Cope v Christie - [2000] WADC 338

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COPE -v- CHRISTIE [2000] WADC 338

CORAM: COMMISSIONER GREAVES

HEARD: 9-11 OCTOBER 2000

DELIVERED : 22 DECEMBER 2000

FILE NO/S: CIV 451 of 1999

BETWEEN: MELANIE COPE
Plaintiff
AND
AMANDA JANE CHRISTIE
Defendant

Catchwords:

Damages - Personal injury - Assessment - Soft tissue injury to cervical and thoracic spine - Major depressive disorder of moderate severity triggering deterioration of plaintiff's marital relationship - Memory and concentration difficulties - Injuries accelerated loss of employment and protracted physical symptoms - Total award of $33,475.43

Legislation:

Nil

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr M A McAuliffe

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192

Case(s) also cited:

Beard v Richmond & Ors (1987) A Tort Rep 80-129
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Carslogi Steamship Co Ltd v Royal Norwegian Government [1952] AC 292
Denzin v Nutrasweet [1999] NSWSC 106
Mt Isa Mines Limited v Pusey (1970) 125 CLR 383

COMMISSIONER GREAVES: This is an assessment of damages arising from a motor vehicle accident on 2 October 1997. The defendant admits that the plaintiff was driving her Nissan motor vehicle on Erindale Road, Balcatta on the day in question and whilst stationary at the intersection of Erindale and Balcatta Roads, the defendant collided with rear of the plaintiff's motor vehicle. The defendant also admits that the collision was caused by the negligent driving of the defendant.
The plaintiff alleges that as a result of the collision the plaintiff suffered injuries, loss, pain, discomfort, loss of earnings and has incurred and will in future incur medical and other expenses. The defendant does not admit this allegation and denies that the plaintiff is entitled to the relief claimed or any relief at all.
By way of introduction to the issues on the pleadings between these parties, I refer to the facts contained in the plaintiff's statement of facts and issues dated 7 April 2000 at p 2:
"The plaintiff is 25 years old having been born on 3 February 1975. On 2 October 1997 she sustained soft tissue injuries to the cervical, thoracic and lumbar spines which injuries have resulted in a depressive illness with associated panic attacks, memory loss and difficulties concentrating. The plaintiff claims damages. The non-pecuniary loss arises from pain and suffering, loss of enjoyment of life and the residual disabilities. The pecuniary loss is past and future economic loss, arising from a loss of earning capacity."
The plaintiff asserts that the issues to be determined by the Court are:
"(a) The nature and extent of the plaintiff's injuries.
(b)What economic loss, namely past and future, has resulted from the disabilities caused by the accident.
(c)Whether the plaintiff is likely to incur future medical expense.
(d)The appropriate measure of damages to be awarded in the circumstances."
In the statement of issues of fact and law dated 1 May 2000, the defendant asserts that the issues to be determined by the Court are:
"(a)What, if any physical injuries have been suffered by the plaintiff as a result of the accident.
(b)Whether the physical injuries sustained by the plaintiff in the motor vehicle accident caused any incapacity for work.
(c)What psychiatric problems does the plaintiff suffer and what is the cause of the plaintiff's psychiatric difficulties.
(d)Whether the plaintiff's marital problems caused or contributed to the plaintiff's psychiatric condition;
(e)What was the cause of the plaintiff's termination of employment.
(f)What is the appropriate quantum of damages for:
(i)pain, suffering and loss of amenities;
(ii)past loss of earnings;
(iii)future loss of earning capacity;
(iv)past and future medical treatment;
(v)special damages."
I turn, therefore, to a consideration of the evidence called in support of the plaintiff's claim that on 2 October 1997 she sustained soft tissue injuries to the cervical, thoracic and lumbar spines which injuries have resulted in a depressive illness with associated panic attacks, memory loss and difficulties concentrating giving rise to pain and suffering, loss of enjoyment of life and past and future economic loss.
The plaintiff gave an articulate account of the immediate circumstances of the accident and its consequences for her. Her evidence is that she was wearing a seatbelt and that she was not aware of the impending collision. She said that immediately after the accident she felt a little bewildered by what had happened because she had just been thrown around inside her car. By the time her husband arrived to pick her up she was feeling a bit stiff and sore. In the first few days after the accident she said she could barely move. She wore a soft collar for quite some months after the accident. She said there was just so much pain, it interfered with her concentration a great deal. She said she could not think straight. She said that her neck was probably the most painful. The soft collar helped quite significantly. She said her upper back pain was significant and remains significant. Low back pain developed later but was not so significant.
The plaintiff described her mood during late 1997 and into 1998 as follows:
"A bit like a roller coaster ride, I guess. With most things – particularly being clumsy I felt that was very demeaning and the loss of concentration and memory it was just getting to me because I've never had that problem before and, yes, I gradually got very depressed about it."
She went on to say that she had a lot of trouble with the housework after the accident, she could not do the vacuuming or sweeping or anything that required that type of motion because it caused her too much pain. She said she became very disorganised at work and very defensive. She consulted the psychiatrist, Dr Loke because she had suffered some panic attacks. He changed her antidepressant medication to Efexor-XR. By April of 1999, the plaintiff took one month off work and then was able to return only part time. In June 1999 her employment was terminated and she has not been employed since. She said that she has applied for a couple of jobs since and added:
"… It's stressful looking through the paper in the first instance then I have got selection criteria and I have to ring up and it can get quite overwhelming for me because I have to talk about myself in a positive context and its not very easy with the lack of self confidence I've had in myself."
