Garde v Nitschke No. DCCIV-97-451 Judgment No. D24
[1999] SADC 24
•26 February 1999
GARDE v NITSCHKE
[1999] SADC 24
Judge Lowrie
Civil
The plaintiff, who is aged 38 years, alleges that she has suffered personal injuries and loss as a result of the defendant’s negligent driving at Churchill Road, Kilburn on 14 April, 1994. The plaintiff claims that she suffered a lower back injury which is now permanent and has substantially affected her personal and working life, and, consequently claims damages.
The defendant admitted her driving was negligent. The matter came on for hearing for the assessment of the plaintiff’s damage.
EVIDENCE
The plaintiff gave evidence as did her brother, who has been concerned and involved in her care over many years, Dr Asinari, her local practitioner, whose care she has been under since early 1983, Mr Carney, neurosurgeon, who operated on the plaintiff in June 1995 to correct a disc prolapse at the L4-5 level, Dr Wright, an occupational physician, and Dr Ann Thornton, a clinical psychologist.
The defendant called the surgeons who had examined the plaintiff for the WorkCover Corporation, Mr Humble, orthopaedic surgeon, and Mr McCulloch, neurosurgeon.
Apart from this, I have had reports from Miss Anne Morgan, a registered occupational therapist, and surgeons, Sir Dennis Patterson, and Mr Hillier.
ISSUES
The issue in this case is what effect, if any, was caused by the accident on the plaintiff’s spine which had been the subject of extensive thoracic surgery when she was aged 14. The plaintiff had received medical advice and assistance for back pain before the accident.
Consequently, the issue which caused debate was whether the plaintiff’s current permanent disabilities are causally related to the accident and, if so, as to what stage in her future life would her pre-existing and no doubt degenerative problems have become symptomatic.
PLAINTIFF’S EVIDENCE
The plaintiff is a sole supporting parent and has reared her son, Ryan, since his birth in 1982. Ryan attends Taperoo High School. The plaintiff attended the Largs Bay Primary School and then Port Adelaide Girls Technical High School, leaving school at about 16 when she completed year 10.
The plaintiff described how she encountered and suffered back problems when at high school and underwent a series of operations when she was about 13 or 14. She said:
“I was in plaster for the first, like for two weeks and they stretched me, and then they took that plaster off and put another lot on from the neck to the top of my legs, and stretched me again, and then I was taken out of that plaster and they did the first operation.”
The spine was fused with the insertion of what she called a “Harrington rod” and she was in a plaster shell for about five weeks. Subsequently, there was a further operation when the rod was removed and she was again placed in plaster which was eventually removed. She was then obliged to wear a back brace. The plaintiff said she did not attend school while she was in plaster because it was most uncomfortable to sit and thus continual sitting was impossible.
I accept her evidence that this ongoing problem was a major and contributing factor in her leaving school. No doubt her studies suffered because of the time away from school and the long recovery period.
The plaintiff said on leaving school she was immediately employed in a child care centre at Port Adelaide and worked there for about a year. She said her operation did give her some back and arm problems, but it did not prevent or restrict her from working. She then worked as a car detailer at Port Adelaide for about eight months and said it was quite strenuous work cleaning cars, engines as well as polishing vehicles and she was forced to adopt awkward positions. This was a job which involved considerable twisting and bending, but, she felt she could “bend all right” when she attended to this work. She then had a period of about twelve months as a factory hand, but did not really enjoy that type of work.
When she was about 20 years of age, she commenced working at the Rosewater Hotel and since that time has been involved in the hotel industry. At the Rosewater Hotel she worked in the front bar. She did not have any problems with the work and enjoyed it, eventually resigning because, “the old boss couldn’t keep his hands to himself”.
The plaintiff left Adelaide to live in Sydney and while there discovered she was pregnant. She returned to Adelaide and her son was born in 1982. She had known the father of her child for many years. However, that person has never contributed to the maintenance of Ryan and has had very little contact with him.
After her son commenced school in 1988, she started to look for permanent employment and agreed she did occasionally have back pain. Since this time she has been under the medical care of Dr Asinari. If at times she had backache and pain she would see Dr Asinari who would provide her with analgesic medication.
The plaintiff has had a number of illnesses over the years including a serious gall bladder problem and hysterectomy. The plaintiff has only one kidney and this has been of concern.
The plaintiff was involved in a motor vehicle accident on 16 June, 1990, which caused some trouble with her kidney, but, after medication and rest she recovered. The plaintiff could not remember whether she had any back trouble resulting from this accident and said she subsequently resumed her employment at the Birkenhead Tavern. She did not make a claim in regard to this accident.
The plaintiff’s main occupation over the years has been working in many hotels as a general bar attendant including periods as a hotel manager. This work in the main has been on a casual and full-time basis. She described that when she worked at the Birkenhead Tavern the work entailed cleaning up bar areas, removing crates, general bar work, cleaning and locking up the premises. The serving of customers involves lifting trays of glasses, washing the same, and, does involve much twisting, turning and bending. Indeed, if the keg needed changing, she would change it. She described initially they were:
“.... the real heavy kegs, the big round ones any way, and you have to drag it over, like get rid of the empty keg and drag it over, and then you had to tap it which isn’t like an easy job. You have to put a lot of pressure on the tap that goes down in it, and then run the hoses to it. It is easier now with the smaller kegs, but the older ones were really, really heavy.”
Apart from working at the Birkenhead Tavern she also worked at the Osborne Hotel and said altogether she was working almost a 40 hour week. In November 1990 she commenced work as the manager of the Colac Hotel at Port Adelaide which was a full-time job, carrying out that work until approximately May 1991 when the hotel changed hands. Managing the hotel required her to carry out the above strenuous tasks.
