Free v Brine No. DCCIV-99-74

FREE V BRINE
[2000] SADC 52

Judge D. Bright
Civil

At trial, the defendant admitted liability and the case proceeded as an assessment of damages.
On 2nd December 1994 the plaintiff was the driver of a car, stationary at traffic lights. She was alone. A car driven by the defendant collided with the rear of her car. The defendant gave no evidence. The plaintiff says she was, first, thrown forward, striking her forehead on the steering wheel and then back. She was sitting on a bench seat in an old car without head rests. She says she was precipitated back to such an extent that, as her head and neck bent back over the seat, she caught a glimpse of the defendant in his car.
She says that, prior to impact, she had seen the defendant’s car in her rear vision mirror and that it was approaching at a fast speed, a speed she could not estimate, but which was much faster than 20 kilometres per hour.
For reasons I will come to, I have reservations about the accuracy of the plaintiff’s recall of the collision and of other matters. However, as a starting point, I accept that there was an impact of sufficient violence to be capable of causing soft tissue injuries to her neck and spine.
The plaintiff is 33. She has three children. I do not need to record in detail the many problems she has faced in her life. It is clear that her childhood was marked by violence, abuse, alcoholism, constant travel and grossly interrupted schooling. As an adult, she has lived in at least two violent relationships. Members of her immediate family have died in tragic circumstances, or have been subject to depression and drug addiction. She has known little peace or security in her life. At various times she has abused alcohol and also some drugs.
Remarkably, in court she presented as an attractive, open, candid person. She appeared to be quick and alert, often trying to answer questions before they were complete. She clearly understood the drift of questioning. She appeared to be trying to be accurate, helpful and forthcoming. This seems to have been the consensus of the various medical practitioners who reported on her. She was also very tense.
Despite this, her evidence in court changed on various details and was, at times, inconsistent with what she had told doctors. There were inconsistencies in the histories taken by various doctors. It has not been suggested that she is simply a liar. Clearly she is not always accurate. Given the turmoil of her life, it is not surprising to me that she may be confused about many details. I can also understand a tendency to fasten on this accident as the cause for much that has happened since. I suspect a degree of conscious exaggeration, or misattribution, in this, but I accept that generally she believes what she has said.
Mr. Day, for the defence, in a helpful, moderate and careful address pointed to many inconsistencies. He urged me to be cautious and reminded me that the onus was on the plaintiff. He noted the paucity or absence of supporting evidence. His summary could not be and was not challenged to any great extent by Mr. Ward, for the plaintiff. Mr. Ward, not surprisingly, invited me to accept various matters, particularly relating to earning capacity, which Mr. Day submitted had not been proved. In the end, that seems to have been the main point in issue.
The plaintiff left school in either year 8, 9 or 10 - she has claimed each. Her peripatetic childhood took her to a great number of schools - she claimed more than a hundred. While I doubt that number, it is sufficient to infer that she can have achieved little more than basic numeracy and literacy.
She had some jobs of a relatively unskilled nature, such as taking tickets for rides at shows, domestic work and bar work in hotels and work in take away chicken shops. Her first child was born in 1984, when she was about 17. She now has two others. She was only able to give the vaguest particulars of when, where, and for how long she worked. She provided no taxation or other records.
I note the statutory declaration of Ms. Buchanan, who knew the plaintiff in Tasmania, and says that, before the accident, the plaintiff worked about fifty per cent of the time. I am not critical of the decision not to bring Ms. Buchanan to South Australia to give evidence, but, in the light of all the other evidence, I am cautious about too literal an acceptance of the fifty percent estimate. I am prepared to conclude that the plaintiff probably worked a few months each year before the accident. Some years she would have worked more, some less.
It is also hard to assess how well she was, or how well she was coping in, say, the few years prior to the accident. She left Tasmania following an assault by her partner. In Adelaide, she was assaulted by her brother, who is, apparently, unwell due to drugs and depression. This led to her being resident in a women’s shelter at the time of the accident. She says that she worked at that shelter, helping with cooking and cleaning. I do not think she was paid.
She says, and her son confirmed, that she then played normally with her children, including rough and tumble and ball games. She played indoor cricket. There is a report that she weighed 95 kilograms at that time - if so, she cannot have been very fit. Her present weight of 55 kilograms is obviously better for her. While acknowledging periods of drug and alcohol abuse in the past, she says she had those problems under control. She was not in any other paid employment at the time of the accident.
The best record of her treatment after the accident comes from the accounts for special damages. The accident was on 2nd December, 1994. That day she consulted a GP, Dr. McCaul, who gave a certificate confirming injury to back and neck. She recommended rest for three days and a return to normal over about a week. She prescribed Panadeine Forte for pain.