The plaintiff enjoyed a tertiary education at Edith Cowan University where she graduated Bachelor of Science in Biological Science in 1995. She is a fully invested rover with a queens scout award. Since the accident her commitment to the scout movement has dwindled because she said she could not be involved in many of the activities. She used to do a fair bit of canoeing which she enjoyed. She said she could not now commit herself to becoming a venturer leader because of what she called her emotionally related personal problems. She said that she is still having a lot of problems with her upper back. Her shoulders are always tense and occasionally she wakes up with pains in her neck. She said her back is always in pain and sometimes her lower back. She is currently taking 225 milligrams Efexor-XR as an antidepressant and 150 milligrams of Tramal for her back pain. She said that her concentration is improving now and she eventually hopes to find some work in research. She said that it was wrong to assert that she was in a rut prior to the motor vehicle accident and that she was depressed, miserable and unhappy.
Counsel for the defendant probed the plaintiff's evidence closely. He asked her whether she was experiencing discomfort in her neck while giving evidence and she replied:
"My muscles are like pulling like a strain or something and they're aching. Sometimes when it's really bad I feel like the bones in my neck are grinding against each other … Not at the moment but it can."
Counsel asked her to describe her symptoms in her thoracic spine and she replied:
"It's like a pain that’s always there it doesn't really go away. Even when I take pain killers that only sort of masks the pain and when the doctors prod around they aggravate it as well … It's there all the time and it just makes my upper body feel very heavy."
She said that analgesics do not make the pain go completely but they do reduce the amount of pain.
During cross-examination, the plaintiff agreed that she was qualified to work in the environmental, medical and food fields. She said that during the 16 months before she obtained employment at the Pathcentre, she applied for some 50 different jobs, which applications were not successful. She said that she was "content" with her position as a laboratory assistant at the Pathcentre but it seems that both she and her employer were of the opinion that she was over qualified for the position.
She said that she had suffered from no form of depression or anxiety prior to the accident and she agreed with counsel for the defendant that it is her case that her emotional problems, her depression and her marital difficulties have arisen only after the accident. She said she did not expect to obtain employment immediately after leaving university. She said that in the last three months of 1997 after the accident, she had a lot of problems working and her work performance was atrocious. The plaintiff agreed that 15 months have now elapsed since her employment at the Pathcentre was terminated. She said she has applied for one or two jobs in the medical area over that time. She was asked to explain why she has not made further applications and she replied:
"It's very difficult for me. I get very stressed out about it. Just even looking through the papers stressed me out. It just seems like a whole lot of pressure that I can't always handle."
She said she would find it difficult to sit down and write an application for employment then and there:
"Because it's hard to string together the sentences at the moment. My mind just doesn't think clearly enough to put the application together well enough."
The plaintiff denied that she was waiting for the trauma of the trial to be concluded before she started to look for employment actively. Counsel for the defendant questioned the plaintiff at length about her circumstances during the five years prior to the accident, the state of her relationship with her husband before and after their marriage in early 1997 and her work performance at the Pathcentre during 1997. The plaintiff denied the existence of any depressive illness prior to the accident, she denied that her relationship with her husband was such that it gave rise to emotional stress prior to the accident although she admitted that she and her husband experienced some lack of communication, and the plaintiff denied that her work performance at the Pathcentre prior to the accident was other than satisfactory although she conceded on one occasion her employer had found it necessary to speak to her about her attitude.
I turn to the medical evidence. The plaintiff consulted her general practitioner Dr K C Si the day following the motor vehicle accident. In his report to the plaintiff's solicitors dated 24 October 1997, he advised that the plaintiff had sustained soft tissue injuries to her neck, bruising of the left libia, pain in the left foot, pain in both shoulders and tenderness in the mid thoracic vertebrae. He expressed the opinion that the cause of the injuries was hyperflexion-extension of the neck from the accident. By 17 October 1997, Dr Si found that the plaintiff had attained a full range of pain free neck movements while there was some tenderness in the thoracic spine. By 18 February 1998, Dr Si was able to report that the plaintiff had returned to work and her symptoms continued to improve. Dr Si reviewed the plaintiff on 9 May 1998 and reported to the plaintiff's solicitors on 23 June 1998:
"She continues to suffer problems with concentration and registration. She has occasional low back pain. Because she has been making mistakes at work without recollection she might lose her job. She has to cope with writing notes all the time. Her neck has been quite good although her mid thoracic spine gets aggravated easily and has to take medications for relief."
Dr Si advised that examination was unremarkable. It is to be observed that Dr Si referred the plaintiff to Dr Allan Kermode at this stage and I shall refer to his opinion shortly. On 22 October 1998, Dr Si reported that the plaintiff was suffering from depression, occasional panic attacks, and was easily stressed. She continued to complain of low back pain and required Brufen for relief. She reported improvement in her depression. Her memory and concentration had improved. Her neck was asymptomatic. She continued to take Zoloft 100 milligrams a day for her depression and Brufen 200 milligrams a day for back pain.
The plaintiff's general practitioner referred her to the rheumatologist, Dr Patrick Cheah, who examined the plaintiff on 31 December 1997 and reported to Dr Si that day in part as follows:
