Foster v O'Connell
[2007] WADC 23
•16 MARCH 2007
FOSTER -v- O'CONNELL [2007] WADC 23
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 23 | |
| Case No: | CIV:1166/2005 | 13-16 NOVEMBER & 8 DECEMBER 2006 | |
| Coram: | MACKNAY DCJ | 15/03/07 | |
| PERTH | |||
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff entitled to judgment for $99,796 | ||
| PDF Version |
| Parties: | JOSEPHINE BRENDA FOSTER VANESSA KIM O'CONNELL |
Catchwords: | Damages Assessment Plaintiff 51 year old female office worker at time of accident Soft tissue and other injuries Total award of damages $99,796 |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 WA, s 3C |
Case References: | Black v Motor Vehicle Insurance Trust (1986) WAR 32, 34 Kandic v Kandic, unreported, DCt of WA, Library No 5208; 20 December 1996 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
VANESSA KIM O'CONNELL
Defendant
Catchwords:
Damages - Assessment - Plaintiff 51 year old female office worker at time of accident - Soft tissue and other injuries - Total award of damages $99,796
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 WA, s 3C
Result:
Plaintiff entitled to judgment for $99,796
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr M A McAuliffe
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Dibbs Abbott Stillman
Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust (1986) WAR 32, 34
Kandic v Kandic, unreported, DCt of WA, Library No 5208; 20 December 1996
Case(s) also cited:
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
(Page 3)
- MACKNAY DCJ:
Introduction
1 The plaintiff is aged 54 years, having been born on 12 September 1952.
2 She is the mother of three girls, whose ages do not appear from the evidence.
3 In 2004 the plaintiff was employed by Mercy Community Services (Mercy) as an administrative assistant, but following the development of symptoms in both arms, and an unsuccessful attempt at resolution of the issues which arose between she and Mercy as a result, the plaintiff was made redundant.
4 She then obtained a few days casual employment with the Nurses Board through an employment agency, but ceased that, for a variety of reasons she said, including aggravation of her symptoms.
5 A few days later, on 13 June 2004, the plaintiff was a passenger in a motor vehicle which was struck from behind by another motor vehicle, as a result of which the plaintiff said she was injured.
6 Apart from one day the plaintiff has not worked since that time, and says she is still unable to do so.
7 The plaintiff is now on a disability pension.
8 Damages are claimed by her.
9 The defendant admits negligence, but not injury, and says that if the latter did occur such was caused or contributed to by "a pre-existing work related injury to (the plaintiff's) right and left arms, which produced symptoms in her shoulders, elbows, wrists and hands".
Plaintiff pre-accident
10 The plaintiff has, she said, an academic history which includes a diploma in business management and marketing and an employment history which includes telephonic, administrative, and clerical work together with operation, with a former spouse, of a mechanical and panel beating business.
11 In 1996 the plaintiff came to Perth on a holiday, she said, and decided to stay on for six months, during which time she worked full-time
(Page 4)
- through a personnel agency, then going to Melbourne to settle her affairs prior to a return to Perth, where she has remained.
12 For the following four years she worked for all but six weeks through "temping agencies", the plaintiff said, although she was unable to explain how her taxable income through those years did not usually reflect anything like full-time employment.
13 After some unpaid work the plaintiff said that in August 2000 she began work with Mercy as an administrative assistant in the youth services department.
14 The work included secretarial tasks for the manager, and work on the computer, and with case workers, and supervision of the maintenance and change-over of motor vehicles, she said.
15 There was a problem with her desk set-up, the plaintiff said, and her request for additional equipment, including a head set and longer cord for a computer mouse, and for other changes, was refused.
16 As a result the plaintiff said she began to suffer pain in the right shoulder, elbow and wrist, with discomfort in the left side of the neck, and in the left elbow and wrist.
17 On complaint being made by her, the plaintiff said, and a request for a review of her work station under the relevant occupational health law, an entity called Workfocus was brought in and did that.
18 As a result some changes were made, the plaintiff said, although Mercy refused to provide a longer mouse cord, and told her not to fit her own.
19 The changes made initially helped the left neck, elbow and wrist symptoms, the plaintiff said, but due to the mouse cord her right shoulder, elbow and wrist got worse, and she then experienced further problems on the left in trying to adjust.
20 The plaintiff said that at the end of 2003 or start of 2004 things got much worse, and she saw Dr Smith and made a workers' compensation claim and took a week's leave.
21 On her return the plaintiff said that she was told she was being made redundant, and as a result she ceased work with Mercy on 28 April 2004.
(Page 5)
22 The plaintiff agreed there had been some personal difficulties at Mercy with other employees.
23 The plaintiff then obtained work at the Nurses Board through a personnel agency, the plaintiff said, having stipulated that she would do part-time work only and did work for a number of days there in late May and early June 2004, as an assistant to the director of the regulatory department. The plaintiff said she found it necessary to ask for a head set and dictaphone, and when she was told on 3 June that the latter might take two weeks to source, informed the board she was not able to do the required work as it would make her work injury worse.
24 The plaintiff said she then stopped work.
25 The plaintiff said she felt the Nurses Board work had made her injury worse.
26 She also felt, she said, that there was so much difficulty in having her needs met that her chances of that in the open work force were minimal, and that she had gone back to work too early, so that she ought to take time for her wrists to heal.
27 Further, the plaintiff said that she had stopped work as she had "felt disgusted" that whilst working for a health care organisation she was not given simple equipment.
28 The plaintiff said that her intention then was to wait for about three months and then she would "give it another go".
29 However, 10 days after stopping work the plaintiff said she was involved in the accident the subject of the present claim, and apart from a single day, she has not worked since.
Accident
30 On Saturday 13 June 2004 the plaintiff said she was a front seat passenger in a Nissan Pulsar motor vehicle being driven in Great Eastern Highway away from the city, which stopped at the Orrong Road intersection as the traffic lights there turned red.