The plaintiff thought she had gone to Wingfield Hospital and been admitted as an in patient for some weeks. I am unaware of such a hospital and could find no reference to it, or anything like it, in the telephone book. The telephone book was not in evidence but I chose to look at it. In histories to other doctors she referred to both the QEH and to the FMC. Pre accident, she had had a laparotomy and, at one stage, claimed to need sutures removed. I think she was confused about this as she later said that the sutures were self absorbing. In the end, there is no evidence of hospital treatment arising out of this accident - nor does any item of the agreed special damages refer to a hospital. Dr. Blight referred to an X-ray taken at FMC on 18th January 1995, which was of no relevance to the accident. Perhaps the plaintiff recalls this occasion.
On the night after the accident, 3rd December, 1994, she was visited by a locum from whom she sought pain relief. She wanted pethidine. On 11th December, 1994, she was again visited by a locum, for the same purpose. There was some suspicion that she might be merely seeking narcotics for their own sake, but that is not established.
On 12th December, 1994, she consulted Dr. Christodoulou, a GP at Morphett Vale. She told me that she had moved to Morphett Vale and it must have been at about this time. Dr. Christodoulou records that she said she could not pick up her children and that they were playing up “pain main problem....neck brace....muscles tender”. He appears to have prescribed liniment and a neck brace. He saw her again on 20th December, 1994 “cramps legs; back sore...neck...getting worse...chest sore...tender cervical spine...sore knee...query dashboard”.
On 6th January 1995 there is a reference to her seeing Mrs Ward, physiotherapist and to a prescription for Digesic. The plaintiff does not appear to have returned to Dr. Christodoulou.
On 4th and 6th January 1995 she saw Mrs. Ward, who noted complaints of neck ache, backache and headache “pain sternum. L. temporal to frontal headache. Neck L and R....thoracic area to T8. Sleep poor. Pain tablets only help one hour....symptoms more sore. Had a lot of “shock”.....multiple areas of reported pain....” Mrs. Ward gave massage and advised rest. On 6th January 1995 she noted that the plaintiff was more relaxed, though sleeping badly. She was still using Panadeine Forte. On 6th January 1995 she had told Dr. Christodoulou that physiotherapy caused pain, after short term relief. The plaintiff did not keep her appointment for 9th January 1995 and did not return to Mrs. Ward.
On 12th, 13th and 17th January 1995 she attended Dr. Koukourou, a GP at Morphett Vale. I have no information from him (or her).
The plaintiff told me that, during January, she lived with other people at Morphett Vale. It was not really a suitable house. Others were using drugs and she was now abusing alcohol, hoping to ease pain and to try to sleep. She moved to a house at Mt. Gambier.
On 3rd February 1995 she consulted “Blue Lake Sports Medicine”. I have no information from there. Over the next year and a bit she saw various GPs in Mt. Gambier on a total of about a dozen occasions. During this period she says that she drank far too much. She used marijuana. She formed a relationship with Mr. Wanganeen. She says it failed, at least partly because she found intercourse painful because of low back pain. Mr. Wanganeen confirmed this. He said she spent a lot of time resting and he was surprised at how little work around the house she did. He confirms that they both drank too much.
By May 1996 she was in Tasmania and made five visits to GPs over about five months. In September 1996 she saw a GP in Queensland, but, later that month, was back in Tasmania and saw GPs on five occasions in four months.
On 7th April 1997 she consulted Dr. Duffield at Ingle Farm in S.A. and appears to have been in S.A. since then. She made sixteen visits to various GPs between then and 20th October 1998.
During most of this time she was drinking far too much and probably abusing marijuana and prescription drugs. She was sometimes seen by Mrs. Wizor, who is a sister of Mr. Wanganeen. Mrs. Wizor ran a program called “Aboriginal Home Care Program”, which provided assistance to aboriginal people unable to look after themselves. Mrs. Wizor confirmed that the plaintiff was not looking after herself. She appeared to be in pain. She offered the plaintiff work, assisting an aboriginal man. I rather infer that this was an attempt to help the plaintiff.
The plaintiff should have provided housekeeping duties as well as driving that man to the bank and shops. In fact, all she did was a bit of driving. However, that is significant because the plaintiff claims to have had a phobia about driving since the accident. Mrs. Wizor, who was a good witness, confirms that the plaintiff’s driving was very nervous and of a poor standard, with poor judgment - eg for parking. Mrs. Wizor said that the plaintiff “froze” when asked to drive. The plaintiff was obviously distressed in court when this topic was discussed.
The plaintiff told me that she had, and had had since the accident, headaches, pain in the neck and shoulders, pain in the upper spine between her shoulder blades, pain in her low back and pain in her left hip. Extensive X-rays, CAT scans, and ultra sounds were arranged by Dr. Blight. With one exception, they show no abnormality. Indeed, they appear to show a spine with no degeneration; not the sort of dodgy spine which is sometimes rendered painful by some small incident which leaves no visible trace.
The exception is that the ultra sound shows what may well be a tear in a muscle near the left iliac crest. Dr. Blight and Mr. Jose agree that a tear to that muscle is odd. They have never seen it happen in a car accident like this. Dr. Blight, nevertheless, believes it was caused by the accident. Mr. Jose does not. He says that it is of a type one would associate with the movement of kicking a football with the left leg - which is not a movement (or tension) he can associate with the accident. Moreover, he says, if there is a tear, it must be much more recent than the accident. Given the absence of recorded complaint about the hip until years after the accident, I prefer his view.
There is a similar lack of documentation for low back pain. The mechanism to cause it is rather speculative. The plaintiff says her seat was not damaged. I am not satisfied that there was a low back injury.
