Flynn v Stewart - [2001] WADC 276

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FLYNN -v- STEWART [2001] WADC 276

CORAM: WISBEY DCJ

HEARD: 1, 2 NOVEMBER 2001

DELIVERED : 7 DECEMBER 2001

FILE NO/S: CIV 2599 of 2000

BETWEEN: SANDRA JEAN FLYNN
Plaintiff
AND
REBECCA ANN STEWART
Defendant

Catchwords:

Damages - Measure of damages for personal injuries suffered in road accident - General damages - Pre-existing disability - Claimed reduction in earning capacity - Turns on own facts

Legislation:

Nil

Result:

Judgment for $644.30

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Peter Momber

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

Nil

Case(s) also cited:

Nil

WISBEY DCJ: The plaintiff who was the front seat passenger in a Hyundai sedan struck from behind by a Magna sedan at the intersection of Marmion Avenue and Ocean Reef Road, Marmion, on 22 May 1999, brings this action seeking damages for injuries received in the accident, and for their residual consequences.
The claimed injuries are soft tissue damage to the cervical spine and bruising to the chest, giving rise to neck pain and stiffness, headaches, jaw pain and shoulder pain. There is also reference to symptoms in other areas of the body which are not related to the alleged injuries.
The statement of claim which lacks precision, and the general denial defence, provide an unsatisfactory foundation for identifying the controversy requiring judicial determination. The chronologies and statements of issues of fact and law to be determined, filed in accordance with the case management rules, similarly fail to address the purpose for which they are required. In the result, unsatisfactory though it is, the issues between the parties are to be gleaned from the evidence.
The plaintiff is a 57 year old disability pensioner born 7 September 1944. She left school at Junior Certificate level and underwent training to equip her for general secretarial duties. She then worked as a secretarial receptionist for approximately six years until the birth of her first child in 1967. She resumed part time work in 1977, increasing to full‑time, before reverting to part‑time in 1997 because of bilateral forearm and elbow pain exacerbated by work activity. She consulted a general practitioner and was referred for specialist assessment leading to bilateral carpal tunnel decompression in early 1998, and physiotherapy. The plaintiff had periods of time off work, and on medical advice retired from the workforce at the end of 1998. It appears that she has since redeemed a workers' compensation entitlement on the basis of total disability.
The plaintiff confirmed in evidence that prior to the motor vehicle accident she experienced neck pain in the interscapular region, tension headaches, and accompanying difficulties. Her poor health substantially truncated her capacity to engage in everyday physical activities.
The plaintiff stated that immediately post‑accident she experienced a sore neck with tingling in the lower face, and had a violent headache. The bilateral neck pain beginning at a point just below the skull was of a stabbing aching nature, with pain radiating over the temple. She attended the Joondalup Health Campus. Several days later, there being no lessening of symptoms, she attended her general practitioner, Dr Storer, and was referred for physiotherapy.
The plaintiff claimed that her symptoms worsened, with constant tingling in the shoulders, particularly after increased domestic activity. She experienced tingling in the left side of the jaw for some weeks post‑accident. She also experienced blurred vision with headaches. Whilst funding was available, she underwent an exercise programme, which apparently had an adverse affect on her headaches, and caused exhaustion. She had physiotherapy and hydrotherapy. Her symptoms caused her to experience difficulty when looking up and driving a motor vehicle. She claimed that her symptoms affected her domestic and social life.
The plaintiff was referred to the pain management specialist, Dr Salmon, who gave her spinal injections producing short term relief of symptoms. He also prescribed a TENS machine which, on the plaintiff's evidence, was not of much assistance in reducing symptoms. Medication was also unhelpful.
In cross‑examination the plaintiff agreed that she was diagnosed as suffering from mature onset diabetes in March 1996. Pre‑accident she was also receiving treatment for elevated blood pressure, suffered from tension headaches, and was taking anti‑inflammatory medication for neck, upper limb, back and hip pain. She underwent cervical x‑ray on 24 May 1996. She stated that the neck pain prior to the accident was constant but of a different nature to that experienced post‑accident because it was lower in the interscapular region. She also had lower back pain. As at trial she was still taking anti‑inflammatory medication.
The plaintiff was cross‑examined about an accident in which she was involved on 14 January 2000 when the car she was driving collided with a vehicle forward of it. The impact appears to have been one of consequence, although there is no suggestion that it caused further injuries to the plaintiff, or exacerbated her existing symptoms in more than a minor and transient way.
The plaintiff's general practitioner, Dr Storer, saw her after the accident on 27 May 1999. His reports dated 14 October 1999, 21 January 2000, 26 June 2000, 26 October 2000, 25 May 2001 and 22 October 2001 were received in evidence (Exhibits P3.1 – 3.6).
