Dragana Dana Poznic v Brendan J O'Donnell
[2001] ACTSC 121
•17 December 2001
DRAGANA DANA POZNIC v BRENDAN J O’DONNELL
[2001] ACTSC 121 (17 December 2001)
CATCHWORDS
DAMAGES – personal injury – motor vehicle accident – soft tissue injury and post traumatic stress disorder – no point of principle.
Fox v Wood (1981) 148 CLR 438
No. SC 111 of 2001
Judge: Higgins J
Supreme Court of the ACT
Date: 17 December 2001
IN THE SUPREME COURT OF THE )
) No. SC 111 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DRAGANA DANA POZNIC
Plaintiff
AND: BRENDAN J O’DONNELL
Defendant
ORDER
Judge: Higgins J
Date: 17 December 2001
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $110,203.51.
That parties be heard as to costs.
This is a claim for damages for personal injury arising out of a motor vehicle accident in which the plaintiff was involved on 7 June 1999.
The accident occurred at the intersection of Wanganeen and Jabanungga Avenues in the suburb of Ngunnawal in the Australian Capital Territory. The suburb is named in honour of the original people of this region. The defendant was the driver of a motor vehicle which failed to obey a “Give Way” sign in the plaintiff’s favour.
Liability was conceded on behalf of the defendant. No allegation of contributory negligence was made. The issue is one of assessment of damages.
In the collision the plaintiff suffered a “whiplash” type injury to the neck and related areas and nervous shock. The combination of those injuries has led to a number of claimed disabilities. As of 4 June 2001, those disabilities were particularized as:
(a) Pain and restriction of movement in the neck.
(b) C8 nerve root irritation leading to paraesthesia and numbness in the little finger and adjacent proximal forearm.
(c) Neck pain radiating to the left trapezius.
(d) Ongoing occipital headaches.
(e) Repeats (b).
(f) Continual muscle spasm in the cervical musculature radiating to the trapezius, particularly on the left side.
(g) Restriction of ability to engage in reading, driving or elevating the left arm without aggravating pain in the neck, left arm and shoulder.
(h) Restriction of ability to perform daily self-care activities due to pain in the left arm and shoulder by reason of aggravation caused thereby to symptoms.
(i) Restriction of ability to perform domestic duties including shopping, vacuum cleaning, washing, making beds, laundry duties and gardening activities.
(j) Need to seek assistance from children and friends to perform domestic chores.
(k) Inability to perform major work duties as a laundry worker.
(l) Restriction of ability to lift objects with her left arm.
(m) Restriction of ability to lift left arm above shoulder height and to move left arm in a sideways movement.
(n) Inability to engage in usual sporting and recreation activities such as needle work, ten pin bowls and tennis.
(o) Restriction in ability to sleep and reduction of quality of sleep.
(p) Requirement to undertake treatment, including massage and consumption of pain killing medication.
(q) Tearfulness and feeling of frustration and depression.
Plaintiff’s personal history
The plaintiff was born on 30 July 1969 in former Yugoslavia. She completed the equivalent of year 12, thereafter undergoing chef and hospitality training for two years.
In November 1988 she emigrated to Australia. This was for the purpose of marrying her ex-husband Marinko Novakovic. They married on 21 January 1989.
Two children were born of this marriage, Milos on 11 April 1990 and Bosco on 18 January 1996.
In June 1989, the plaintiff commenced employment as a casual cleaner, taking some time off for the birth of her son, Milos, but returning to that kind of work as soon as practicable.
In August 1993 she commenced work with Totalcare as a laundry worker.
After taking time off for the birth of her second son, the plaintiff returned to work in May 1996 as a housekeeper with Tall Tree Motel. By this time she had learned English which she speaks faultlessly.
In August 1996 she returned to full time work with Totalcare as a laundry worker.
Unfortunately, the plaintiff’s marriage was suffering difficulties and she and her husband separated in October 1996. She and the children were allocated a Commissioner of Housing dwelling in Nicholls, a suburb near Ngunnawal.