However, there is no reason to doubt the diagnosis of soft tissue injury to the upper back and neck, leading to pain in the shoulders and to headaches. While many such injuries resolve quickly, it is notorious that not all people get over them.
Here, where no organic injury can be objectively identified - and where one would expect soft tissue stretching, or even tearing, to get at least very much better - one tends to look to other mechanisms, principally psychogenic, to explain continuing pain. Dr. Kutlaca, psychiatrist, thought the plaintiff candid and honest, but, despite that, could not identify a psychiatric explanation. I accept his comment that, in the context of all the awful things that have happened to the plaintiff, the car accident would appear to be of minor significance. Given her resilience in the face of apparently far worse events, he could not explain such an adverse reaction to the subject incident.
Ms. D. Lawton, psychologist, has been a great success with the plaintiff. She has, over a number of sessions, taught her to relax and to “get control” of her pain. The plaintiff told me that, while the pain was much as it had been, she was now completely off alcohol and drugs and had been so for over a year. She was, through knowledge of how to manage her pain, fifty per cent better than before.
Ms. Lawton diagnosed an adjustment disorder. Dr. Kutlaca did not agree. I prefer her diagnosis, at least to the extent of accepting that there is a problem. To my mind, it sits more easily with my belief that the plaintiff is predominantly to be assessed as honest, rather than as deliberately malingering. The secondary gains that I could detect over the period since the accident do not seem enough to make the plaintiff want to adopt an invalid role. She has not actively pursued this litigation, in the sense that she has not documented her case in the way one sometimes sees where litigants are obsessed with litigation - quite the contrary. From remarks made by Mr. Ward I infer that a number of “last minute” inquiries have been necessary to get the case ready for trial. She did not stay to watch all the trial.
However, such a disorder could not be caused solely by the accident. The accident is only one of a great number of factors which have affected her. There are signs that she is getting better as she gets control of herself. If the condition continues for any significant period, one would think that the part played by the accident would become increasingly small.
I accept that there is a driving phobia, which is now well entrenched. Nevertheless, she does drive a bit. I think it more likely than not that, although the particular technique tried by Ms. Lawton so far has failed, other techniques have a good chance of improving the plaintiff’s lot. I have in mind a graduated program of driving teaching by a professional and sympathetic instructor, in conjunction with supervision by Ms. Lawton or, perhaps, a GP.
There have been recent changes in the plaintiff’s family life which, though easing her burden in some ways, are likely to have upset her. The youngest child is now residing with her father and the older son is now living with friends. He gave evidence and appeared mature beyond his years. His evidence was helpful in corroborating aspects of the plaintiff’s claim.
The plaintiff has embarked on a TAFE course in Chinese medicine and has passed two units. There are about four years to go. She finds this interesting and the knowledge that she is gaining is beneficial to her in controlling her own pain. She hopes she may eventually derive some income in this field, but, I think, is mainly doing the course for her own interest and self esteem. It is one of the more optimistic signs in her life. I have no basis on which to estimate what she might earn per hour/week, or how many hours/weeks per year she might work.
The claim for services rendered by her children has been abandoned.
On the Wrongs Act scale, I allow the number 9 for her non economic loss. The multiplier is agreed at $1,430, giving a monetary figure of $12,870.
Special damages incurred are agreed at $2,923.85, of which the defendant has already paid part. The outstanding special damages are agreed at $1,655.75.
For the future, the plaintiff is not now seeing doctors much, nor is she taking any medicine. I expect there will be odd occasions when a visit to a doctor, or to a physiotherapist, might still be attributable to the accident. I have suggested a course of de sensitisation to improve her driving. There will not be anything else of significance. I allow $500 for future special damages.
Since the accident, she has worked very little - as far as I know, only for a short time in Mrs. Wizor’s program. I assume that the plaintiff has been in receipt of social welfare assistance of various sorts virtually throughout her adult life. There is a limit to what she could earn without those payments being reduced and to what she could earn tax free. There was no great incentive to earn more than those fairly basic amounts. I am not prepared to assess on the basis that payments would not have been disclosed.
A lot of her time was spent looking after her children and, later, her mother. The accident was a factor in her subsequent abuse of alcohol, but not the only one. Drink must have impaired her capacity to work. She barely managed her home. She has been much better since she ceased drinking.
On virtually no evidence, the best guess I can make is that before the accident, she probably earned about $3,000 to $4,000 per year. I will allow $3,500 per annum for the period since 2nd December 1994. I think she has now regained sufficient self control to be able to work for about as much each year as she was working before the accident. In short, there may be a minor residual loss of earning capacity, but not one likely to be reflected in actual loss of earnings to any measurable extent. I shall allow a lump sum of $20,000 for past and future loss of earning capacity.
Summary
Pain and suffering $12,870.00
Outstanding special damages $1,655.75
Future special damages $500.00
Economic loss $20,000
TOTAL $35,025.75
I will hear the parties on interest and costs.

[2000] SADC 52

8 May 2000