"On examination, she was capable of a full range of cervical spinal movements which were non-painful and she was neurologically intact in both upper limbs. There was palpable tenderness over the upper and mid cervical spine centrally, as well as paraspinally (left more than right). Her shoulder movements were full and non-painful. She also had palpable tenderness over the upper dorsal spinal region centrally. Other significant findings were the presence of hypermobile joints. I note that x-rays of her cervical spine undertaken have not shown any structural bony injury. On present assessment, she has features that would be consistent with the cervical and upper dorsal spinal strain injury, this resulting from her involvement in the MVA of 2 October 1997. In view of her continuing symptoms, it would be best for her to be fitted with a TENS machine as this could diminish her oral analgesic requirements."
Dr Cheah saw the plaintiff again on 13 February 1998 when he reported to Dr Si in part:
"She has had a trial on the TENS machine and this did not result in any dramatic effect on her neck symptoms, though it did alleviate to some extent her back symptoms. She is continuing with the use of Voltaren Emulgel and Feldene prn. At her attendance today, she complained of problems with short term memory loss and she is keen on undergoing a CT head scan to exclude the possibility of any intracranial pathology. I have acceded to her request for this. On examination, she has predominantly left sided cervical paraspinal tenderness and she is capable of a good range of cervical spinal movements which are largely pain free. She remains neurologically intact in her upper limbs. There is palpable tenderness over the mid dorsal spinal region centrally."
By 27 March 1998, Dr Cheah informed Dr Si that the plaintiff reported definite symptomatic benefit from the TENS machine, that her neck is "quite good" and that she is mainly troubled by pain over the dorsal spinal region.
Review on 3 June 1998 revealed that the plaintiff was still aware of central neck pain, more often upper cervical/occipital and she also has accompanying pain over both supra scapular regions. Examination again revealed a full range of cervical spinal movements and low grade palpable discomforts centrally. She remained neurologically intact in her upper limbs and her shoulder movements were full and non-painful. Review on 4 September 1998 revealed little change. By 2 December 1998, Dr Cheah reported that the plaintiff has ongoing symptoms of neck, trapezial as well as mid dorsal spinal pain and she still has trouble coping with her household work as well as gardening. Anaesthetic injections to the trapezial region were not effective in reducing pain although injections to the mid dorsal region did produce short term relief. On 20 January 1999 Dr Cheah reported:
"She is still aware of aching symptoms in her neck bilaterally and she is aware of constant soreness over the mid back region. She usually experiences an increase of her low back pain with the commencement of her menstrual period and this can persist for a whole week. She says that she gets someone to do the house cleaning when her husband is away at work in Eneabba. She is still on treatment with Zoloft 200 mg bid and she takes Brufen about one table daily. On humid days when her symptoms are more prominently felt, she takes 2 ‑ 3 Brufen tablets daily. On examination, she is capable of a full range of cervical and dorsolumbar spinal mobility. There is palpable tenderness over the upper cervical paraspinal region bilaterally and she has tenderness over the mid dorsal spine centrally. She has normal straight leg raising bilaterally and there are no focal neurological signs referrable to her upper or lower limbs. Shoulder movements remain full and non-painful."
Dr Cheah reviewed the plaintiff again on 3 March 1999 following a fall on 3 February 1999 but there seems to have been little change in her soft tissue injuries. The same may be said following a further review on 28 July 1999. Dr Cheah did not review the plaintiff again until 8 May 2000. On that day, Dr Cheah reported that the plaintiff told him that her most prominent symptoms were referrable to her upper back where she was aware of a dull ache for most of the time and this appears to be mainly present centrally and to the left side. On examination, she had full range of cervical as well as dorso‑lumbar spinal mobility and tenderness was mainly present over the upper and mid dorsal spine centrally. There was a low grade left sided cervical para-spinal tenderness. Neurological examination was normal. In his report of 16 August 2000, Dr Cheah says that there has been improvement of her condition over time and her residual symptoms were referrable to the mid dorsal spinal region which he expected to diminish slowly over six to 12 months. He considered that it was unlikely the plaintiff would be left with any serious residual clinical disability. Dr Cheah considered that the plaintiff was capable of undertaking full time sedentary employment. She continued to take Tramal 50 milligrams two to three tablets daily which was effective in providing pain control of her spinal symptoms. He expected her analgesic requirements to diminish with the progressive reduction of her symptoms. The plaintiff reported that her upper back which had not been causing her any major problems tended to feel sore towards the end of the day. She was undertaking a gym program which was helpful in maintaining flexibility and muscle strength.
The plaintiff consulted Dr Allan Kermode who reported to Dr Si on 16 April 1998 where he observes that her soft tissue symptoms were then mostly mid thoracic and intermittent, relieved both by a TENS machine "and if she is concentrating". He continued:
"Since the accident the patient reports that she seems to get confused easily, and lost her job as a lab assistant in cytology because she was told that she was 'forgetting things'. As an example, she felt she could not cope with multiple tasks, and could only perform one or two at a time. The patient reports she is sleeping quite well now, but I note that she still wakes two or three times per week at 2 or 3 am and often is unable to get back to sleep once awake. She experiences occasional ice pick cranial pains, and also occasional headache of tension type.
…
Testing of immediate recall memory was extremely poor, indicating poor registration, and five minute recall was moderate when tested, but within one minute of thinking about the question she was able to correctly recall all of the name and address. Serial 7s were excellent and she could repeat 7 numbers forward but again within seconds had forgotten the number.
…
This patient reports memory and concentration difficulties, which on formal testing appear to be a problem with registration and concentration rather than a true dysmnestic syndrome. It is likely that these reported memory disturbances are due to poor concentration, and they do not indicate an underlying cognitive disorder. Complaints of this kind are common in people with depressive illness, with anxiety, and with persistent symptomatic musculoskeletal discomfort."