As a result of those difficulties, the plaintiff took about 12 months off work, returning to Totalcare in July 1998.
It is not suggested that this work history indicated any likelihood that, but for the accident, the plaintiff would have had long absences from the paid workforce.
At the time of the accident, the plaintiff felt a “crunch” in the neck but, though the accident happened at 8:30am, she did not begin to experience pain in the neck until 6-6:30pm.
Thereafter, the plaintiff was off work for two days. Her general practitioner was Dr Southi. She first saw him about the accident on 15 June 1999. She complained of left side neck and arm pain and headaches.
She found it increasingly difficult to perform her duties particularly with respect to gowns and big sheets which needed to be lifted and folded. Dr Southi prescribed valium and Voltaren and referred the plaintiff for physiotherapy.
However, physiotherapy was not successful. It caused the plaintiff to feel nauseous.
She took some intermittent time off but, due to continuing pain, went off work October to November 1999. That period of rest did result in improvement but the pain returned when she went back to work. She was referred to Dr Wayne Pahn by Comcare. He changed her medication and referred her to Dr Porter who administered cortisone injections. They were of temporary value in relieving pain. She was also given exercises to perform.
A further stress at that time was a delay of 4-5 weeks in payment of compensation. Her rent was weekly. She was then a single mother supporting two children. Eviction was being threatened.
Then, when she returned to work, she was placed in an area with disabled workers. She felt that her capacity was greater than theirs but she was not permitted to work to her perceived capacity. She felt that her supervisor was treating her as a cripple. She was still suffering delays in payments from Comcare.
In April 2000, the plaintiff was off work for a further two weeks. Thereafter she felt so stressed and depressed that she resigned and sought other employment.
I consider that this change of employment was a consequence of the accident and that the plaintiff’s decision to seek other employment was reasonable in the circumstances.
She had some difficulty in obtaining employment due to her history of prior injury and, of course, being an ongoing client of Comcare. Nevertheless, she did obtain employment on 11 July 2000 with Canberra Hospital as a kitchen hand in the staff cafeteria.
The plaintiff moved to the main kitchen in May 2001. Some of the duties are heavy. She is able to push a food trolley on smooth surfaces but not on carpet. She suffers pain if she uses her left arm.
It seems to her, she said, that there has been some improvement over the last six months. She takes Panadol and Vioxx daily to control pain. She has some relief from osteopathic treatment but had to terminate it when Comcare declined to continue paying for it.
Most activities, to a lesser or greater degree, exacerbate pain, particularly putting the washing out and long driving. However, she finds gardening and vacuuming too difficult to do.
As a result she has the gardening done by a gardening service.
She can no longer engage in the sports she previously engaged in, such as tennis and ten pin bowling.
The plaintiff would like to obtain office work in the future.
In cross-examination, the plaintiff agreed she had engaged in folk dancing but not in a vigorous manner. She now receives help from her son and from her partner, Milan Radvlovic.
She elaborated upon her feelings of depression and the trauma of the accident. She did concede that in late April or May 2000 there was another traumatic event when two drunken teenagers from next door invaded her house (at least, one gained entry). However, she rejected the suggestion that it contributed to her psychological state.
There was stress, she did agree, when, in February 2000, her father was ill.
There was a video of the plaintiff driving a car and attending a soccer match. Apart from the plaintiff clutching the left side of her neck as if uncomfortable there was little that was remarkable in it. It was certainly not inconsistent with any evidence the plaintiff gave concerning her disabilities. There was some footage of the plaintiff lifting a set of shelves. The plaintiff said they were light, being made of aluminium.
It should be noted that, when the plaintiff went off work on 9 May 2000, it was not her choice to do so. Her doctor recommended it. In retrospect it may have exacerbated her psychological state instead of alleviating it as intended. It did alleviate her less pain to some extent.
The medical evidence
Clinical notes were tendered. Insofar as they are legible, they confirm the plaintiff’s evidence concerning her constant pain and disability.
She had transferred, at Comcare’s direction, to Dr Pahn on 4 January 2000, but has recently returned to Dr Southi.
