identify the degree of pain directly associated with the accident caused injuries. The overlay of the psychological condition may well have had some impact on the resolution of pain.
158 It is reasonable in the circumstances that she did not attempt to progress her business given she was in pain. I find that she did her best in the circumstances.
159 I am satisfied that by May 2005 when Ms Cooper stopped work completely, she was in fact unable to work in her usual occupation as a gardener. I am also satisfied that she will be unable to resume work as a gardener or any occupation which involves lifting unless and until her left shoulder injury resolves or improves.
160 Dr Zandi did not recommend an operation to cure the left shoulder injury. He thought that surgery might increase the pain. In fact there was
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- a paucity of evidence as to what, if any, medical intervention might assist the resolution of the left shoulder injury.
161 There is a possibility that Ms Cooper will get better. Some of her symptoms have improved over time with chiropractic and occupational manipulative techniques (see Dr Zandi at T 129).
162 Given Ms Cooper's work history, she does have experience and skills which qualify her for work which does not involve heaving lifting. However, as against that, she is now 54 years old and has been involved in gardening related work for most of her recent working life. She can probably work in a garden centre provided she does not do any lifting or bending. However, there is no evidence as to what other employment is available to her. The defendant did not adduce any evidence in this regard.
163 Ms Cooper's psychological condition is related directly to the pain which I have determined was caused by the accident. The preponderance of opinion is that if the pain subsides, the psychological problems will also subside.
164 Several of the doctors expressed Ms Cooper's disability in terms of percentages and/or estimated how many hours she could work a week. Whist I must give some weight to these opinions, there was no uniformity. In the circumstances on the basis of all of the evidence, I find that unless her left shoulder injury resolves, Ms Cooper's capacity for work until the end of her working life at 65 years old is virtually non existent.
Damages
165 Past medical costs are agreed at $11,084.75.
Future medical costs
166 Dr Judelman's evidence that Ms Cooper requires on going medication was not challenged. He estimates the cost at $130 per week. The need for pain and other medication will probably decrease especially that required for mental health issues. I therefore consider that there should be a discount of 30 per cent to allow for this contingency.
167 The calculation for future medication is therefore:
$130 per week x 450 (6 per cent multiplier) $58,500
Less 30 per cent for contingencies $17,550
Total $40,950
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168 Despite the formal claim for expenses associated with shoulder surgery, there is no evidence that Ms Cooper will undergo shoulder surgery. Dr Zandi specifically counsels against it.
169 Ms Cooper will require on-going monitoring by her general practitioner. There is no evidence as to the frequency of these consultations but Dr Harper estimates the fees would be $500.
170 Dr Tsouvallas estimates that Ms Cooper will require another six counselling sessions. The only evidence about the cost of psychological services is the Claim Payment Summary Form tendered by the defendant (Exhibit 14). According to that, Ms Cooper consulted with Mr Semmens on 30 occasions at a total cost of $4,647. I would therefore calculate the cost per session at $155 ($4,647.30). The cost of 6 sessions is thus $930.
171 The evidence establishes that Ms Cooper will require on-going treatment from various health professionals. Based on Dr Harper's estimates, I would allow a global sum for these services at $2,000.
Summary of future medical expenses
Psychological counselling $930
General practitioner $500
Miscellaneous medical/rehabilitative treatment $2,000
Future medication $40,950
Total $44,380
Past economic loss
172 Ms Cooper earned a weekly average income of $72.29 gross and $72.29 net from the time she commenced her gardening business until she stopped work on 3 May 2005. Ms Cooper also claims a global amount of $20,000 claiming that she was "unable to grow her business" because of her injuries (SOC par 9(d)).
173 Her evidence is that she worked within her physical capabilities which were reduced because of pain. Thus she did not attempt to build up her business. Whether she would have built up her business to 25 hours per week and whether, if she did not, she would return to her previous occupation is difficult to determine with any certainty.
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174 However, Ms Cooper has had a steady work history over a number of years as outlined above. In her gardening business she was charging $15 per hour with an intention to increase that fee to $18 an hour. According to her tax returns, Ms Cooper's average gross income for the years 2002 to 2004 inclusive was $16,584. The income earned in the 2005 year is not helpful as her accident affected her ability to work and thus her income was much reduced.
