Debra Anne Roulston v Elizabeth Savage

[2006] ACTSC 95

DEBRA ANNE ROULSTON v ELIZABETH SAVAGE
[2006] ACTSC 95 (28 September 2006)

DAMAGES – personal injury – motor vehicle accident – assessment – soft tissue injuries – no issue of principle.

Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844

Ramsey v Watson (1960) 108 CLR 462

Griffiths v Kerkemeyer (1977) 139 CLR 161

No SC 512 of 2005

Judge:     Connolly J  
Supreme Court of the ACT
Date:      28 September 2006

IN THE SUPREME COURT OF THE  )
  )  No SC 512 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:DEBRA ANNE ROULSTON

Plaintiff

AND:ELIZABETH SAVAGE

Defendant

ORDER

Judge:  Connolly J
Date:  28 September 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $42,178.

1. The parties may apply in relation to costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred on 11 December 2002.  The plaintiff is a young woman who has been working in the child care industry since leaving school in 2001.  On the day of the accident she was engaged in these duties and had a child with her in her vehicle which was stationary behind another vehicle in Theodore Street, Curtin in the Australian Capital Territory.  The defendant collided with the rear of the plaintiff’s vehicle, propelling it forward into the rear of the vehicle in front.  Liability has been admitted, and the matter proceeded before me as an assessment of damages only.

1. The plaintiff complains of ongoing neck and back pain since the accident, and ongoing headaches, together with depression.  Although she has continued to work in the child care industry, she says that she has had to give up additional part-time work, and that her day to day activities have been affected by the accident.  Her claim is for a buffer for past and future economic loss, and for assistance with activities of daily living on the basis of assistance given to her by friends and family.

1. There is no question that the plaintiff was involved in a motor vehicle accident of some force, in which her small vehicle was struck from behind by a larger sedan and pushed into the vehicle in front.  The accident was of such severity that police and ambulance attended, and she was taken to the Canberra Hospital emergency department by ambulance.  The hospital notes indicate that she was complaining of neck pain (acute) and headaches.  She was sent for radiology of her neck and back, with no accident related abnormality detected, although a scoliosis convex was noted in the mid thoracic spine.  She was prescribed simple analgesics and referred to her treating general practitioner.  I note that none of the expert witnesses have referred to this finding of pre-existing scoliosis in their reports.

1. I note that the hospital notes describe a “low speed MVA” in the triage assessment, and the continuation sheet states “Hit from the rear at low speed”.  In a medico-legal report in the plaintiff’s case Dr Griffith, orthopaedic surgeon, states that “Police estimated the impact speed at approximately 90 kph”.  No police report to this effect was tendered.  The ambulance notes tendered in the plaintiff’s case says “Driver of small sedan hit in rear at low (< indecipherable) speed.

1. I am satisfied that in this motor vehicle accident the plaintiff sustained soft tissue injury productive of neck and back pain, and headache.  I am satisfied that the impact was of some severity, causing significant damage to her small sedan, and that she did take some time off work in the aftermath of the accident.  It is common ground that she was able to return to full-time work, and has been working in the child care industry on a full-time basis ever since.

1. The issue in these proceedings is the extent of the ongoing claims of disabling neck and back pain.  The plaintiff’s case is that she has suffered ongoing pain and discomfort in the cervical and thoracic spine.  Both medico-legal experts in the plaintiff’s case, Dr Griffith, and Dr Veness, a psychiatrist, record a history of ongoing chronic pain.  Neither saw the hospital x-ray report.  Dr Veness says in his report that:

   Chronic pain has been her most prominent symptom since the accident.  It is the chief cause of disability following the accident. Beforehand, Ms Roulston was a pain-free and very athletic young woman who enjoyed competitive basketball.

2. Her evidence was of having problems with her back “almost every day” since the accident.  She said that before the accident she would be tired after a full day of childcare work involving looking after and lifting very young children but other than that was she was “fine”.  In cross-examination, she said she had no recall of pre-accident complaints of back pain to her general practitioner.

1. The plaintiff’s general practitioner’s notes were tendered by the defendant and put to the plaintiff in cross-examination.  They show that she attended on 30 September 2002 complaining of a motor vehicle accident in which she hit a kangaroo.  The notes indicate that she gave a history of “Occasional back pain in the past.  Mild back pain”.  She was prescribed Voltaren.  She again presented on Tuesday, 1 October 2002 complaining of “persistent lumbar back pain, left paralumbar tenderness” and was given a medical certificate for time off work.  On 12 October 2002 her general practitioner certified her as fit to return to work.

1. She attended on her general practitioner on 19 December 2002, the day after the subject motor vehicle accident, and the notes say:

   MCA - hit from behind car write off – pushed into another vehicle working at time, wearing seat belt.  No LOC - some soreness in lower back @ neck. ...  90% ok now.

