Drew v Bryan
[1999] WADC 45
•26 AUGUST 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DREW -v- BRYAN [1999] WADC 45
CORAM: O'BRIEN DCJ
HEARD: 16 AUGUST 1999
DELIVERED : 26 AUGUST 1999
FILE NO/S: CIV 1467 of 1997
BETWEEN: FRANCINE NARELLE DREW
Plaintiff
AND
KERRY ELLEN BRYAN
Defendant
Catchwords:
Personal injuries - Motor vehicle accident - Quantum of damages - Soft tissue injury - Plaintiff substantially recovered - General damages awarded
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
General and special damages awarded.
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Simon Walters
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Andjelic v Marsland (1996) 70 ALJR 435
Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995
Fabo v Craig, unreported; DCt of WA; Library No 5023; 12 August 1996
Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996
Southgate v Waterford (1990) NSWLR 427
Case(s) also cited:
Nil
O'BRIEN DCJ: The plaintiff claims damages for injuries received in a motor vehicle accident on 27 August 1997.
The plaintiff was the driver of a car which was involved in a collision at the intersection of Guildford Road and Seventh Avenue Maylands. The defendant, who was the driver of the other car, admitted negligence. The issue at trial was the quantum of damages.
The plaintiff was born on 9 August 1975 and at the time of the accident had just turned 20 years of age. She finished school at the end of Year 12 and then studied photography at Mount Lawley TAFE for about three years. She did not complete her course.
During her studies, the plaintiff started work with Linfoot Cleaning Services as a cleaner on a part-time basis. Initially, the plaintiff worked two hours a day from 5.00 pm until 7.00 pm. Later, the plaintiff worked a morning shift at Midland TAFE from 6.00 am until 8.00 am. Those jobs involved emptying waste paper bins, vacuuming, dusting, wiping down and cleaning the toilets.
A week before her accident, the plaintiff commenced work at Mulberry Hill Farm as a waitress. This job involved clearing tables, serving drinks and polishing glasses. Before her accident, the plaintiff worked Saturdays and Sundays.
The plaintiff did not return to her cleaning job until 26 September 1997. During part of the time off work, she was paid sickness pay. About two months after the accident, the plaintiff recommenced her job as a waitress at Mulberry Hill Farm.
In October 1998 the plaintiff resigned her jobs and went to live in Kununurra with her father. The plaintiff left her employment at Mulberry Hill Farm because of a personality clash with her supervisor. For two or three weeks prior to Christmas in 1997, the plaintiff was employed by her father cleaning recently constructed units and houses.
The plaintiff testified that she likes working as a cleaner and has no immediate plans to alter that occupation. However, she is considering taking further studies, depending on what courses are available in Kununurra.
Injuries
The plaintiff hurt her right knee in the accident and scraped her right hand. She said that "all across" her chest was sore and she had pain in her neck, down her back and through her shoulder blade. The plaintiff was treated at the Emergency Department at the Swan District Hospital after the accident. She said she was given a tetanus injection, a prescription for Brufen (anti-inflammatory tablets), analgesics and given a neck brace. She was not required to be admitted to hospital.
The plaintiff testified that she felt nauseous; her ribs and chest were sore; she had pain in the hip including bruising across her hips; pain in the neck and was hardly able to move her neck.
A report from the Swan District Hospital indicates that the plaintiff's injuries were as follows:
Soft tissue injury cervical spine
Soft tissue injury thoracic spine
Soft tissue injury right knee
Bruising anterior thigh
Superficial grazes right forearm.
Thereafter, the plaintiff was treated by her general practitioner, Dr Dale, a physiotherapist and her chiropractor, Dr Michael Haynes.
Dr Dale's medical reports were tendered by consent and Dr Dale was not cross-examined. Dr Dale reviewed x-rays of the plaintiff's cervical and thoracic spine and right knee and there was no abnormality detected. The medical and chiropractic reports reveal that there has been a steady improvement in the complainant's condition since the accident.
The plaintiff saw Dr Dale on 21 September 1998, her previous visit being in May 1998. Dr Dale reported that in the interim the plaintiff complained of experiencing only very occasional neck pain and soreness between the shoulder blades. On examination, the plaintiff had full neck movements, no muscle spasms and the power in moving her head left to right was equal and full.
The plaintiff's next consultation with Dr Dale was in February 1999. Dr Dale reported that the plaintiff was experiencing a "very, very occasional twinge in her neck, not often and never lasting very long". The plaintiff was taking a few Panadol, had no sleep problems and never saw a chiropractor. Her only complaint was of being knocked around at a "rather rough rock concert", thereafter having to attend a chiropractor.