Dr Southi’s report of 9 February 2000 contains some minor errors. He reports that the plaintiff suffered pain immediately following the collision, although he does report a worsening “later in the day.” He confirms her complaints of pain and stiffness across the left side of the neck radiating down the left shoulder, sleep disturbance, headache and nausea.
These symptoms continued. He noticed not only restricted movement but also “moderate spasm” in the posterior left neck and upper shoulder muscles. However, x-rays did not show bony injury or misalignment. He considered there had been ligamentous strain.
He was of the view that, if the plaintiff could undertake prolonged rest, she would improve but continue to suffer symptoms for another six months.
Even as recently as 22 October 2001, Dr Southi detected moderate spasm in the same area. Despite numerous therapies there had been no significant diminution in symptoms. He did not detect anxiety or depression. It was Dr Southi’s view that the pain was real and physical rather than otherwise, though he acknowledged that the pain would have been emotionally and physically draining and had become chronic.
Dr Pahn, on 18 February 2001, noted that there had been extensive psychiatric treatment which Dr Robert Tym, a psychiatrist, administered for post traumatic stress disorder and depression. He considered that this treatment, and pain control medications, had enabled the plaintiff to return to work.
There was a report from Dr Tym to Dr Pahn in which Dr Tym expressed no doubt but that, as a result of the accident, the plaintiff had developed post traumatic stress disorder (PTSD). He had successfully treated that disorder. There was also a major depression related to the chronic pain.
Dr Graeme Griffith, Consultant Surgeon, had examined the plaintiff for medico-legal purposes. The history he noted was substantively in accord with the plaintiff’s evidence.
In the first report of 17 November 1999, Dr Griffith noted that the symptoms reported were the result of “acute musculo-ligamentous sprain, cervical and cervico-dorsal tissues.” He felt that resolution of the disabilities could take one or two years.
On 25 October 2000, Dr Griffith reviewed the plaintiff. Again, his review supports the facts deposed to by the plaintiff. Her neck movements were limited by muscle spasm. Dr Griffith added to his previous diagnosis “aggravation of minor cervical spondylosis.” He considered that it was possible that the spondylosis had been accelerated by the accident but this was of “minor and intermittent nuisance value” only. The depression and anxiety had been effectively managed with Tryptanol. She was fit for the work she was then doing, absent “heavy lifting.”
The most recent report was of 25 September 2001. Dr Griffith noted the continuation of cervical pain with associated restriction of neck movements, muscle stiffness, tenderness in the left trapezius, radiating into the left shoulder and upper arm. Crippling headaches were associated with aggravation of neck pain. They are migrainous. The left-hand grip causes a swelling sensation with sudden involuntary release. She remained psychologically distressed. The symptoms had changed only in being described as of a “much lower intensity.”
Dr Griffith considers that there should be “slow remission and resolution” of pain but the plaintiff remains and will remain unfit to return to work as a laundry hand. She found her current employment congenial.
As at 27 April 2000, Dr Bruce Stevens, a clinical psychologist, assessed the plaintiff. His findings support Dr Tym’s diagnosis. However, he also found chronic pain disorder.
That condition, Dr Stevens considered difficult to predict. It might resolve or deteriorate. Psychological treatment might help but the anxiety and depression needed prior attention. The cost of counselling would be about $2,000. The psychological disorders were regarded by Dr Stevens as moderate to severe.
There was tendered, on behalf of the plaintiff, a report of Dr Robert Scott, an occupational physician. He saw the plaintiff on 16 May 2000. His opinion was straightforward. He recommended various therapies including psychological counselling but said:
“ . . . complete resolution may take another 2 or 3 years, with the susceptibility to further aggravations or exacerbations.”
Dr Max Wearne, an orthopaedic surgeon, prepared reports both for Comcare and the defendant’s solicitor. The first report, of 6 April 2000, advised that she was fit then for part-time light duties. She was likely to be fit for full “pre-injury” duties by the end of May 2000.