She attended again on 30 December 2002 and obtained a medical certificate.

1. The next attendance relevant to neck or back pain is on 23 April 2003, where it is recorded:

MVA 4 mo ago.  Friend cracked neck last night - sore neck and headache.

1. The next complaint is on 2 July 2003 where the notes record:

Exacerbation of neck pain Monday night after assault.

1. The medical notes from her general practitioner thus show relatively few consultations for this accident, but complaints of back pain before the accident, and indeed a significant event in September 2002, requiring over a week off work for back pain, and an assault in July 2003 involving exacerbation of neck pain.

1. Her general practitioner, in a report of March 2006, states:

On initial review by myself, Debra had symptoms consistent with musculoligamentous sprain injury of the neck.  Later consultations involve thoracic and lumbar back pain that Debra states commenced following the accident.

Ms Roulston has a history of a previous Motor Vehicle Accident occurring on the 29/9/2002.  She presented at that time with lumbar back pain requiring analgesics with persistence of pain noted during consultations into October.  Consultations in November 2002 make no mention of back pain and it is unclear as to whether this injury had completely resolved prior to her accident in December of that year.

I believe Ms Roulston’s ongoing symptoms cannot entirely be attributed to the accident in December 2002. The accident/s may have contributed to her back pain and muscle tension, however its persistence over time with no demonstrable lesion on x-rays suggests ongoing intrinsic mechanical factors.  Ms Roulston has pain that varies in location indicating that a discreet lesion is unlikely. Examination has revealed tenderness in the neck, lumbar region and thoracic region during different consultations.  There has been restricted forward flexion.  The nature of the accident is consistent with an exacerbation of back pain in the weeks to months following the accident.  Beyond this time, I would attribute ongoing pain to inherent mechanical processes.

The general practitioner’s report is the only report that refers to an inherent problem with the plaintiff’s back, being the scoliosis reported on x-ray.  The plaintiff acknowledged in cross-examination that “someone has said at some stage that I have curvature of my spine” but this has never been said to Dr Griffith or Dr Veness.

1. The plaintiff’s explanation for the relatively few complaints of back pain in the general practitioner’s notes in the months after the accident was that “although I do like Dr Kathleen Calder, whenever I spoke to her about my back issues it was as though she didn’t want to hear about them”.  I am not satisfied with this explanation, and I accept that the clinic notes – which records attendances on a number of general practitioners, not just Dr Calder - accurately reflect complaints made by the plaintiff over the years.

1. This general practitioner’s report is significantly at variance with the report of Dr Griffith, but it is, it seems to me, written with the benefit of a full knowledge of the plaintiff’s prior history.  In his report of 16 August 2004, Dr Griffith says that the only prior health problem was an adenoidectomy six years prior to the accident, and said:

She gave no other history of significant prior injury, in spite of having been involved in two MVA’s.  In the first, in December 2002, she had the misfortune to hit a kangaroo in her car whilst driving on the Federal Highway, but did not suffer any personal injury - more than can be said for the kangaroo!

1. I am satisfied that in fact the incident with the kangaroo, which occurred in September 2002, resulted in two attendances on her general practitioner with complaints of back pain, prescriptions for Voltaren and time off work.  Dr Griffith’s report says that:

At the time of injury on 11.12.2002, your client suffered:

1.Nervous shock - recovered.

2.Severe contusive injury chest wall from belt and steering wheel impact - recovered.

3.Contusive injury to the head and neck and thoracolumbar spine -recovered.

4.Acute musculoligamentous sprain, cervical and cervicodorsal spine - (resolved)

5.Acute musculoligamentous sprain, lumbar spine (resolved)

6.Contusions at the site of the seatbelt (resolved)

Sequelae:

1. Persistent cervical myalgia with focal tenderness – ongoing.

2. Persistent lumbar myalgia with focal tenderness – ongoing.

3.     Chronic adjustment disorder with elements of depression and anxiety.

1. This diagnosis is prefaced by the statement that “there are no confounding factors arising from pre index injury or intercurrent medical conditions which impact upon her current symptomatology in my opinion.” It seems to me that this diagnosis, taken in the absence of knowledge of the prior complaints of back pain, cannot be relied on.

1. In his second report of April 2006 Dr Griffith repeats his understanding that there had been no prior significant injury, and that the previous motor accidents “should be considered quarantined” from the subject motor accident.

1. Dr Griffith’s report of August 2004 notes “severe contusive injury chest wall from belt and steering wheel impact”, and “contusive injury to the head and neck” would be consistent with his understanding of a motor vehicle rear end impact at about 90 kph, but there is no history in the contemporaneous hospital or ambulance notes to this effect, and nothing in the general practitioner notes.