Dr Si referred the plaintiff to Dr Boon Loke, consultant psychiatrist who reported to him on 28 April 1999 that he agreed with Dr Si that the plaintiff was suffering from "a major depressive disorder of moderate severity." Dr Loke gave evidence that this diagnosis was consistent with her memory and concentration difficulties. The plaintiff saw Dr Loke on 11 June 1999 and he reported on 7 September 1999 to the plaintiff's solicitors:
"She felt that she was 'back to functioning at 75% normal self'. She estimated that her concentration had improved to 85% and her energy level to 90%. Her appetite and sleep pattern were still fluctuating. Mrs Cope said that her motivation was still low and she did not do much housework other than what was necessary. On 11 June 1999 Mrs Cope also talked about the stress that she experienced at work. She said that her employer complained that her work performance was not good enough although admitted that she had made improvement.
…
Mrs Cope was in a tearful state when she reported that she had received a termination notice from her employers, Pathcentre. Mrs Cope believed that her husband was not coping well with her problems. They had been having some marital problems and she was fearful that he might walk out of the marriage. My assessment of Mrs Cope on 11 June 1999 was that she had made partial improvement in her depressive symptoms but she was facing work termination and deterioration of her marital relationship. I advised her to increase the dosage of Venlafaxine to 300 mg each morning."
The plaintiff saw Dr Loke again on 23 July 1999 and he reported to the plaintiff's instructing solicitors on 7 September 1999 as follows:
"Mrs Cope told me that she had had a job interview and had been offered a job with a financial planning company. However, she lacked in confidence, not knowing if she would be able to cope with a new job. Other than her lack of confidence, Mrs Cope appeared to be in relative remission from her depressive disorder. However, earlier in the month of July she had more conflicts with her husband. I encouraged her to consider marital therapy but she thought that her husband would refuse to participate in marital therapy. I advised Mrs Cope to continue taking Venlafaxine, 300 mg each morning."
Dr Loke expressed the opinion that the development of her depressive symptoms would:
"…
Very much depends on her success in managing her new job and future development of her marital relationship. Under enough stress in the future, Mrs Cope has a risk of having a relapse of her depressive disorder despite maintenance antidepressant therapy.
…
"… it is my opinion that she is now able to work full time without any limitation or restriction. In view of her impaired confidence she will require special allowance from her employer, during her settling in period, before assessing her work performance."
On 12 October 1999, Dr Loke records that the plaintiff's job with the financial planning company did not eventuate and that she was currently unemployed. Subsequently Dr Loke saw the plaintiff and her husband, Phillip, on 26 November 1999 when the plaintiff:
"… indicated that she ha[d] become emotionally detached from [her husband]. She appeared to be more emotionally prepared for separation except for worries concerning financial stability."
On 11 January 2000 Dr Loke recorded the plaintiff's account of the disharmony between the plaintiff and her husband on New Year's Day and that since 25 February 2000 the plaintiff had been living with her mother. He expressed the opinion:
"It is my view that Mrs Cope's physical pain and disability following the motor vehicle accident on 2 October 1997 and subsequent development of a major depressive disorder have triggered a deterioration in her marital relationship. Marital conflicts and domestic violence have further exacerbated her depressive symptoms and reduced her self-confidence. In the foreseeable future if she is able to avoid falling into the same vicious circle of dependence on her husband, domestic violence, further decline and self-confidence and increasing dependency, Mrs Cope may begin to recover from her depressive disorder and regain her confidence.
…
In my opinion Mrs Cope will require one or two months to adjust to her marital separation and her new accommodation. After that she will probably benefit from vocational rehabilitation starting with a part time supervised work trial in a suitable job and gradually increasing to a full time capacity."
The plaintiff saw Dr Loke on 27 April, 25 May, 22 June, 27 July and 23 August 2000. On 18 September 2000, Dr Loke reported to the plaintiff's solicitors that Mrs Cope said that she had had "a lot more happy times". She was generally more relaxed. She still lacked in self-confidence. She was fearful of failure. She could concentrate a lot better. She had stopped blaming herself for her problems.
The plaintiff's solicitors sought an opinion from Dr Linda Hayward, consultant psychologist, who saw the plaintiff on 19 and 26 October 1999 for neuro‑psychological assessment.
On 2 November 1999, Dr Hayward reported to the plaintiff's solicitors in part as follows:
"Mrs Cope is a woman of superior intelligence and memory ability. Two areas of relatively mild difficulty are revealed in her test profile. One is a tendency to become variable in attention under conditions of increasing information load. The other is that when Mrs Cope is presented with a lot of complex information in a problem at once, she needs more time than might normally be expected for her to plan and organise her response. Given time, she is able to do the problem effectively and well. Mrs Cope's variability in attention and slowness to formulate plans could result from either primary or secondary (or a combination) effects of the motor vehicle accident. Such symptoms are common post-concussional sequelae, and in Mrs Cope's case her response to experiencing these has led to significant emotional and social repercussions. The present assessment reveals no other signs of cognitive impairment and this suggests that her current difficulties are most probably a result of her continuing psychological distress, which may be in part related to a learned reaction to the difficulties she experienced at work soon after the accident.
…
I believe Mrs Cope retains the cognitive capability to return to work, the main barriers to her being successful in obtaining and maintaining employment at this time being her lack of confidence, and symptoms of anxiety and depression. Further, she now has to overcome a work record which shows she was terminated from her previous employment. This will place her at a considerable disadvantage as a job applicant."