In the report of the 14 October 1999 Dr Storer described the plaintiff's presenting symptoms (inter alia) as a headache and numb feeling in the lower face, constant pain in the left neck and across the lower occipital region including the left shoulder, and shooting pains in the temple and on top of the scalp when lying down. Neck movement was essentially full although with a sensation of pain, and there was tenderness from C1‑T7 posturally centrally and to the left, and from C3‑T4 posturally on the right. Dr Storer's diagnosis on the history obtained was that the plaintiff had suffered a soft tissue injury to her neck and to the trapezius and paravertebral neck muscles, a diagnosis which appears to be inconsistent with the plaintiff's assertions at trial. Dr Storer reported that by 30 June 1999 the neck soreness had substantially improved, although in August 1999 the plaintiff was experiencing left mid thoracic vertebral pain and pain in the left upper half of the neck with facial paresthesia, and there was a decrease in the range of cervical neck movement. As at the date of the report Dr Storer was of the view that a supervised exercise programme would be of assistance in improving her functional stability.
In his report of 26 June 2000 Dr Storer noted that the plaintiff was suffering ongoing occipital headaches brought on by 30 minutes exercise, which problem she claimed was not present prior to the motor vehicle accident. He referred in the report to increased blurred vision in both eyes associated with headaches, neck stiffness, and facial paresthesia. He reported that as at that time she was still suffering from a stiff neck and upper back, with increased pain on exercise. Dr Storer was of the view that the plaintiff's symptoms had improved. He noted that she had been on workers' compensation primary for her forearm and wrist pain, and appears to have taken the view that those non‑accident problems had substantially reduced if not eliminated her work capacity.
In his report of 25 May 2001 Dr Storer confirmed that the plaintiff's position was essentially unchanged. He recorded:
"Her current motor vehicle accident related symptoms are of (1) blurred vision resulting in some loss of confidence getting into and driving a car; (2) constant drawing nagging back of headache; (3) tingling of face and shoulders; (4) between scapular pain; (5) waking at night with pain about T6 vertebrae and lateral to the right of T6; (6) reading and quilting limited to a short time as neck stiffness causes blurred vision."
The plaintiff does not suggest in the statement of claim, nor in her evidence, that the scapular or thoracic pain are attributable to the motor vehicle accident.
In his final report of 22 October 2001 Dr Storer relevantly reported:
"In July 2001 she reported waking constantly due to upper backache. Her home exercise programme did not help so she attended a physiotherapist. However the neck physiotherapy caused worsening of her right headache, left neck tingling and stiffness and blurring of vision."
Otherwise he suggested that there had been little change in her condition.
Dr Storer confirmed in evidence that the plaintiff had numerous health problems prior to the motor vehicle accident including dietary diabetes, elevated blood pressure, and upper limb symptoms. He confirmed that those problems had prevented her engaging in her usual employment and that it had not been possible to find alternative work for her. He claimed that there were no reports of head or neck ache prior to 1998, but that does not sit easily with the history, nor with the plaintiff's evidence. Dr Storer seemed prepared to accept that any problems arising from the motor vehicle accident had not altered the plaintiff's situation to a significant extent, and also that there was little objective evidence of injury.
The plaintiff was referred to Dr John Salmon, a specialist in pain management, who saw her on 11 November 1999 and on several occasions subsequent thereto. His reports of 11 November 1999, 21 December 1999 (2), 14 January 2000, 17 January 2000, 10 March 2000 and 11 April 2000 were received in evidence (Exhibits P4.1 – 4.7).
In his report of 11 November 1999 Dr Salmon recorded the plaintiff's accident caused problems as neck, occipital, and upper dorsal region pain. He reported that the plaintiff described the pain as predominantly in the right neck and left scapular region with bilateral occipital region headaches, provoked by activity. He referred to a long history of variable neck and arm pain which had initially been diagnosed as of arthritic origin. Based on the plaintiff's complaints Dr Salmon concluded that the neck and occipital head region pain related predominantly to upper to mid cervical facet joint dysfunction, including C2 neural sensitisation. The left scapular region pain related to the left mid cervical facet joint problems.
Dr Salmon performed C2/3 and C3/4 facet joint and bilateral C2 sleeve injections, and in a report of 21 December 1999 asserted that there had been significant reduction in head pain, although not a great deal of change in neck and scapular pain.
In evidence‑in‑chief Dr Salmon expressed the view that although the x‑rays taken in May 1996 showed degenerative changes in the lower cervical segments, they were non‑specific, and he did not consider that relevant, since the plaintiff's complaints of pain were in the upper cervical segments. He confirmed that because of the symptomatology he injected the C2/3 and C3/4 segments. He stated the history he obtained was that the plaintiff developed neck and arm pain whilst performing data entry work in 1997 and was forced to cease work in November 1998 whereupon her symptoms reduced, but were exacerbated by the motor vehicle accident on 22 May 1999. He described the plaintiff's motor vehicle caused problem as dysfunction of the upper cervical facet joints.