31 The plaintiff said she heard an "almighty screeching" and turned her body to the right to look behind.
(Page 6)
32 There was then a "bang", she said, her sunglasses came off, and she felt something "knocking" in her head which kept going on and on, whilst she also felt as though she was outside the vehicle watching.
33 After that the plaintiff said she did not recall much, although she did remember getting out of the vehicle, and having a brief altercation with the defendant.
34 The Nissan vehicle could not be driven due to damage at the rear, whilst the defendant's vehicle had its front pushed back, the plaintiff said.
35 The plaintiff said she was driven home by the son of the Nissan driver.
36 The first pain she experienced was headache, the plaintiff said, which "hasn't gone since", and within half an hour she could not stand on her left ankle, due to pain.
37 At home, the plaintiff, who became tearful on recounting these events in evidence, said she did not feel like she was part of her body, and was not able to sleep that night nor for several subsequent nights.
38 The day following the accident she went to see Dr Oehlers, with whom she had made an appointment some weeks before, she said, and she then felt numb all over and was tender in the neck, upper and lower back.
39 At that time her wrists, elbows and right shoulder were all about the same as prior to the motor vehicle accident, she said.
40 The plaintiff also saw Dr Baskaranathan about her workers' compensation injury, she said, but denied telling him left shoulder symptoms then existed.
Plaintiff post-accident
41 Over the following months the plaintiff said she experienced "unbearable" pain, including pain in the left side of the head at the front, the jaw on the left, the rear of the neck extending into the head, the upper and lower back, the left shoulder, and the left ankle, and she was also unable to sleep.
42 Treatment included physiotherapy, which "helped a bit", a temporary plate for the jaw, and medication, including Panadeine Forte.
(Page 7)
43 The plaintiff said that her left elbow and wrist became worse, whilst symptoms in the right elbow and wrist were not as severe.
44 She said that since then she always (had) a headache, the left ankle has worsened, she "forever (had) pain" in the neck, which was still bad although there had been gradual improvement, the upper and lower back were both "a little bit better", the left shoulder and upper arm were worse, "bad pain" aggravated the left wrist and elbow, and the jaw was improved, but "locked" and "cracked".
45 Her medication included up to 13 pain killing tablets per day, the plaintiff said, together with anti-depressant medication.
46 The left shoulder was such that she was unable to carry a handbag, and even her bra strap affected it, she said, and it could also cause a "chain reaction" down to the left elbow and wrist.
47 The right shoulder had been affected to a lesser extend, the plaintiff said, although the problem on the left meant she had to do more things with the right arm, which aggravated it.
48 As to employment, the plaintiff said she "would love to", but could not work, as she was unable to sit for any length of time and because of the pain.
49 She was unable to work with her head down, the plaintiff said, or to work on a keyboard, whilst headaches prevented her from concentrating, and her "memory was shot to pieces".
50 The plaintiff's work related symptoms in the right wrist and shoulder had been worse prior to the accident, she said.
51 After the accident her emotional symptoms were such that she saw a psychologist, Ms Jane Schutze, on 7 August 2004, as she could not sleep, manage or function, the plaintiff said, and she later began to see another psychologist, Ms van der Burg, and was now improved, although she still had "days".
52 The plaintiff denied she suffered from depression prior to the accident.
53 The plaintiff said that but for the accident she would have worked full-time to age 65 years, and "to an extent" beyond that.
(Page 8)
54 The plaintiff did not now socialise, she said, did not go to the cinema, the seats being too uncomfortable, and was unable to participate in cycling, rock climbing, gardening or ballroom dancing, whilst her reading was affected and she was nervous when travelling in a car.
55 A workers compensation application had been the subject of a hearing, and had then been dismissed, she agreed.
Treating doctors
56 Doctor Douglas Smith is an Innaloo general practitioner of 47 years standing who saw the plaintiff in March 2004 and issued a first medical certificate which stated she had pain in the right elbow, wrist and hand which was consistent with epicondylitis and tenosynovitis, and that she was fit, but required treatment.
57 In evidence, Dr Smith said the plaintiff was seen again on 4 June 2004, when he noted that she considered she had RSI and not epicondylitis.
58 After he told the plaintiff he would refer her to a rheumatologist, and the plaintiff said such a doctor would say what he, Dr Smith, wanted him to say, the doctor said he gave her a list of rheumatologists and the plaintiff chose Dr Baskaranathan, to whom she was then referred.
59 Dr Smith said he did not see the plaintiff again.
60 During an earlier visit, in December 2003, Dr Smith said the plaintiff had stated that she suffered from rheumatism at age 24 years, and complained of pain behind both knees and in the left upper limb, tests then being done but with a negative result, something denied by the plaintiff.
61 Dr Allan Skirving has been an orthopaedic surgeon for about 30 years, is professor of clinical orthopaedics at Royal Perth Hospital (RPH), and said he saw the plaintiff twice, the first occasion being on 11 June 2004, or two days prior to the motor vehicle accident, in relation to her work place symptoms.
62 The doctor reported in the following month that the plaintiff had complained of worsening symptoms, despite having stopped work, with
"… pain emanating from the wrist and fingers up to her right elbow and right shoulder. She describes a complete loss of strength in her right arm. She also has some pain in the left
(Page 9)
- limb but to a lesser extent. She has great difficulty using her right arm for anything strenuous. She cannot twist taps. She says that pain is present most of the time, wakes her at night. She describes no true neurological symptoms. She took anti-inflammatory in the form of Voltaren initially. This medication helped a little but then she developed an allergic reaction and had to stop. She describes full movement in her elbow, shoulder and hand. There is no swelling of the joints and no paraesthesia or loss of sensation. She takes occasional Nurofen. She sought Bowen Therapy and a cream from a therapist which has also helped.
Her symptoms are affecting all her activities and she has been unable to do her gardening. She is unable to ride a bike."
63 The plaintiff was then suffering from a non-specific occupational overuse syndrome, and it was "highly unlikely" she would improve further, the doctor stated, the nature of the condition apparently being one which did not respond to rest or avoidance of the relevant activity, and in his experience in such cases patients did not respond to conventional treatment, although he believed the plaintiff did then have a work capacity.