By 21 August 2000, Dr Hayward was able to report to the plaintiff's solicitors:
"Mrs Cope is a woman of very superior intelligence and memory ability. With few exceptions, her test scores showed improvement which has been accompanied by some improvement in her psychological state."
The plaintiff's solicitors also referred the plaintiff to Dr John Ker, consultant physician. He reported to them on 3 December 1999 that he saw the plaintiff on 12 November 1999 at which time he had been briefed about her history. Dr Ker reported:
"At the time of that consultation Mrs Cope reported how she continued to experience a degree of ongoing neck pain and inter scapular pain. More particularly she described to me a series of problems affecting her concentration, memory and as a result, work performance. It would appear that in addition she has developed feelings of poor self-esteem, lack of confidence and is considered to meet the criteria of a depressive illness of significance. I have no doubts that her symptoms owe their onset to the motor vehicle accident in which she was injured on 2 October 1997. The extent to which her depressive and concentration problems can be directly attributed to that accident I feel is somewhat less certain. I would, however, have thought that this is a matter better addressed by her treating psychiatrist, Dr Loke. I believe that your client's treatment should be pursued to encourage active exercise and strengthening movement for her thoracic spine and neck area. She has a very satisfactory range of movements and I would have thought that with a sustained and systematic personal active exercise regime, her physical symptoms of pain and stiffness could be kept under control."
Dr Ker saw the plaintiff again on 8 August 2000. On 31 August 2000, Dr Ker reported that the psychological tension she was under limited her capacity to compete effectively for employment and expressed the hope that with ongoing and sustained psychotherapy, the plaintiff would again be able to harness her clearly evident work skills and intellectual ability to generate a useful and sustained income of significance.
Counsel for the defendant neatly summarised the defendant's case prior to calling evidence when he said:
"…
The defendant's position is simply that this is a minor soft tissue injury, it certainly has taken some time to resolve, but that all these other factors of the marital issues, the work issues and the subsequent loss of the job, they're unrelated to the motor vehicle accident. They're contemporaneous in time but the causal link is missing. That is the thrust of the defence case."
The defendant called Dr Sam Febbo, consultant psychiatrist, who interviewed the plaintiff on 14 June and 28 June 1999, 6 December 1999 and 21 February 2000. By his report of 8 March 2000, Dr Febbo said that it was not his view that the plaintiff's presentation was in keeping with a post concussional disorder and that there is no organic basis to the plaintiff's reported difficulties in concentration and memory. In his report of 23 July 1999, Dr Febbo accepted that a component of her impaired concentration and loss of memory may well have been related to the deterioration in her mental state arising from her physical condition, which coincides with the opinion expressed by Dr Kermode. Dr Febbo was asked to say whether the plaintiff's alleged psychiatric condition was caused by or contributed to by any factors which are not related to the motor vehicle accident on 2 October 1997 and if so what factors and the extent (in percentage terms) to which those factors may have contributed to the alleged condition. Dr Febbo responded on 23 July 1999:
"There has been some contribution to Ms Cope's depression from the difficulty she has been experiencing within her marriage and her loss of work.
…
The nature of psychiatric practice is such that I am unable to make a comment in relation to "percentage" contribution."
Having reviewed the plaintiff on 6 December 1999 and 21 February 2000, Dr Febbo expressed the opinion that there had been a significant improvement in the plaintiff's mental state. He once again expressed the view that it is difficult to make a specific comment about the extent of contribution of the significant factors in the development of the plaintiff's depression. Dr Febbo concluded that at the time of his report (3 March 2000) the significant issue perpetuating the plaintiff's depression was the difficulty in her marital relationship. He expressed the opinion that from a psychiatric perspective the plaintiff is now in a position to make a return to employment, either to her pre-accident employment or generally. He said that the marital relationship remains a source of considerable stress to her and this may be associated with her experiencing difficulties in returning to work.
It is to be observed that the plaintiff and her husband separated on 25 March 2000.
The defendant called the orthopaedic surgeon, Mr Nicholas Anastas, who saw the plaintiff on 20 April 1998, 25 January 1999 and 3 October 2000. He reviewed the history in his report of 20 April 1998. Upon examination, he reported to the defendant's insurers on 20 April 1998:
"From the aspect of the cervical spine she is tender in her left and right trapezii Muscles and over the mid cervical spinous processes. Her cervical spine has full movement without any irritability, but the extremes of rotation particularly to the right did cause some discomfort. From the aspect of her thoracic spine she is tender over the spinous processes of the 4th and 5ththoracic vertebrae. Her thoracic spine has good movement. The extreme of extension of her thoracic spine caused discomfort in the lumbar area. She does not have a neurological deficit in her upper limbs."
Mr Anastas expressed the opinion that the plaintiff was still having symptoms from her cervical spine and thoracic spine as a result of the motor vehicle accident. He expressed the opinion that the low back pain which started two months before his examination had no relationship to the motor vehicle accident. He was of the opinion that full stabilisation had not then occurred but he would expect her symptoms to completely recover with further time. By his report of 25 January 1999, Mr Anastas recorded that the plaintiff continued to complain of upper back pain all the time and that her symptoms caused her difficulty with a number of activities such as vacuuming, mopping, brushing, hanging the washing, raking the garden, gymnasium work, off road four wheel driving, and continuing her activities with the Scouts Association and dancing. After examination, Mr Anastas expressed the opinion that the plaintiff was continuing to have symptoms from the soft tissue injury to her cervical and thoracic spine as a result of the motor vehicle accident. He expressed the opinion that the plaintiff had then a current disability in her cervical spine and thoracic spine "of no more than very mild severity and the prognosis is for her to completely improve with time and not be left with any permanent impairment."