In re‑examination he stated that the pattern of the plaintiff's pain corresponded with tenderness over the upper cervical joints, the major nerve in that area being the occipital nerve.
On referral arranged by her solicitor, the plaintiff was seen by a neurosurgeon, Mr Watson on 7 January 2000 and reviewed on 2 August 2001 and his reports of 7 January 2000 and 2 August 2001 were received in evidence (Exhibit P6.1 and 6.2).
In his report of 7 January 2000 Mr Watson recorded that the plaintiff asserted that immediately following the accident she experienced neck pain and headaches of occipital origin, with facial symptoms of mandibular distribution. Mr Watson considered that there was a full range of cervical spine movement, and no evidence of neurological compromise. He was of the view that because of her pre‑existing symptoms it was unlikely that the plaintiff would have returned to work had the motor vehicle accident not occurred. Notwithstanding the constellation of symptoms, Mr Watson felt that there would be gradual spontaneous improvement.
Following review on 2 August 2001 Mr Watson reported that the plaintiff was capable of a full range of cervical spine movement, with no evidence of neurological compromise. He was surprised that there had not been greater improvement in the plaintiff's position, with a lessening of her symptoms. He considered that with perseverance and an exercise and strengthening programme, there was potential for the plaintiff to return to the work force in a part‑time capacity.
Mr Watson's evidence confirmed the view expressed in his reports.
Due to her complaints of blurred vision the plaintiff saw an ophthalmologist, Dr Agnello, whose report of 16 October 2001 was received in evidence (Exhibit P5). Accepting the plaintiff's history, he was prepared to relate the blurred vision and headaches to a cervical injury, but did not prescribe any remedial measures, considering that the symptoms would dissipate contemporaneous with resolution of the cervical injury.
Stephanie Jean Martin, a physiotherapist, gave evidence that she assessed the plaintiff for an exercise rehabilitation programme. She concluded that the plaintiff required a three month supervised exercise programme at a total cost of $1,870. The Insurance Commission refused to meet the cost of the programme and the plaintiff did not undertake it.
Anne Lenane, the driver of the vehicle in which the plaintiff was travelling, gave evidence to the effect that the accident was one of consequence, and that the plaintiff was thrown around as a result of the impact. Mrs Lenane gave me the impression that her evidence as to the impact was based on reconstruction rather than memory.
The defendant arranged for the plaintiff to be reviewed by a rehabilitation surgeon, Mr John Saunders, who saw her on 26 October 1999 and issued reports dated 2 October 1999 and 21 January 2000 which were received in evidence (Exhibits D2.1 and 2.2.).
In the report of 2 September 1999 he referred to pre‑accident radiological evidence demonstrating low grade cervical facet joint degenerative disease on the right side at C3/4, and on the left side at C5/6, with degenerative disease of the C6/7 joint and C5/6 and C6/7 discs. Mr Saunders described the plaintiff as in no obvious distress, stating that examination of the neck did not demonstrate any deformity, muscle spasm, or tenderness. He reported:
"Mrs Flynn's main complaints at the moment are of constant soreness and tightness at the base of the skull and she gets tingling across the left shoulder. She thinks it has improved since the accident. She said that she could do most things but for short periods. She cannot look upwards for any length of time. Mrs Flynn's present complaints appear to be a combination of soft tissue injury and aggravation to a pre‑existing degenerative disease of the cervical spine as shown in the bone scan and cervical spine x‑rays taken prior to the accident."
He did not consider that there was the likelihood of permanent disability, and doubted the value of further physiotherapy or a work fitness programme.
In his report of 21 January 2000 Mr Saunders recorded:
"Evidence based medicine and the results of outcome studies show that she is unlikely to benefit further from intervention therapy such as hydrotherapy and physiotherapy. It would seem that a considerable amount of Mrs Flynn's present problems are related to her pre‑accident condition. Mrs Flynn has been off work almost continuously since May 1997 because of a work related injury. Again, evidence based medicine shows that people who have been off work for such a long period due to a work related injury, are highly unlikely to get back into the workforce…again I feel that the majority of her symptoms are related to a pre‑accident condition and problems."
During cross‑examination Mr Saunders expressed the view that the plaintiff's cervical degenerative disease was significantly more than he would have expected for a person of her age. He stated that he would have expected symptoms as a result of the facet joint disease. He was prepared to accept that the accident resulted in some exacerbation of symptoms, but pointed out that the plaintiff had significant treatment which she claimed had not altered her position. He stated that when he saw Mrs Flynn in October 1999 he anticipated that the symptoms arising from the accident would dissipate rapidly.