64 Diagnosis by the general practitioner of a possible lateral epicondylitis and tensoynovitis of the wrist were, Dr Skirving said, based on his own findings, things which had either almost completely resolved or were very minor.
65 Dr Skirving said he next saw the plaintiff in November 2004, in relation to the motor vehicle accident, and then reported that she had new symptoms of left foot pain, neck pain and stiffness associated with headaches, but "although there was some aggravation of her pre-existing arm pain, she is clear that the accident did not cause any further injury to her previous problem".
66 The consultation was terminated prematurely, the doctor said, after a remark by the plaintiff.
67 The doctor also noted that the plaintiff had had a number of investigations performed since his initial review, including an MRI scan of the left wrist and thumb and a similar scan on the right, stating, in relation to those and other investigations, that "all the changes are commensurate with a patient of this age and do not correlate with clinical symptomatology".
(Page 10)
68 Dr Michael Oehlers is a general practitioner, and said he saw the plaintiff for her work related symptoms, and in relation to the motor vehicle accident, on 14 June 2004.
69 In regard to the former, he said the plaintiff complained of the onset of pain over the left side of the neck and shoulder, with transfer to the right forearm, elbow and wrist and a recurrence of pain in the left forearm.
70 As to the motor vehicle accident, the plaintiff complained of soreness of the neck, headaches, lower lumbo-sacral pain and pain over the left ankle, the doctor said, and his findings were compatible with a neck and lumbo-sacral spinal injury.
71 In an initial report the doctor also referred to complaints of bilateral temporomandibular joint pain and pain over the lower aspect of the jaw, together with anxiety, and stated that the plaintiff had been referred for physiotherapy and given medication.
72 The plaintiff's work related symptoms at the initial review were such as would have permitted part-time work only, not exceeding 20 hours per week, Dr Oehlers said and he understood the plaintiff was in part-time employment at that time.
73 The plaintiff's work related symptoms had improved since then, the doctor said, and he felt there was a capacity to work of the dimensions described above, with some supervision as to activities, although he later agreed there would be a risk of recurrence, and that it would be work "of the lightest nature" which would exclude "any repetitive work, any office work, any keyboard work, computer work (or) typing …", and the plaintiff could cope with work in the form of telemarketing or the like.
74 Dr Oehlers said the plaintiff's motor vehicle accident symptoms had on the other hand "remained very resistant to all forms of treatment" and there had been very little improvement.
75 The plaintiff took a variety of medications, the doctor said, including analgesics, anti-inflammatory drugs, anti-depressants and hypnotics.
76 Dr Oehlers agreed he provided the plaintiff with a number of workers' compensation certificates in 2004, the first with effect from 14 June, which stated she was unfit for work, but which made no reference to the motor vehicle accident.
(Page 11)
77 He said he had considered the accident had aggravated the work related symptoms.
78 Dr Baskaranathan has been a consultant physician in rheumatology since 1975, and said he first saw the plaintiff on 18 June 2004, five days after the accident, again on 16 July 2004, and in August and September.
79 In regard to the work related symptoms the doctor said the plaintiff told him that in January 2002 she developed pain on the left side of the neck, left shoulder and left elbow, which radiated down the arm to the left wrist, but following work changes, and improvement on the left side, she developed pain in the right wrist which radiated into the wrist and fingers.
80 In a report following his second consultation, Dr Baskaranathan said his clinical examination of the plaintiff on that day assisted him to arrive at a "working diagnosis of widespread soft tissue injuries of musculo-ligamentous nature involving her upper torso", with her elbow, wrist and hand symptoms being aggravated by the motor vehicle accident.
81 The doctor said he arranged for an MRI of the plaintiff's wrist and that revealed
"… evidence of moderate effusion in the distal radio-ulnar joint and adjacent radio-carpal joint, tear of the radial attachment of the triangular fibrocartilage, cartilage thinning, early degenerative change between the proximal pole of the capitate and lunate in the left wrist, a small area of cystic resorption and cartilage thinning between the lunate and capitate in the right wrist."
82 As a result the doctor reported to Dr Oehlers that the plaintiff ought be referred to an orthopaedic surgeon with a special interest in wrist and elbow problems.
83 Dr Baskaranathan said tenderness in the wrist had emerged during his August review of the plaintiff, when she had been "exquisitely tender" in the wrists, which he thought at the time was totally out of proportion to her presentation, but then thought on receipt of the MRI had been justifiable in that light.
84 The view expressed by Mr Robinson that there was inflammation of a common flexor origin in both elbows was wrong, the doctor said, that being golfer's elbow, and the plaintiff's problem was lateral epicondylitis, or tennis elbow.
(Page 12)
85 As to exacerbation of the plaintiff's condition, Dr Baskaranathan said that organisation of the ergonomics of a work place minimise work related aggravation, but the plaintiff would be able to injure herself in other ways, including doing domestic chores.
86 Dr Hamid Hamzah, a consultant in anaesthesia and pain management since 1979, said he saw the plaintiff in August 2005, on referral from Dr Oehlers, and in a report at that time said he agreed she had suffered "some whiplash injuries to her neck and back", and that he had given her some exercises, to be done prior to review in three weeks, and Clonazepam.
87 The doctor said that in the event he did not see the plaintiff again until July 2006, when he reported that the plaintiff had not continued with the prescribed medication, and complained of left shoulder and arm pain, pain at the base of the neck and upper thoracic spine, left sided head and ear pain, headaches and left ankle pain.
88 The doctor said examination of the cervical and thoracic spine was no different to his first review, and the plaintiff did not appear to have greatly improved, so that he thought she would not be able to return to work as she had "chronic pain associated with depression which is under control with medications".
89 The amount of pain complained of by the plaintiff was a "little bit more" than he would have expected, Dr Hamzah said in evidence, due he thought to the plaintiff's depression and once that was under control her symptoms would improve.