175 I consider it probable that Ms Cooper would have earned around $16,500 a year, working part time in either her own gardening business or at a retail gardening centre.
176 Thus her past loss of income was as follows:
2005 year ($16,500 less $5,680 income earned) $10,820
2006 $16,500
2007 $16,500
01/07/2007 to date $16,500
Total gross income $60,320
Less 1/3 (estimated tax no schedules tendered) $20,107
Net total $40,213
Plus interest @ 6 per cent $2,413
$42,626
Superannuation
177 The claim for superannuation was abandoned at the end of the trial as Ms Cooper was self-employed at the time of the accident.
Future economic loss
178 I find that Ms Cooper has proved that the accident diminished her earning capacity and that this has caused financial loss.
179 There is some prospect that Ms Cooper's left shoulder injury will improve. If so, her other soft tissue injuries will also improve if not resolve. In my view, the resolution of this litigation will more probably than not have some beneficial impact on her psychological state. The preponderance of opinion form the mental health professionals is that Ms Cooper's psychological condition has little if any impact on her ability to work.
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180 Dr Judelman was unable to offer an opinion as to Ms Cooper's future work capacity but stated that she has problems with driving and concentration and difficulty in using both hands at once. Dr Edelman was of the view that Ms Cooper cannot return to work as a gardener given her present symptomology. Dr Gee's view was that Ms Cooper's future work capacity is "poor" and "restricted" and will depend on future treatment. Dr Harper does not anticipate that Ms Cooper will be able to return to work as a gardener and that her injuries may preclude her form returning to any form of gainful employment. Professor Mastaglia reported that Ms Cooper "is still considerably restricted from a functional point of view". Dr Zandi reported that Ms Cooper's present symptoms restrict her ability to compete with able bodied people in manually demanding jobs but that "office based jobs" which do not require heavy lifting may be suitable. He did not think that her present condition would "spell early retirement" for Ms Cooper.
181 As is common in this type of case, there can be no definite, precise forecast on the extent of the plaintiff's future diminished work capacity.
182 Ms Cooper wants to return to work, pre-accident she had a stable and productive work history, there is some prospect that she will recover from her left shoulder injury. Doing the best I can, I would reduce the amount awarded for loss of future income by 30 per cent to allow for contingencies.
183 I base my calculation for future loss of income on a net yearly income of $11,000 which equates to a net weekly income of $212.
184 In the absence of evidence as to how long Ms Cooper intended to work, I would calculate the loss to the age of 65 years. Ms Cooper will be 54 years old in February 2008.
185 The calculation for future loss of income is as follows:
$212 per week x 450 (6 per cent multiplier) $95,400
Less 30 per cent for contingencies $28,620
Total $66,780
General damages
186 Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides limits to the amounts that can be awarded for general damages. The present limit is $292,000.
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187 A court may award general damages are awarded for non-pecuniary loss such as pain and suffering, loss of amenities, loss of enjoyment of life, the curtailment of expectation of life in bodily or mental harm: s 3C(1).
188 A court must undertake an assessment based upon the right proportion between a most extreme case and the case being assessed: (see Hendrie v Ruski [2000] WASCA 249, De Blank v Stemberger [2000] WASCA 358.
189 I award damages for non-pecuniary loss pursuant to s 3C(2) – that is, a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount to be awarded. I assess that proportion at 14 per cent which equates to $40,880.
190 Section 3C(5) provides that if the amount of non-pecuniary loss is assessed to be more than Amount B but not more than Amount C, the amount of damages that is to be awarded is the excess of that amount so assessed over Amount B.
191 The prescribed amount for Amount B is $14,500 and the prescribed amount for Amount C is $44,500.
192 Thus the amount is non-pecuniary loss is calculated at $26,380 ($40,880 less $14,500).
Summary of damages
Past economic loss $42,626
Future economic loss $66,780
Past medical costs (rounded up) $11,085
Future medical costs $44,380
Non-pecuniary loss$26,380
Total $191,251
193 I would therefore award damages in the sum of $191,251.
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