1. Dr Griffith noted in his August 2004 report that she was performing normal work duties and was able to undertake activities of daily living, and confirmed this in his later report, although he there noted that she was having difficulties with vacuuming and hanging out washing.

1. Dr Veness’ report of 6 December 2005 also notes an accident in which:

It appears Ms Roulston hit her head, probably on the steering wheel, for she later had a painful swelling (without laceration) on the forehead.  She is unsure if she lost consciousness.

1. There is nothing in the hospital or ambulance notes to this effect, and it seems to me that Dr Veness has also given his report on the basis of no relevant prior history and, it seems, on the assumption of an accident of much greater impact.  Unfortunately, this must impact on the extent to which it can be relied upon, because his opinion that the plaintiff sustained chronic neuropathic cervicobrachial pain disorder was based on a history of no prior neck or back pain.

1. Dr Veness noted that she was in full-time work and made no recommendation in relation to self-care needs.  Dr Veness diagnosed a chronic pain disorder, but again this diagnosis is based on an inaccurate history.

1. The defendant has tendered two expert reports from Dr Wearne, orthopaedic surgeon.  He has also taken a history of no prior back pain.  In his first report of November 2004 he made a diagnosis of soft tissue injuries to the neck, shoulders and back, with a prognosis for a full recovery, and with an ability to perform her pre-injury duties.  In his later report of September 2005 he reported a significant improvement in her condition, and stated that in his opinion:

Following the accident, Ms Roulston experienced pain in her neck, shoulders and back.  The pain in her neck and shoulders settled, but she complained of residual pain in her lower back.  However, her low back pain is now diminishing and causing mild disability only. ... At the current rate of progress it is my opinion that Ms Roulston will make a full recovery from her injuries within the next six months and will be left with no disabilities.

1. The plaintiff’s claim is based on two expert reports that do not record a full history and attribute all of the plaintiff’s present complaints to this motor vehicle accident.  Neither Dr Griffith nor Dr Veness were aware of the prior history of complaints, treatment and time off work for back pain following the September 2002 accident involving the kangaroo, or the x-ray report of pre-existing scoliosis and the plaintiff’s awareness of an issue of “curvature of the spine”.  As the High Court observed in Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846, following Ramsey v Watson (1960) 108 CLR 462:

It is trite law that for an expert medical opinion to be of any value, the facts upon which it is based must be proved by admissible evidence.

1. Dr Wearne was of the view that the plaintiff was fit for work and all activities of daily care without assistance.

1. It seems to me that, given that the plaintiff’s expert witnesses have reported in the absence of any record of the prior history of back complaints, the most reliable report is that of the plaintiff’s general practitioner.  I note also the relatively low level of ongoing treatments, which is evidenced both by the treating general practitioner’s notes and the agreement on out-of-pocket medical expenses to date in the sum of $1,470.  I find that the plaintiff in this accident suffered soft tissue injuries which exacerbated a pre-existing propensity to back pain and actual back pain in the manner described by her general practitioner.  The opinions of the expert witnesses in her case must, it seems to me, be significantly discounted by their absence of an accurate prior history, and, particularly in the case of Dr Griffith’s report, the generally overstated history of the accident – 90 kph ‑ and reports of contusions and bruising consistent with a high speed impact to a driver who was wearing a seatbelt, but without any support in the contemporaneous notes.

1. I am satisfied that the plaintiff sustained soft tissue injuries in the accident, and that these have persisted over some years, although I note that there have also been independent and unrelated aggravations, particularly the assault which in the medical notes of the general practitioner were productive of aggravated neck and back pain, but not referred to by the specialists.  I am satisfied on all the medical material that this condition has now largely resolved, so that any ongoing neck or back pain into the future cannot be now attributable solely to this accident.

1. It seems to me that this must sound in general damages as a relatively modest award in the order of $16,000 for the past, generating interest of $1,208 and $4,000 for the future, amounting to a total award of $21,208.    

1. The plaintiff was given a certificate for a week off work following the accident, and after that was placed on conditions going to lifting.  She obtained relief work at a child care centre and continued with some additional part-time work in a fast food store, although she gave this up in August 2003.  She commenced studies towards a diploma in Early Childhood Studies in 2004 and has successfully obtained qualifications in this field, and continues to study to upgrade the qualifications.  She has worked on a full-time basis throughout.  She agreed that both before and after the accident her hours would vary, with some fortnights of 70 hours and some of only 42 hours.