90 As to the plaintiffs work related symptoms, the doctor said the plaintiff did not appear to have a great deal of symptoms.
91 Mr Tony Robinson is an orthopaedic surgeon and said he saw the plaintiff for her general practitioner in December 2004, when he reported that she complained of pain in the neck on both sides, associated with headaches, low back, left ankle, and both shoulders, worse on the left, none of those things being present prior to the accident.
92 The plaintiff had facet joint inflammation on the left side at L5/S1, and probably at C6/C7, the doctor reported at that time, with impingement syndrome of both shoulders, particularly the left, and a sprain of the "co-lateral ligament" of the left ankle.
(Page 13)
93 The doctor said he saw the plaintiff again in July 2005, or her solicitors, when he reported that in addition to her other symptoms she complained the accident had made pre-existing pain in both wrists and both elbows worse by 50-60 per cent, and when he found she had epicondylitis and ulna nerve neuritis of the elbows.
94 He said that at that time he anticipated the plaintiff's condition would remain the same in the foreseeable future.
95 The plaintiff also had left carpal tunnel syndrome, on clinical assessment, the doctor said, that ought be assessed by a hand surgeon.
96 After further medico-legal review in July 2006, Mr Robinson reported that the plaintiff had soft tissue inflammation of the cervical spine and the lumbar spine, synovitis of the left ankle joint, impingement syndrome of the shoulders, tennis elbow on both sides, and inflammation from chondral damage of the left wrist.
97 The plaintiff would be fit to carry out office work, the doctor said, provided she could change position regularly, not carry out any heavy or repetitive lifting, and on a part-time basis, for about four hours per day, with a gradual increase in hours.
98 In evidence Mr Robinson agreed he saw the plaintiff earlier in relation to her worker's compensation claim and in a report in September 2004 had disclosed a diagnosis of possible bilateral carpal tunnel syndrome.
99 He said the plaintiff had not disclosed any pre-accident neck or shoulder problems.
100 In December 2004, when he prepared another worker's compensation report, Mr Robinson agreed he had believed the plaintiff to be unfit for work as a result of her elbow and wrist symptoms, which he had attributed to "stress put on the elbows and wrist whilst at work over a 3-4 year period".
101 The plaintiff had improved functionally since then, he said, although on being told she had attended on only one day in relation to what he understood to be a proposed return to part-time work, the doctor said that probably changed his view of her capacity and he would need to re-examine her.
(Page 14)
102 For the plaintiff's wrist and elbow condition to be worsened by the accident, there would have had to have been contact with the vehicle, he said, although a seatbelt could cause shoulder soreness.
Psychiatrist/psychologist evidence
103 Ms Joan Schutze is a psychologist who said she saw the plaintiff for the purpose of counselling between 29 July 2004 and May 2005, following which latter time the plaintiff cancelled a number of appointments so that she terminated the relationship.
104 Ms Schutze reported to the plaintiff's solicitors on 13 September 2004 in relation to the motor vehicle accident, in terms which stated that the plaintiff had symptoms which met "the DSM-IV diagnostic criteria for Post-Traumatic Disorder", at a level unchanged since the first consultation, despite treatment, and sufficient to prevent the plaintiff working.
105 In a second report of the same date, which was said to relate to the work related symptoms, Ms Schutze stated the plaintiff had symptoms which met the same criteria for a "Major Depressive Episode", again unchanged despite treatment, and again such as to prevent the plaintiff working.
106 In May 2005 Ms Schutze reported the plaintiff's post-traumatic stress disorder had gone, although she presented with symptoms of "Chronic Adjustment Disorder with Anxiety" which would then prevent her working, although she should be able to return to her previous level of psychological functioning within the next few months.
107 In evidence however Ms Schutze said that the adjustment disorder, which replaced the post-traumatic stress disorder by the end of 2004, was not incapacitating.
108 Ms Nirada van der Burg, also a psychologist, began to see the plaintiff in May 2005, whilst Ms Schutze was on leave, and continues so to do, the plaintiff in November 2006 having been seen by her on 31 occasions.
109 In April 2006 she had suggested to the plaintiff's solicitors that the plaintiff see a psychiatrist to have her anti-depressant medication monitored, she said.
(Page 15)
110 Ms van der Burg said the plaintiff originally presented with complaints of depression and anxiety, and it became apparent she also had some post-traumatic stress symptoms.
111 Dr Frederick Ng, a psychiatrist, saw the plaintiff for her solicitors in July 2005, and reported in the same month that the plaintiff, "who lived alone and was happy in her circumstance", and who denied a previous psychiatric history, described her pre-morbid history as
"full of beans, bubbly, very helpful, always had a smile on my face, active (cycling, walking, hiking, rock climbing, outdoor person). Indications from what she said was that she was organised, perfectionistic, even tempered, sociable, not a worrier. Her self esteem and self confidence were unproblematic in her premorbid state."
112 The doctor further said:
"Based on the history elicited, the mental status examination and having perused the copies of the many reports you have sent me, I am of the opinion that this woman suffered from a partially treated post traumatic stress disorder (PTSD) which had been moderately severe and which had improved with psychotherapy and antidepressant medication (DSM IV TR). There were associated depressive symptoms and panic attacks with agoraphobic tendencies.
If seen in cross section it would be relatively easy to call this condition an adjustment disorder as the condition had improved somewhat. However for a valid psychiatric assessment one must consider the history of presenting complaint of this woman and thus give credit to the longitudinal progression of the psychiatric symptoms over time. When taking this into account, this woman did have a psychiatric condition which did satisfy the diagnosis of PTSD with depressive and panic symptoms and which had improved. Calling this condition an adjustment disorder on cross-sectional assessment totally ignores the longitudinal perspective of this woman's psychiatric symptoms as it progressed over time.
…
Given that this woman did not have a previous personal psychiatric history, given that she did not have a family
(Page 16)
- psychiatric history, given the physically and emotionally traumatic nature of the motor vehicle accident on 13 June 2004, I am of the opinion that the motor vehicle precipitated the onset of her psychiatric condition.