The second report of 21 March 2001, Dr Wearne noted that the plaintiff had resigned from Totalcare and had taken up employment at the Hospital. He attributed the numbness of the left little finger to mild damage to the lower components of her left brachial plexus. Though not a psychiatrist, he supported Dr Tym’s diagnosis.
There was, he considered, a permanent effective loss of the left arm, at and above the elbow, of 5%. Though he did not consider that there was physical impairment of her neck, Dr Wearne acknowledged that the “neck sprain (left)” was responsible for the restriction upon the plaintiff’s work capacity, expressing himself as follows:
“In my opinion, Ms Poznic will not ever be capable of performing the full gamut of her pre-injury duties which involved the handling of articles in excess of 5kg.”
Dr Wearne considered that the plaintiff would need, approximately monthly, physiotherapy, massage or acupuncture.
The defendant also tendered a report of Dr Michael Duke, a consultant psychiatrist. He had examined the plaintiff and reviewed various previous reports, including those of Dr Stevens and Dr Southi.
Dr Duke noted that the plaintiff had become very stressed because of the intermittent payments of compensation. He considered that she did have “stigmata of depression.” He found the “attempted robbery” to be “of some interest.”
The “whiplash” and pain syndrome were not suggested by Dr Duke to be otherwise than a result of the accident. He did express the view in relation to the major depression that:
“There were significant temporal gaps between the accident and the development of some of these symptoms, in particular the major depression. You will note that I have listed two psychosocial stresses which were not related to the accident at all and were totally related to her workplace and the management of her finances, which led to the precipitation of the major depression this year and which led to her ceasing work in May 2000.”
I have some difficulty accepting this characterisation of the causative process leading to the major depression. The major problem in the workplace was brought about by the need to put the plaintiff onto lighter duties as a result of her continuing pain and disabilities. The management of finances was a problem because, it being necessary to get the plaintiff back to work, she was subject to inconsistent payments of compensation for the injury. I do not believe that the chronic pain suffered by the plaintiff had no causative role. The totality of the medical evidence suggests otherwise. It played a central role. The so-called “attempted robbery” played no significant role.
In any event, the significant stresses Dr Duke identified were themselves a result of the accident. Thus the major premise of his opinion is mistaken.
Submissions of the parties
Mr Benson, for the defendant, suggested that the psychiatric disorders should be regarded as caused or contributed to by stresses other than the accident and its consequences.
For the reasons stated, I do not believe this assists the defendant. Even if the “home invasion” had some effect, any susceptibility for that effect is a consequence of the accident. In any event, I consider that the medical evidence apart, perhaps, from Dr Duke, suggests otherwise. Even Dr Duke does not attribute any particular consequence to the “home invasion” or “attempted robbery” as the latter called it.
It was further submitted that the psychiatric conditions had resolved or were progressing towards resolution.
There is some substance in this submission.
It was further submitted that the plaintiff has now resumed work with no relevant restrictions.
That is also correct, although the opinion of Dr Wearne, which I accept, that there will continue to be a diminution of pre-injury work capacity, is a significant qualification.
I do not consider that there will, therefore, be a complete return to pre-injury capacity.
Mr Crowe, for the plaintiff submitted that, far from taking time off work from May 2000 to “inflate damages,” the plaintiff had simply complied with her general practitioner’s advice. That advice was not disputed by Comcare.
The work disputes and lack of money were each sequelae of the accident, as was her feeling of isolation.
I agree with those submissions as I have already indicated.
Quite fairly, Mr Crowe conceded that the PTSD had been successfully resolved. From June 2000 there was general improvement but there are still symptoms of pain and an inability to return to pre-injury duties.
The plaintiff has had a moderate soft tissue injury with extreme mental distress for two years. The effects of it will continue for some time. They will never fully resolve but the pain will gradually abate, as will the feeling of depression.
Assessment of damages
General Damages
I consider that the plaintiff has had considerable distress and loss of enjoyment of life over the period of two years since the accident. There has been improvement since then. It seems largely to be a result of psychological improvement. I expect that, particularly if Dr Stevens’ advice is followed, and, if the plaintiff can afford the maintenance therapy recommended by Dr Wearne, further improvement will be experienced.