Mr Anastas also expressed the opinion in his report of 25 January 1999 that "her motor vehicle accident has not interfered with her capacity to carry out full time employment." I take this opinion to suggest that the soft tissue injuries have not interfered with the plaintiff's capacity to carry out full time employment.
On 3 October 2000 Mr Anastas reported to the defendant's solicitors that for a period of six to nine months prior to 3 October 2000 the plaintiff has taken analgesics and engaged in an exercise and rehabilitation programme. She advised that her neck had improved but still aches about once a week. She said that the pain in her upper back had not improved. Examination revealed that her cervical spine was tender in each trapezius muscle at the base of the neck but otherwise had full movement without any irritability. Her thoracic spine was tender about the spinous process of the ninth thoracic vertebra. Her thoraco‑lumbar spine had full movement, but the extreme of extension and lateral flexion caused some discomfort between her shoulder blades in about the region of the fifth thoracic vertebrae. Mr Anastas expressed the opinion that since January 1999 there had been some improvement with her cervical spine symptoms but no improvement with her thoracic spine symptoms. In his opinion, the symptoms collectively did not constitute anything more than a current disability of very mild severity. Her injuries have not left her predisposed to the earlier development of degenerative changes in her cervical spine or thoracic spine.
Counsel for the defendant put to Dr Allan Kermode the hypothesis that prior to the motor vehicle accident the plaintiff had concentration difficulties and marital difficulties and asked him whether it was open to suggest that there was an underlying depressive condition developing in the plaintiff prior to the motor vehicle accident. The doctor gave no definitive answer. Counsel went on to ask Dr Kermode about the development of depression in the context of persistent symptomatic musculo-skeletal discomfort and asked him whether it was fair to say that he was speaking about long term discomfort which ultimately manifests itself in the development of depression. Dr Kermode replied that he was not and that this plaintiff said she had not experienced neck or shoulder tension prior to the motor vehicle accident and reported disturbance of memory following the accident. He continued:
"My interpretation, however, was that her disturbance of memory was not due to a structural brain or spinal injury but was secondary to these other factors, some factors of which I was aware such as her neck and shoulder discomfort which appeared to be temporarily related to the motor vehicle accident and perhaps conceivably other issues to which I was not party and was unlikely to be aware of.
…
Anxiety and depression can arise de novo without pre-existing stresses. It can arise from stresses such as traumas as in motor vehicle accidents, in which case it is occasionally referred to as post traumatic stress disorder and finally persistent muscle and musculo-skeletal pain may be a trigger or a contributor to underlying anxiety or depression. However, my examination on that day would not really be able to establish which of those is the primary cause."
Counsel for the defendant put to the plaintiff's general practitioner, Dr Si, that the plaintiff's soft tissue injuries progressed normally from the time of the accident to February 1998 after which her condition started to deteriorate. Counsel asked him whether his notes revealed what triggered the deterioration and he replied that in his opinion it was probably her problems at work that triggered it off but it was necessary to bear in mind that the problem with her work was possibly secondary to her lapsing memory and poor performance.
Counsel for the defendant put to Dr Linda Hayward that she had no knowledge of the history of the plaintiff's marital relationship discussed by Dr Febbo and she said she did not. She also said the plaintiff did not inform her that her employer had occasion to speak to her prior to the motor vehicle accident. She accepted that as a matter of course she was dependent upon the information which the plaintiff gave her. Counsel then asked her whether in the absence of detailed evidence about such prior circumstances she was able to speak definitively about causation. She replied:
"What you have just told me – problems with personality clashes, seeking counselling possibly for a marriage problem, prior to the accident, those don't seem of the same kind of ‑ how to put it – significance as what happened afterwards but it does change it obviously, but I'm not sure because I don't have enough information."
Counsel suggested that the plaintiff's matrimonial breakdown was "a major issue" for the plaintiff and the witness replied:
"It is now, although with the marriage having broken down a whole lot of things have improved. I don't really know what you're asking me. I'm sorry."
Dr Hayward agreed that marital breakdown is often a significant cause of stress. She agreed that an inability to obtain work may also be a cause of stress as may the loss of work. She agreed that such occurrences can lead to depression.
The psychiatrist, Dr Boon Loke, accepted in cross-examination that the fortunes of the plaintiff's marital relationship were hard to pick on the information supplied to Dr Febbo. He thought the motor vehicle accident might accelerate the deterioration of the relationship, while it was not the trigger of it.
Dr Boon Loke said that the plaintiff had not told him she had problems at work prior to the motor vehicle accident. Counsel suggested to Dr Loke that there were multiple stresses in the plaintiff's life each of which could cause or aggravate or accelerate a depressive problem. Dr Loke replied:
"I think you are trying to force me into a medical student's model of listing all the possible causes and say that all of them can cause depression. In theory that's correct, but for each individual case it's not that helpful. So we end up with a long list of possible ideologies and we don't know what to do with them. That's in clinical practice."