She may have been somewhat predisposed to the onset of the psychiatric condition given that she was under some stress from her elbow and wrist symptoms prior to the accident. However I do not believe that she suffered from a psychiatric condition prior to the motor vehicle accident.
Her psychiatric condition was perpetuated by constant reminders (and stress) of the accident with her ongoing physical problems and physical functional restrictions and the anxiety which she experienced in various scenarios including in a motor vehicles." (sic)
113 The plaintiff required ongoing treatment with antidepressant medication, he said, as well as psychotherapy.
114 Dr Ng said that from a psychiatric perspective, the plaintiff was then totally unfit for paid employment.
115 The plaintiff was seen again by Dr Ng in July 2006, he reported at that time, when she said she had experienced "a suspected acute myocardial infarction a few months ago", as well as shingles.
116 The doctor expressed the opinion that the plaintiff had improved, although her PTSD with significant depression was not in total remission, he said, and she also had residual symptoms of anxiety, particularly, but not only, when travelling in a motor vehicle.
117 The plaintiff should remain on medication for at least 2-3 years, if not longer, the doctor said, and also required at least a further 12-24 psychotherapy sessions.
118 Given such treatment, and the further passage of time, the plaintiff should continue to improve, he said, although if she had "problematic physical symptoms leading to physical functional restrictions", the stress associated with such would cause her to be left with "some degree of residual psychiatric symptomatology" and she would in any event be likely to retain some degree of residual anxiety in motor vehicles.
(Page 17)
119 Finally, Dr Ng stated:
"Purely from the psychiatric perspective, totally excluding that she has any physical symptoms whatsoever, and only considering the psychiatric diagnosis, it is my opinion that this woman is currently fit for employment from the psychiatric perspective amounting to between 10-15 hours a week.
It must be noted that her efficiency in any employment would be compromised from the psychiatric perspective to some extent, given that she continues to report ongoing low energy levels which are improving, sleep disturbance, some degree of social withdrawal, some difficulties with concentration and memory, some degree of irritability and anger, feeling somewhat down and depressed even though improved, all of which would diminish her ability to persist at her tasks and diminish her quality of work."
120 In evidence the doctor said the plaintiff denied a previous psychiatric history, and the past visits to a psychologist recounted by her in evidence would be "imminently relevant" in giving him a better understanding of any pre-disposing factors to the development of the psychiatric condition observed by him.
121 Similarly he said difficulties encountered by the plaintiff in employment at the Nurses Board may also have "pre-disposed her by virtue of the stress they would have caused prior to the accident".
122 Post-traumatic stress disorder was however, Dr Ng said, an "anxiety symptom specific to a traumatic incident such as a car accident and its symptoms were not usually pre-disposed to by history of depression".
123 Further, the plaintiff had categorically denied significant depressive symptoms prior to the accident, he said.
124 If the plaintiff had a major depressive disorder when seen by Dr McCarthy four months after his initial review, Dr Ng said the plaintiff may have deepened in her depression for a number of reasons, including any pre-disposing factors.
125 Dr Peter McCarthy, a psychiatrist, saw the plaintiff for the defendant.
126 The doctor said he saw the plaintiff twice within the space of six days, the first occasion being on 25 November 2005.
(Page 18)
127 Despite direct questioning the plaintiff denied any previous psychiatric intervention, he said, and also claimed all her psychological symptoms arose from the accident.
128 In a report bearing the same date, Dr McCarthy expressed the view that at the time of the accident the plaintiff suffered an acute stress reaction, that it was probable she suffered from a post-traumatic stress disorder for a period, although she no longer had symptoms of that, and that at the time of review she suffered from a major depressive disorder of moderate severity which was then in partial remission.
129 The latter was in part due to the accident, the doctor said, and her prognosis for recovery from that portion of it was good.
130 Other factors, and in particular the plaintiff's social isolation, loss of employment, position in life and shift of a daughter and grandson to Queensland were the predominant causes of her then current mood, the doctor said, and it was "highly likely" she had expressed depressed and anxious feelings in the past.
Dental evidence
131 The plaintiff was seen by Dr David McNamara, a prosthodontist, in August 2004, for her jaw symptoms, and he reported she then complained of pain in mandibular movement and on palpation of the masticatory muscle and temporomandibular joint (TMJ) pain.
132 An MRI revealed "fibrous metaplasia of the TMJ bilamina zone of the disc which was the painful joint and this radiates".
133 It was probable the plaintiff's accident caused the injury, Dr McNamara said.
134 Treatment included insertion of a "TMJ inter-occlusal stabilisation prosthesis", ultrasound to the masticatory muscles, and "IR mid-laser to the TMJ's", adjustment of the prosthesis and supportive management.
135 He said the plaintiff had responded to treatment, and although "she's got a bit of residual discomfort … that is mainly all related to the neck and other symptoms".
136 The prognosis was good, Dr McNamara said.
(Page 19)
Other medico-legal evidence
137 Mr Peter Watson, a neurosurgeon, saw the plaintiff for her solicitors on 19 August 2004, and reported that day that he considered she had sustained soft tissue and ligamentus injuries to the cervical spine and to a lesser extent the lumbar spine in the motor vehicle accident, with symptoms of neck pain, occipital headache, pain radiating to the left shoulder and into the inter-scapula area, and left sided lower back pain.
138 The plaintiff also had pre-existing symptoms involving both upper limbs in relation to her workers compensation claim, he said, and the question of her ability to work was complex, although he considered she was not then able to work, and it was necessary for there to be a further six months of treatment to see "which will be the longstanding problem, the work symptoms or the motor vehicle accident injury".
139 Mr Watson saw the plaintiff again in July 2006 and reported there had been improvement in her symptoms, although she did have "ongoing symptoms of note", and there would be gradual improvement in the future, over a number of years.