Nevertheless, there is a significant residual disability which is more likely than not to be permanent. I would not expect the painful condition of the plaintiff’s neck, shoulder and arm to disappear either quickly or completely. There is the likelihood of frequent exacerbations due to the vicissitudes of life. There is the loss of freedom to engage in the full range of pre-injury employment and social activities. I need not detail them all. It suffices to say that I accept the plaintiff’s evidence in that respect (and, indeed, generally).
Those matters lead me to conclude that an award of $45,000 is appropriate. I attribute $30,000 to the past for the purpose of an award of interest. In round figures that is $7,200.
Past economic loss
At Totalcare, for the six months prior to the accident, the plaintiff earned $377.29 nett per week. Up until 23 October 2001, she had lost, due to time off for her disability, a nett sum of $17,141.51. The figure was not disputed. There is no ongoing loss. I award that sum accordingly.
So far as interest is concerned, the plaintiff was paid compensation in the sum of $7,531.37 of which $2,307.00 represents tax paid. Thus the plaintiff was paid $5,224.37. Interest is, therefore, payable on $11,917.14. That generates an award of interest of, in round figures, $1,470.00.
In addition, in accordance with Fox v Wood (1981) 148 CLR 438, I award $2,307.00 being the tax paid on the payments of compensation.
Future economic loss
It was submitted that, as the plaintiff has no ongoing wage loss currently being suffered, a mathematical calculation of the determination of her future earning capacity is not possible. A “buffer” to compensate for her reduced earning capacity was suggested. Noting that a total loss of this plaintiff’s earning capacity could be as much as $414,700, (conventionally discountable to $352,500) it seems to me that the “buffer” suggested by Mr Crowe, $30,000, is somewhat high. I would award $20,000.
Griffiths v Kerkmeyer
There is some evidence that some tasks the plaintiff performed pre-injury have been allocated to her son and Mr Radvlovic. She has paid for garden maintenance. Assistance was more necessary in the immediate post accident period than presently. The need will further lessen as the effects of the injury carry into the future but diminish.
I would, as a matter of estimation and impression only, award $3,000 for the past (not including “Jim’s Mowing”) and $1,500 for the future.
Out of pocket expenses
The out of pocket expenses are agreed at $8,115 to date. To that figure I add the sum paid to “Jim’s Mowing” of $410.00. The total is, $8,525. I award that sum. Most expenses were paid by Comcare and do not, therefore, attract interest. However, the garden expenses and some drugs were not paid by Comcare but by the plaintiff. I add $60.00 for interest, as an estimate only.
Future expenses
For future medical and therapeutic expenses, including drugs, I was invited to award a buffer. I accept the need for ongoing therapy, initially psychological therapy costing about $2,000 and thereafter the need for physical therapy about monthly.
There will, no doubt, be medical consultations for the ongoing use of anti-inflammatory drugs such as Vioxx. I consider a sum of $4,000 appropriate in the circumstances for future expenses.
The total award is as follows:
· General Damages $ 45,000.00
· Interest (at 2%) $ 7,200.00
· Past Economic loss $ 17,141.51
· Interest (commercial rates) $ 1,470.00
· Fox v Wood $ 2,307.00
· Future Economic Loss $ 20,000.00
Griffiths v Kerkemeyer
· Past $ 3,000.00
· Future $ 1,500.00
Out of pocket expenses
· Past $ 8,525.00
· Interest on past $ 60.00
· Future $ 4,000.00
$110,203.51
The total is $110,203.51. That is an appropriate sum viewed globally (if it needs to be). I direct the entry of judgement for the plaintiff accordingly. I will hear the parties as to costs.
I certify that the preceding eighty five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice
Associate:
Date:17 December 2001
Counsel for the Plaintiff: Mr R Crowe
Solicitor for the Plaintiff: Capital Lawyers
Counsel for the Defendant: Mr S Benson
Solicitor for the Defendant: Abbott Tout
Date of hearing: 24 October 2001
Date of judgment: 17 December 2001
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