Dr Dale later reviewed the plaintiff in August 1999. Dr Dale observed overall the plaintiff's condition had improved greatly, reporting that the plaintiff "does not notice any pain while she is working, sometimes she notices the pain first thing in the morning, but it settles very quickly once she has started moving around". A CT scan of her cervical spine and a plain x-ray of the right shoulder were reviewed and all these images were normal. Dr Dale concluded that the pain was muscular.
Dr Dale was of the view that the plaintiff's injuries were of moderate severity; there should be no long term sequelae; there is no restriction on the plaintiff competing in the open workforce; and she will not require further organised medical treatment. Dr Dale only advised against the plaintiff holding her head fully flexed or extended for long periods of time and encouraged her to continue to do her regular muscle strengthening exercises as a routine.
When Dr Haynes the chiropractor, reviewed the plaintiff on 5 August 1999, he found that spinal ranges of motion were within normal limits, except for cervical rotation, which was marginally restricted, being approximately 85 per cent of normal. Rotation of the trunk to the right caused pain to be felt in the left lower rib cage. There was restricted movement on the T6 vertebra as detected by motion palpation. The upper portions of the trapezius muscles on both sides were very tight.
Dr Haynes was of the view that there has been a minor reduction overall in the plaintiff's work capacity from the date of the accident. His view was that the future work capacity of the plaintiff should not be severely affected by injuries sustained in the accident if she can be retrained in an area of work that she can manage. He stated in his latest report that heavy manual work would be problematic for her due to exacerbations of spinal pain. Overall, Dr Haynes was of the view that there were minor physical residual disabilities associated with the injuries sustained in the accident, being no more than 2 - 5 per cent. He classified her residual injuries as "minor".
The report of Professor Andrew Harper, an occupational physician, was tendered by consent. Professor Harper examined the plaintiff on 30 March 1999. He noted her posture and her range of low back movement as normal and the range of shoulder and neck movements is unimpeded. He noted there was slight tenderness in the sub-occipital area and in the root of the neck on the right side and over the levator-scapuli muscle on the right. He also found slight tenderness over the trapezius muscle on the left and of the spinus process of T4.
Professor Harper was of the view that the plaintiff is capable of full-time work with restrictions and is capable of doing work as a cleaner and waitress. He did not expect her future work capacity to be compromised. Professor Harper anticipated the plaintiff's work capacity to return to normal over the next six months to two years. He noted that the plaintiff was restricted to some extent in that she should avoid prolonged looking up, prolonged looking down and heavy lifting. These restrictions reduce her competitiveness in the open workforce to a small degree but this is temporary. Professor Harper classified the plaintiff's injury as "mild".
Effects of Accident
When she worked for Linfoot Cleaning Services, the plaintiff said that her injuries did not bother her "highly". She just ignored them and when she got home she would apply a hot water bottle and stretch. In her waitressing job, the plaintiff found that she had difficulty carrying laden trays and would use her left hand. However, overall, she managed in spite of her pain.
After unsuccessfully applying for work in Kununurra, the plaintiff was employed by her father to clean newly constructed units and houses. This involved heavy, detailed cleaning. The plaintiff testified that she experienced neck, arm and back pain from continuously scrubbing. She found that kneeling down and looking up a lot would make her stiff and sore and she would have to stop work and stretch. She tried to ignore any headaches she experienced and did not take medication for them.
In April 1999 the plaintiff was employed as a cleaner at the Kununurra District High School for three hours a day, five days a week. She did not have too much trouble with this work apart from cleaning little desks and work which involved looking down for too long. She found it difficult to lift the vacuum cleaner and would use her left hand for this.
The plaintiff also obtained work in a Kununurra hotel as a housemaid. This job involved stripping the rooms, making beds, cleaning bathrooms, mopping and so on. The plaintiff works for up to four hours per day and for seven days a week with two rostered days off. The plaintiff said that she copes "fine" with this work.
The plaintiff said that three or four times a week she gets really sore to the point where she gets headaches and a sore neck and middle back. She said that "it's not anything major" but she nonetheless feels pain.
Ironing, washing and reading and any activity which involves looking up and down for long causes her discomfort.
The plaintiff's mother testified that the plaintiff has a high pain threshold due to the many operations she underwent as a child to remedy abnormalities in her feet. Further, the plaintiff is very nervous when in a motor vehicle, both as a passenger and as a driver.