140 The plaintiff's ability to work, in relation to the motor vehicle accident, was difficult to ascertain, the doctor said, but it was:
"… difficult to visualise her with the compounded symptoms of both workers compensation and motor vehicle accident returning effectively to the workforce."
141 The doctor further said that "optimistically" the plaintiff might be able to do 10 hours work in a secretarial or sedentary occupation in the future.
142 In evidence he said that meant 10 hours work from about five years post-accident to see how the plaintiff went.
143 At that point the plaintiff's symptoms would be as good as they would get, Mr Watson said.
144 Dr John Rosenthal practices in the area of rehabilitation medicine, and said that he saw the plaintiff in November 2004.
145 His assessment of the plaintiff was that she had sustained a cervical strain injury of moderate severity, he said, and there "may also have been" a mild degree of low lumbar soft tissue strain.
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146 The cervical injury would not lead to long term incapacity, he said, and "any degree" of permanent disability would be of a low order, so that absent work place symptoms she was fit for her "normal job".
147 The plaintiff presented with an active lateral epicondylitis on each side, Dr Rosenthal said, which he thought interfered with her work capacity, together with stress.
148 Ergonomics would have little to do with the pathology and the pathophysiology of that condition, the doctor said, and it was active inflammation which caused the pain.
149 Mr Robert McWilliam, a consultant orthopaedic surgeon, saw the plaintiff for the defendant in January 2005 and in a subsequent report stated that the plaintiff said that she had been disappointed in March 2004, when Dr Smith did not consider her medically unfit as a result of work injury.
150 The plaintiff's complaints of pain included the following, he said:
"1. She is experiencing a constant throbbing pain in both wrists, worse in the right than the left. She obtains some relief from using wrist braces. She also gains relief from analgesic medication.
2. She also is experiencing neck pain, which extends up into the back of her head and over the top of her head into the frontal area. Her neck pain is present continuously, although she obtains some partial relief from acupuncture and physiotherapy.
3. She continues to experience pain in both elbows but much worse in the right than the left.
There has been no improvement in her elbow symptoms between April, when she ceased work and June, when she was involved in the motor vehicle accident. She feels her elbow symptoms are worse since the motor vehicle accident."
151 On examination the plaintiff was unable to straighten her right elbow, the doctor reported, something he said in evidence caused him to terminate the examination, and which he found strange, as a person with a tennis elbow would not normally have any restriction of elbow movement, that being "extra-articular".
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152 Mr McWilliam also stated that the plaintiff was unable to lift her arms above 120 degrees on either side without experiencing low back pain and then severe shoulder pain.
153 After noting, inter alia, that the plaintiff said she first noticed predominantly bilateral elbow and wrist pain in January 2002, the doctor said he did "not attribute her ongoing and progressive elbow and wrist symptoms to her work and … (noted) that ceasing work in April 2004 had not resulted in improvement of her symptoms".
154 The injury sustained in the motor vehicle accident by the plaintiff appeared to have been, Mr McWilliam said, a "soft tissue injury involving her neck and back and both temporomandibular joints, primarily the left side …", and he expected there would be a gradual improvement over the following 12 months. Her then existing level of symptoms would preclude her from obtaining employment of any kind at that time, he said.
155 In a supplementary report Mr McWilliam stated that it was probable that the plaintiff had "lateral epicondylitis of both elbows and degenerative changes in the joints of both wrists", neither of which was clearly related to either the motor vehicle accident or any work related injury.
156 He said that he did not consider the plaintiff was incapacitated for work prior to the accident.
157 In evidence the doctor said he thought there were many reasons the plaintiff was not then working, two being her age and "her rather frequent different jobs", but that:
"I accept her statement. I was not doubting her statement but I believe there was room for some somatisation of her symptoms. There were many symptoms that she was explaining of quite severe severity and not a lot to support it in the examination that I was able to do so it is quite possible that the symptoms she was complaining of were not as physically incapacitating as it might seem."
158 The plaintiff's symptoms for the motor vehicle accident were "probably more than one would expect" from it, he said, and in regard to most people who had experienced such an accident, "you would not expect them not to be able to work", he said.
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159 Dr John Ker is a consultant physician in rehabilitation medicine, and head of department in the spinal unit at RPH, and said he saw the plaintiff twice, on the first occasion in July 2005.
160 In a report as to that, apparently issued in October 2005, the doctor said the plaintiff
" … reported neck stiffness, neck pain and intermittent headache. She reported the radiation of pain into her shoulders, more prominently so on the left than the right. She described residual pain, stiffness and weakness of grip in both upper limbs – a circumstance antedating your client's incident of injury of 18 June 2004.
Mrs Foster also reported the presence of central low back pain and of pain in her left ankle. Additionally, since that incident of injury, she has had feelings of anxiety which appear to be responding to treatment and she has also had temporo-mandibular joint pain for which she continues to utilise an occlusal splint."
161 The cause of the plaintiff's headache and neck and shoulder pain was, the doctor said "essentially an acute strain injury" brought about by the motor vehicle accident, and that had also caused strain to the plaintiff's lower lumbar spine where there was "some pre-existing joint arthropathy", and also to her left ankle.
162 Although he said he was hopeful that the plaintiff's cervical symptoms and headache would further settle, and pointed out the absence of "substantive pathology", Dr Ker stated that he had more concern about the lumbar spine, given the degeneration there.
163 The doctor said that "whilst clearly prior to this incident of injury (the plaintiff) was not functioning in a competitive manner with respect to undertaking work", it was his view that the neck and low back symptoms, headache and feelings of anxiety, had further decreased the plaintiff's "likely competitive ability to work again".
164 Dr Ker said that he next saw the plaintiff in August 2006, and in the following month reported that he had found "little evidence to suggest that she had made a physical improvement in the 12 months since I previously saw her … ", whilst "her reports of altered mood had … become more prominent and disturbing to her".
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165 Given the continued presence of the symptoms the doctor said he was "a little less optimistic as to the resolution".
166 Dr Ker also said that there would need to be a substantial improvement in the plaintiff's level of symptoms for her to return to work, and he thought the likelihood of that was "becoming more remote".