Findings of fact

Prior to the motor vehicle accident the plaintiff was significantly debilitated; her health problems had caused her to give up gainful employment; and having regard to her age, vocational training and the nature of her incapacity it is unrealistic to suppose that she would have ever returned to the workforce in any capacity. I do not accept her evidence that she is able to identify a specific cervical injury clearly distinguishable from her pre‑existing problems. She would have the Court accept that the cervical symptoms resulting from the accident emanated from the higher cervical level, whereas her pre‑existing problems were inter alia in the mid to lower cervical region. I have already referred to the fact that Dr Storer described the plaintiff's post‑accident presenting symptoms as including constant pain in the left neck and across the lower occipital region including the left shoulder which caused him to make a diagnosis of soft tissue injury to the neck and to the trapezius and paravertebral neck muscles.
In his first report Dr Salmon recorded the plaintiff's accident caused problems as neck, occipital, head and upper dorsal region pain, the plaintiff describing the pain as predominantly in the right neck and left scapular region with bilateral occipital region headaches. He seems to have concluded that the problem originated in the C2/4 area.
I am prepared to accept on the evidence that the plaintiff did sustain an exacerbation of symptoms emanating from pre‑existing cervical facet joint degeneration, which symptoms undoubtedly caused her additional distress and discomfort for a period of time. I do not accept, however, that the additive factor resulted in an increased loss and amenities for more than 12 months, nor in a reduction in earning capacity since the plaintiff did not have an earning capacity at the date of the accident, and that situation was permanent. The plaintiff does not require a supervised exercise programme because of her accident caused symptoms.
I am of the view that the injuries sustained by the plaintiff amount to 5 per cent of a most extreme case which quantifies at $11,600. From that sum must be deducted the threshold amount of $11,500 resulting in an award of damages for non‑pecuniary loss of $100.
Special damages have been agreed at $544.30.
In the result the plaintiff is entitled to judgment for $644.30.