He agreed that he did not know which of the factors was the critical factor which caused the onset of the plaintiff's depression and added "and that's come to judgment."
Dr Loke spoke about predisposing causes, precipitating causes and perpetuating factors when counsel put to him that he could not definitively say that the motor vehicle accident caused the breakdown of the plaintiff's marriage. Counsel suggested that each of the factors spoken about could be a trigger to the breakdown of the marital relationship and Dr Loke replied:
"In theory, yes. In theory, yes, each one can be but then one has to judge which one is the most likely and which one is the most potent at the time."
A little later Dr Loke continued:
"If you're mainly interested in the precipitating cause or the triggering cause, then we would take the motor vehicle accident with subsequent pain and disability as the main trigger."
The defendant called three witnesses from the Pathcentre, Tracey Hay, Dawn Garner and Stephen Spiers. Mrs Garner said that she observed the plaintiff undertaking her duties as a laboratory assistant at the Pathcentre and described the plaintiff as "idle, lazy and distracted." The witness accepted that she was not aware until towards the end of the plaintiff's employment that the plaintiff was suffering from major depression of moderate severity. She expressed the opinion that the plaintiff frequently stated that the laboratory tasks which she was expected to undertake were beneath her qualifications. She was of the opinion that the plaintiff's memory deteriorated in the last six months of her employment. She was of the opinion that the plaintiff was better suited to a research position.
Mr Spiers knew the plaintiff prior to her employment and knew that she was looking for a research position. He said that her performance was such that in the end "I would have had to have terminated her anyway." He accepted that the plaintiff was a venturer leader and rover in the scout movement and engaged in those activities enthusiastically prior to the accident. He encouraged her to apply for a permanent position with the company in cytology because that position involved research. Counsel for the plaintiff put to Mr Spiers that the evidence of the plaintiff was that having undertaken a temporary position in cytology she did not get the permanent job because she had difficulty coping with multiple tasks. Mr Spiers accepted that he had been told nothing about the plaintiff's performance in cytology. He accepted that he continued the plaintiff's employment in April 1998. He said he did not then know that she was suffering from major depression of moderate severity.
The witness asked the plaintiff to provide a written response to her employer's concerns in May 1999 which became Exhibit 6, in which the plaintiff says in part:
"I do admit that I have a lot of personal problems at the moment, resulting from the car accident that I was involved in (October, 1997) and am still seeing a specialist regarding the pain that I am continuing to suffer. I do also agree that I most probably need counselling and I have taken your advice on this matter. Under normal circumstances I am usually very organised and yes, I would prefer to be working in a research position rather than where I am at present. However, I have found that there is sufficient variety involved in CRA to keep my mind active and thus I feel content where I am. I also enjoy working with the multitude of personalities that can be found in our department.
…
Yes I do agree that I need to do something about overcoming my personal problems, before things get out of hand, in order to improve my work performance. As a consequence I have taken steps towards dealing with this problem."