167 In evidence the doctor said he had been able to distinguish the plaintiff's motor vehicle accident symptoms from the bilateral upper limb symptoms she said she had experienced prior to that, which he had also examined, and was reluctant to categorise as epicondylitis.
168 The plaintiff did indicate she still had diffuse upper limb symptoms, which were particularly focused in her wrists and left shoulder, he said.
169 In cross-examination Dr Ker agreed that if the plaintiff had complained of neck pain prior to the accident then such had aggravated that, and in the absence of detailed information he was not able to definitively comment on the extent of the aggravation.
170 The plaintiff's left shoulder pain was related to soft tissue injury of the neck, he said.
171 Dr Jack Edelman is a rheumatologist and said he saw the plaintiff on two occasions in relation to the motor vehicle accident, the first in August 2005, when he reported that she attended wearing bilateral futuro wrist splints, and that she had a soft tissue injury relating to the motor vehicle accident which, "bearing in mind the chronicity of her workers compensation-like problem", may take a long time to improve.
172 When seen again in October 2005 the plaintiff said her arms had improved quite a lot because she was not doing much in the way of work, the doctor said.
173 The plaintiff had been on a disability pension since September, Dr Edelman stated, and he said that he suspected she would need a further six months off work and would then be fit enough to return to part-time clerical duties.
174 Dr Peter Connaughton is an occupational physician who saw the plaintiff for the defendants solicitors in September 2005, and reported in the following December that there were a number of issues affecting the plaintiff which reflected "a major adverse impact of the compensation
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- claim process", and which gave rise to a poor prognosis whilst the claim was unresolved.
175 The doctor further stated:
"It is difficult to establish a clear anatomical diagnosis only on the basis of her presentation. The extensive series of x-rays do not suggest any significant injury. There is however some uptake in the lower cervical/upper thoracic spine on the left. Based on the nature of the car crash and those findings on the bone scan, I can accept that she has sustained a soft tissue cervical strain affecting the left cervicothoracic region. That could also cause some symptoms in the shoulder girdles, on the left more than the right and some headaches. It would however be expected that symptoms would have very significantly improved at this stage, almost 18 months after the car crash. In my view the reported severity of symptoms is being adversely affected by the ongoing claim process.
In my view the symptoms in her hands, elbows and arms are unrelated to the car crash.
I can see no evidence of any significant or measurable injury to her lumbar spine nor to the left ankle or foot.
Although it is difficult to be certain, I suspect that she had some lateral epicondylitis related to her work activities. In my view it is most likely that her wrist symptoms are from age related degenerative change in the wrists rather than any specific injury.
I did not assess her psychological or psychiatric status."
176 In relation to the future, the doctor said:
"Regarding prognosis, in my view it is unlikely that improvement will be reported as that a return to work will occur until after the claim issues are resolved. Usually I would expect progressive improvement with conservative treatment and the passage of time. Some patients are left with a degree of residual neck symptoms."
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177 The plaintiff was not incapacitated for full-time work in a clerical or administrative role as a result of any residual effects of the accident, he said.
178 In evidence Dr Connaughton said there was good research evidence that claim processes had a "significant adverse effect on reported and actual disability levels" and on completion of the claim he would expect improvement in function.
179 The process of proving disability was a process of its own which contributed to disability, he said.
180 The plaintiff had revealed during the clinical examination what he considered to be abnormal pain behaviour, Dr Connaughton said, although he did not suggest she had engaged in any attempt at deception.
Findings
181 The plaintiff in the witness box appeared a person much affected by what has befallen her, at the least since the onset of her symptoms with Mercy.
182 That is perhaps understandable.
183 It nonetheless makes the present task more difficult.
184 The plaintiff appeared pre-occupied with her claim, and injuries, and with a very close interest in the latter and their treatment, apparently felt the need to stand from time to time, and was moved to tearfulness in the course of her evidence.
185 She gave the impression overall of someone with a significant psychological component at work in her condition.
186 Both psychiatrists, Dr Ng and Dr McCarthy, were of the view that the accident had precipitated a psychiatric condition, although they were not entirely ad idem as to its content, and both also considered the plaintiff had depression.
187 Again, there was some divergence as to its causes.
188 Dr Ng considered the depression was accident precipitated, and his answers in cross-examination did not affect the thrust of that opinion.
189 Dr McCarthy thought it was partly accident related, but also prayed in aid other factors.
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190 There would be a difficulty in relying on that last aspect of the doctor's evidence, as the factual basis of those asserted factors, apart from unemployment, was not explored with the plaintiff or otherwise elicited in evidence.
191 I accept the plaintiff's unemployment was one cause of her depression, but would otherwise rely on Dr Ng's opinion that the accident was the precipitating factor which brought it on.
192 In the circumstances I also accept Dr Ng's evidence as to the plaintiff's present economic capacity, when viewed from a psychiatric prospective, and would regard as a reasonable prognosis the views expressed by him as to the future.
193 In relation to the plaintiff's pre-accident physical condition, it is pertinent that after her redundancy the plaintiff attempted a return to work based on only three days work each week, but was unable to sustain even that, and was not working at the time of the accident.
194 The question of the nature and extent of any pre-accident incapacity is a complex one.
195 Dr Skirving is an experienced orthopaedic surgeon, and the only medical witness, apart from Dr Smith, who saw the plaintiff prior to the accident.
196 His views are therefore entitled to weight.
197 Those include a view that the plaintiff did not have any significant lateral epicondylitis and tenosynovitis, but nonetheless was not likely to improve.
198 That view as to the symptoms in her elbows and wrists was later shared by Dr Ker, another very experienced and senior doctor.
199 Although Mr McWilliam was of a contrary view in relation to that, he did not think there was any clear relation to either the plaintiff's employment or the accident, and also thought there was somatisation present.
200 Dr Hamzah did not think the plaintiff's work related symptoms were significant.
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201 Mr Watson thought more time was required to determine whether the work related symptoms would constitute a long term problem, and was of a similar view in relation to the accident symptoms.