In my view, although the plaintiff's injuries might be described as mild to moderate, such descriptions do not necessarily assist in an assessment of the degree of pain and suffering. The plaintiff is a stoical young woman and has suffered bodily harm which caused her to take four weeks off work. Two years later, she still suffers a degree of pain and discomfort.
Although the plaintiff returned to the work force in her previous occupation as a cleaner, the range of cleaning activities she is able to undertake is now restricted. She should be compensated to some extent for the reduction of the perimeter of employment, albeit to a modest amount.
Findings
I accept the classification of the plaintiff's injuries sustained in the accident outlined in the various medical reports as being mild/minor to moderate. Albeit the plaintiff suffered pain, discomfort and inconvenience as a result of the injuries, she was able to return to her usual occupation within four weeks of the accident with little, if any, restriction on her ability to carry out her duties. It was only when she undertook rather strenuous cleaning duties in Kununurra that she experienced any real difficulties. The cleaning job in Kununurra was not the usual type of cleaning work the plaintiff had been undertaking in her years as a cleaner. The plaintiff obtained other cleaning work which she was able to cope with, albeit experiencing some pain.
The plaintiff is relatively well educated and does not rule out further studies or in some way working with computers. She impressed me as an honest and resilient person. Under cross-examination she agreed with the assessment of the symptoms as outlined by the medical reports and did not seek to exaggerate her condition. In my view, the plaintiff suffered relatively minor injuries in the accident and has substantially recovered from them. From time to time, she experiences pain and discomfort but this is not of such severity to prevent her from working or participating in her usual social activities. There was some disruption in her activity of night-clubbing some time after the accident, but, as she testified, she has "grown out of" that sort of entertainment.
Non-Pecuniary Loss
Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 provides that "the amount of the damages to be awarded for non-pecuniary loss is to be a proportion determined according to the security of the non-pecuniary loss, of the maximum amount that may be awarded". The maximum amount is currently $219,000 (s3C(3) see Government Gazette 22 June 1999)
To arrive at an award for non-pecuniary loss, it is necessary in the first instance to determine what proportion (ie percentage) the plaintiff's claim is of $219,000 rather than making an assessment of a pecuniary amount and treating that as a proportion of the $219,000 (Southgate v Waterford (1990) NSWLR 427 at 440E-441F approved in Andjelic v Marsland (1996) 70 ALJR 435 and as applied, for example, in Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995; Fabo v Craig, unreported; DCt of WA; Library No 5023; 12 August 1996; and Grubor v Adornetto, unreported; DCt of WA; Library No 5030; 19 August 1996).
I assess the percentage of the maximum amount payable under the Act for the most extreme case at 6.5 per cent. The net amount I award for non-pecuniary loss is therefore $14,235. As this amount is more than $10,500 (AMOUNT B) but less than $33,000 (AMOUNT C) the plaintiff is entitled to the excess of the amount so assessed over $10,500 (AMOUNT B) (s3C(5)).
Accordingly, the net amount of damages for non-pecuniary loss is $3,735.
Special Damages
Although the plaintiff returned to her pre-accident employment as a cleaner, there is a risk that the range of cleaning jobs open to her will be reduced due to her ongoing neck pain. Balanced against that risk is the fact that the plaintiff is a young, intelligent woman who is clearly considering other employment options. In all the circumstances, I consider an award of $10,000 is appropriate and just compensation for the risk of reduction of employment opportunities.
The plaintiff claims the amount of $426 loss of income as a cleaner with Linfoot Cleaning Services (calculation agreed). She further claims the sum of $605.88, being loss of income from her waitressing at Mulberry Hill Farm. I award those amounts by way of special damages.
Further, the plaintiff claims a global amount of $1,500 for future analgesic and anti-inflammatory medications. However, there was no evidence that anti-inflammatory medication would be required in the future and analgesics are required only rarely. I award a nominal amount of $250.
The plaintiff also claims special damages for loss of past superannuation, which I award as outlined in the schedule below.
SCHEDULE
General Damages $ 3,735.00
Loss of employment opportunities 10,000.00
Past economic loss -
Linfoot wages(calculation agreed) $426.00
Mulberry Hill Farm wages 606.00
$1,032.00
Plus 6 per cent interest 61.92 1,093.92
Past superannuation, say, 84.00
Future medication 250.00 $15,162.92
Rounded off to - $15.163.00
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