The nature, extent and cause of the plaintiff's injuries

In my opinion, the medical evidence for the plaintiff establishes on the balance of probabilities that the plaintiff suffered soft tissue injuries to her cervical and thoracic spine in the motor vehicle accident. I find that she quickly regained a full range of cervical spinal movements although she continued to suffer pain in her upper back. Both Dr Cheah and Dr Si expected her soft tissue symptoms to resolve completely. I accept the opinion of Dr Anastas that the plaintiff's soft tissue injuries are now of no more than very mild severity.
I have mentioned that by the middle of 1998, Dr Si had referred the plaintiff to Dr Allan Kermode for an opinion. I accept his opinion that the plaintiff was experiencing a problem with registration and concentration with no underlying cognitive disorder. I have referred to his evidence that such memory and concentration difficulties are consistent with the experience of soft tissue injury symptoms. In my opinion, but for the motor vehicle accident the plaintiff would not have suffered these soft tissue injuries in her upper spine, neck and shoulders and would not have suffered the memory and concentration difficulties which she experienced.
There is an issue between the parties in this case whether the motor vehicle accident caused the plaintiff's depressive disorder. It is of course an issue which must be resolved on the evidence. The onus is upon the plaintiff to establish that but for the motor vehicle accident she would not have developed the depressive disorder.
Dr Loke expressed the opinion that the plaintiff's physical pain and disability following the motor vehicle accident and the subsequent development of a major depressive disorder triggered a deterioration in her marital relationship. I accept the opinion of Dr Loke in this regard rather than that of Dr Febbo. Having regard to the expert evidence of Dr Loke I find on the balance of probabilities that the plaintiff would not have developed the depressive disorder but for the motor vehicle accident and the soft tissue injuries which she sustained. I find that the soft tissue injuries materially contributed to the development of the depressive disorder and triggered the deterioration in the plaintiff's marital relationship. I reach the conclusion that the motor vehicle accident materially contributed to the development of the plaintiff's depressive disorder by way of inference from the evidence for the plaintiff as a whole including that of Dr Loke.
I also accept the evidence of Dr Febbo that by 3 March 2000, the significant issue perpetuating the plaintiff's depression was the difficulty in her marital relationship. The plaintiff and her husband separated on 25 March 2000. It is plain from the evidence of the plaintiff and Dr Loke that the separation has helped to resolve the plaintiff's depression.

Assessment of damages for pain and suffering

This is a case of soft tissue injury to the cervical and thoracic spine which materially contributed to the development of a major depressive disorder and triggered the deterioration in the plaintiff's marital relationship, which in turn has extended the time over which the plaintiff continued to experience the physical symptoms of the soft tissue injury.
In my opinion, the plaintiff has all but recovered from the consequences of the accident and is not left with permanent disability. Damages for non‑pecuniary loss are to be assessed as a proportion of the maximum amount that may be awarded in a most extreme case. In my opinion, in this case, that is 10 per cent of $225,000 or $22,500, so that after deducting amount B of $11,000, the plaintiff is entitled to an award of $11,500 for pain and suffering.

Assessment of damages for pecuniary loss

The plaintiff is entitled to damages for pecuniary loss not merely because her earning capacity has been diminished but because the diminution of her earning capacity is, or may be productive of economic loss: see Graham v Baker (1961) 106 CLR 340 at 347.
I find on the evidence to which I have referred that the plaintiff would have later lost her job at the Pathcentre in any event, a job for which she was obviously overqualified.
In my opinion, however, the plaintiff's injuries accelerated the loss of her job at the Pathcentre and were thereby productive of economic loss, which I would assess as equivalent to her net income for 12 months or $19,354.92. In my opinion, the plaintiff's injuries have not been productive of future economic loss because she is now fit for the research work for which she is qualified. I award interest at the rate of 5 per cent on the past loss of earnings from 19 June 2000 to judgment in the sum of $1,458.24.
Having reached this conclusion, there was no issue between the parties that the plaintiff is also entitled to past loss of superannuation entitlements at 7 per cent of her gross weekly wage of $456.23 being $31.93 per week for 52 weeks or $1,660.36, discounted in accordance with Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192 by 30 per cent for administration expenses. I award $1,162.27 under this head.
I find that the plaintiff has recovered from the effects of the motor vehicle accident to the extent that she no longer requires medical consultations and prescription drugs and is therefore entitled to no award for future medical expenses. The plaintiff is entitled to special damages for past medical expenses as agreed.

Conclusion

Accordingly, the plaintiff is entitled to judgment in the sum of $33,973.52 made up as follows:
Pain and suffering  $11,500.00
Pecuniary loss  $19,354.92
Interest on pecuniary loss  $ 1,458.24
Loss of superannuation entitlements  $ 1,162.27
$33,475.43