202 Mr Robinson was of a different view, but I was not impressed with his evidence.
203 Dr Rosenthal also thought the plaintiff had bilateral epicondylitis.
204 Although Dr Connaughton suspected the plaintiff had that condition he considered it most likely her wrist symptoms were from age related degenerative change, not any specific injury.
205 Whatever the condition, and I think it is very difficult to make any specific finding, my impression of the plaintiff, her history, and the medical evidence including that as to Dr Skirving's pre-accident findings, lead me to the view that, but for the accident, it was still most unlikely that the plaintiff would have returned to full-time work of the kind previously done at Mercy, and that even with part-time work the plaintiff would have been likely to have had a chequered career.
206 Turning to the accident related injuries it is clear from the medical evidence that the plaintiff sustained a soft tissue injury to the neck, with involvement of the shoulders, an injury to the jaw, a lumbar strain, an injury to the left ankle, and the psychological and psychiatric injuries referred to.
207 The jaw injury has, I would find, now largely resolved, given Dr McNamara's evidence.
208 The medical evidence does not favour any proposition that the ankle injury is likely to be permanent.
209 The plaintiff in her presentation to doctors, and in her evidence, showed a tendency to downplay the symptoms attributable to her employment in favour of those said to be accident related.
210 Thus she said her right shoulder and wrist were worse prior to the accident than now, and made no reference to difficulties with the left shoulder prior to the accident, in fact denying she had attributed such to her employment when see by Dr Baskaranathan.
211 I would not regard that arrangement and description of symptoms as reliable.
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212 Further, left shoulder symptoms were present prior to the accident, and were work related.
213 The plaintiff's account of the accident was florid, but the cervical stain injury would appear to have been, as Dr Rosenthal described it, of moderate severity.
214 It is however clear, in my view, that the plaintiff's employment future is quite uncertain, and indeed it is, as Mr Watson put it, in reality difficult to visualise her making an effective return to the workforce with the symptoms of both her employment and the accident.
215 That doctor suggested the possibility of the plaintiff doing 10 hours per week, in five years time.
216 Dr Ker, having said there would need to be a substantial improvement in the plaintiff's symptoms for her to return to work, said the likelihood of that was becoming more remote.
217 There are other assessments and prognostications, as appears above.
218 The defendant tortfeasor must take her victim as she found her, and the effect of the accident has been to render the plaintiff presently unfit for work.
219 Given the uncertainty, all one can do is to look at what is reasonable and Mr Watson's suggestion seems as good as any in that regard.
220 I would regard the plaintiff as having been unfit from the time of the accident to the present, as a consequence thereof, given the psychiatric evidence referred to and the evidence as to her physical symptoms.
221 The plaintiff's symptoms and psychological outlook will be likely to improve following resolution of her claim, as Dr Connaughton suggested.
222 Any award as to either past loss of economic capacity or future loss of economic capacity must be adjusted to reflect the contingency, adverse to the plaintiff, that her employment would have been partial and interrupted in any event.
Damages
223 The heads of damage which have relevance and my findings in relation to the same are as follows.
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- · Non pecuniary loss
224 The plaintiff's damages under this head must be assessed pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C, and I would follow my understanding of the correct approach which I set out in Kandic v Kandic, unreported, DCt of WA, Library No 5208; 20 December 1996.
225 The present maximum allowance is $279,000.
226 I would assess the sum of $30,000 as being the appropriate proportion of the maximum amount.
227 The statute requires a sum of $14,000 to be deducted and that results in an allowance of $16,000.
· Special damages
228 I was informed that the sum of $1,325 had been agreed by the parties for this head, apart from travel expenses, and I allow that sum.
· Travelling expenses
229 The plaintiff put forward a detailed schedule seeking $1,120 and I allow that.
· Past loss of economic capacity
230 The plaintiff sought an award from 1 September 2004 on, and I will therefore proceed on that basis.
231 A schedule was provided, and it was not suggested the calculations in that were incorrect.
232 Extending the schedule to the date of this judgment, a total period of approximately 131 weeks has elapsed.
233 Utilisation of the net full-time wages figure of $531.60 then produces the sum of $69,640.
234 From that sum there ought be deduced 75 per cent to reflect contingencies adverse to the plaintiff in relation to the likelihood of her having employment over that period, absent the motor vehicle accident.
235 The sum produced is then $17,410 and I allow that.
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- · Past loss of superannuation
236 Again, on the basis claimed, and period extended, with the same deduction for contingencies, I allow $1,334.
· Future loss of economic capacity
237 Losses claimed to age 65 years, a period of approximately 11 years.
238 Based on the finding above, I would assess the claim on the basis of a total inability to work for the next five years, and then a 75 per cent incapacity for the balance of the period.
239 In addition to any reduction for the work related incapacity, the usual contingencies must also be allowed for: Black v Motor Vehicle Insurance Trust (1986) WAR 32, 34, and I would deduct 5 per cent for those.
240 So far as the work related incapacity is concerned, it would seem reasonable to operate on the basis that would ease commensurately with the overall incapacity, and thus not alter the overall position.
241 The assessment then produces a loss ($531.60 x 423.8 x 25 per cent x 95 per cent) of $53,507.
· Future loss of superannuation
242 The method of calculation is the same as the above, and the loss $4,100.
· Future medical expenses
243 The plaintiff does require further psychological/psychiatric assistance, in addition to a likely need for some future care and medication.
244 Only a general allowance is possible.
245 I allow $5,000.
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246 In summary:
Non pecuniary loss $16,000
Special damages $ 1,325
Travelling expenses $ 1,120
Past loss of economic capacity $17,410
Past superannuation $ 1,334
Future loss of economic capacity $53,507
Future loss of superannuation $ 4,100
Future medical expenses $ 5,000
256 The plaintiff is entitled to a judgment in the sum of $99,796, together with interest on past losses, and I will hear from the parties in relation to that.
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