1. Her claim for economic loss was particularised on an arithmetic basis, on the basis of the difference between a pre-accident gross wage of $391 per week and post-accident gross wages of between $246 and $295 per week.  She agreed, however, that her earnings at the time of the accident were more in the order of $280 per week gross or $ 246 net, and that her present earnings were in the order of $660 per week gross or $525 net.  It seems to me that counsel for the plaintiff was entirely correct in abandoning the arithmetic claim, as it is clear that the plaintiff has been able to work full hours, and by advancing in her qualifications and experience, is now earning considerably more than at the time of the accident.  While I accept that she has given up part-time work in the fast food industry, the evidence is that she then took up another such job, which she left, then worked for a period on an additional part-time basis helping a friend who is a contract office cleaner for some months, before abandoning part-time work altogether.  There is nothing unusual about a young person commencing full-time work at a starting salary and maintaining part-time additional work, and giving up that additional work as their seniority and wages increase in the full-time job.

1. It seems to me that her employment history since the accident is quite inconsistent with any substantial claim for economic loss.  On the medical evidence, the only specialist who proffers an opinion consistent with an inability to work full-hours in her profession is Dr Veness, and his report, as I have noted, did not record any prior history of back pain, or the subsequent aggravating events.  To the extent that he does proffer an opinion, it really only goes to saying that she would have limitations of full-time hours if she was unable to rest and recuperate while not in employment.

1. Counsel for the defendant made the submission that economic loss should be confined to a nominal sum for the weeks following the accident, given the evidence that the plaintiff’s actual earnings have been greater than her pre-accident earnings ever since she returned to full hours work in early 2003.  It seems to me that, while this is arithmetically true, I have found that she has persisted in work with ongoing and resolving soft tissue injuries, which does represent an impairment of her earning capacity.  I accept her evidence that she sought to avoid the heavier aspects of child care work, and that by studying and gaining qualifications she has been able to limit these roles.  I accept that in the years since the accident her ongoing soft tissue injuries have had an impact on her economic capacity going beyond the week or so that she was not actually working, and that it has limited her range of employment which, it seems to me, should sound in a buffer in the order of $15,000, inclusive of interest and superannuation components.  It seems to me that, consistent with my findings on general damages, the award for future economic loss should be in the order of $3,000, making a total award for economic loss of $18,000.

1. The plaintiff has made a claim for damages for domestic assistance on the basis of the rule in Griffiths v Kerkemeyer (1977) 139 CLR 161, which has been particularised as a past claim for some $13,640 based on initial high levels of care settling down to between two and four hours per week, and for an ongoing claim for five years at four hours per week. I am not satisfied that this is sustainable on the basis of the medical evidence in this case, and I find that, save for the immediate aftermath of the accident, any adjustment of the activities of daily living as she has lived either with her parents or independently, has not been caused by accident-related disabilities, but rather the normal give and take of domestic relationships. I would award the sum of $1,000 for past gratuitous care limited only to the first six months following the accident.

1. Out-of-pocket expenses were agreed arithmetically in the sum of $1,470, and I award this sum.  It seems to me that, on the basis of my findings that the accident-related component of any ongoing back and neck pain has largely resolved, the future care component should be limited to a sum to cover some ongoing analgesia and general practitioner care.  Dr Veness made a recommendation for a form of massage treatment, which was not referred to by Dr Griffith, which would have involved a very considerable cost of about $70 per week over the course of one to two years.  The plaintiff said that she had had an initial assessment, and her counsel sought to tender a report from a Ms Morrow, a Feldenkrais practitioner.  This report was dated July 2006, and was obviously not served within time.  I did not give leave to tender this report, as it seemed to me that the defendant would have no way of meeting the report.

1. Dr Veness made a recommendation for such therapy (which it may be said would be more within the speciality of the orthopaedic surgeon) in December 2005, and it seems to me that, if it was to be the plaintiff’s case that this form of massage therapy was necessary, there was ample time to obtain a report which could be served within time and responded to.  I note that, in a claim where treatment expenses over three years and nine months amounted to less than $1,500, the Feldenkrais massage would generate costs in the order of $3,000-$7,000 for one or two years of weekly sessions.  This is wildly out of the range of treatment prescribed or recommended to date by general practitioners and specialists.  I would award the sum of $500 for future treatment expenses.

1. This amounts to an award in the following terms:

General damages – past $16,000.00

Past interest $  1,208.00

General damages – future $  4,000.00

Past economic loss $15,000.00

Future economic loss $  3,000.00

Griffith v Kerkemeyer $  1,000.00

Past out-of-pocket expenses $  1,470.00

Future out-of-pocket expenses $     500.00

Total: $42,178.00

1. I consider this amount to be appropriate on all of the evidence and award this amount.  I will hear the parties as to costs.

   I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

   Associate:

   Date:   28 September 2006

Counsel for the plaintiff:  Mr S Pilkinton 

Solicitor for the plaintiff:  Maliganis Edwards Johnson           

Counsel for the defendant:  Mr PJ Nolan   

Solicitor for the defendant:  Phillips Fox     

Date of hearing:  4 September 2006               

Date of judgment:  28 September 2006