The plaintiff was then employed at the Somerset Hotel. At about this time Miss Garde was in a relationship and with her friend undertook hotel duties at the Pier Hotel, Milang. She described this work as very demanding, working up to 50 or 60 hours per week. The plaintiff said it was always her desire to manage her own hotel and no doubt she viewed this as a worthwhile venture. She carried out the heavy work in the same manner as she had undertaken at the Colac Hotel. Unfortunately she said her friend had an alcohol problem which led to violence and eventually the relationship terminated in a rather dramatic way in May 1992 and she returned to Adelaide.
On returning to Adelaide she lived at Birkenhead with her son and eventually found bar work at the Arkaba Hotel in May 1993, working about 15 hours per week.
In July 1993 she obtained similar work, but with more hours, at the Blair Athol Hotel. Her hours were in the vicinity of 28 to 30 a week. She described how her hours gradually increased. The plaintiff was on her way to this employment when the accident occurred in April 1994.
The plaintiff outlined the physically demanding work at the Blair Athol Hotel as follows:
“Q. Did you enjoy your work at the Blair Athol Hotel.
A. I loved it.
Q...... Just generally speaking, did you enjoy the bar work that you had done most of your life.
A. Yes.
Q...... If this accident hadn’t occurred, that is the one on 14 April 1994, did you see yourself remaining in the hotel trade.
A. Yes.”
The plaintiff said how she planned to gradually increase her work involvement so that she would be in a position to manage a hotel. She also mentioned that for “older” barmaids, with the introduction of pokies, it meant different types of employment were available rather than the physically strenuous work that barmaids were formerly obliged to undertake. She said:
“There are more jobs to go round, more things to do and it is another interesting thing to learn.”
The plaintiff was asked when reflecting on her back condition if there had been any major problems in her working life arising from the early fusion. She said she could remember once when she was at the beach with her sister in 1990 she encountered a type of seizure and sought help from Dr Asinari. However, she said between 1990 and 1994 she had never been off work because of any back problem. In the ten months or so at the Blair Athol Hotel she had never missed one day’s employment. She said if she had problems it occurred in her right side and indicated the nature of this pain. She said it was a niggling pain and she would take Voltaren and rest, but she had never been disabled from working. She said she had never had any physiotherapy treatment or chiropractic treatment for her back.
She described the accident as a four car pile-up. She was stationary. There were a number of cars stationary when a car from behind “cleaned the whole lot of us up”. Her car sustained damage to both the rear and the front and it was a write-off.
The plaintiff said immediately after the accident she was able to get out of the car but had pain in the back of her left leg between the knee and her bottom. She went the next day to see Dr Asinari who recommended physiotherapy treatment. Eventually she ceased that treatment as she said it seemed to make her back and leg pain worse.
She said following seeing Dr Asinari she was referred to Sir Dennis Patterson, the surgeon who undertook the plaintiff’s prior fusion surgery, and, also Mr Hillier, but then returned and received treatment from Dr Asinari.
She returned to work after the accident and they endeavoured to find light work for her. She was employed in the TAB and Keno area of the hotel, but found, even though casual work, this work involved twisting and turning and she suffered more pain and, if she took her medication, this tended to make her drowsy. The plaintiff had at least half an hour’s drive to return to her home from her employment. Her pain was in her left side going down the left lower back into her left leg and the back part of her knee. She said she felt that her pain problems were increasing. The plaintiff worked for some six weeks at the Blair Athol Hotel and has since received financial assistance from WorkCover.
The plaintiff said she was eventually referred to Mr Carney in February 1995 and then on his recommendation underwent an operation in June 1995. She did this in the hope it would relieve her ongoing and deteriorating problems with her back.
The plaintiff described that she has been seen by many medical persons, as one comes to expect with WorkCover injuries, and was, perhaps with some justification, a little concerned about this system and the attitude of some practitioners towards her.
Having said that, it has never been suggested by any person that the plaintiff was other than a genuine person in describing her problems.
After the operative care from Mr Carney she received care and assistance from her parents. She said, “they waited on me hand and foot”. She subsequently returned to her own home.
After the operation she eventually resumed her own household tasks, but felt that the operation did not in any way relieve her pain problems. She returned to see Mr Carney and he referred her to the Memorial Hospital Pain Clinic where she attended as an out-patient. She attended this clinic for approximately three months and her care was supervised by Dr Wright. During this time she continued to see Dr Asinari.
The plaintiff said after the operation she mentally felt “horrible” and continued to see Dr Thornton on a regular basis. Dr Thornton was of assistance to her including providing anti-depressant medication and, as well, she received assistance from Dr Helen Tingay, a psychologist. Clearly the plaintiff had become depressed with her ongoing and what I find to be permanent back problems. Dr Asinari referred her to Dr Tingay for assistance in 1994. No doubt the plaintiff’s lack of work was playing a major part in her mental problems. The plaintiff had previously stressed that her work was also her social life. One can appreciate this, bearing in mind the duties of a single parent.
The plaintiff accepted Mr Carney’s views that her problems were permanent and it was unlikely that she would ever work again. She said since 1996 her back problems seem to be getting slowly worse. She has much pain across her back she believes in the area of the L4-5 disc. She said she has continual daily pain in her left leg radiating to her buttock and this causes her to limp and she cannot walk for an extended period. Daily tasks of walking and shopping, tasks that she formerly carried out without any restriction, are now difficult. Simple tasks around the home like attending to her home and cleaning it as well as gardening cause her major difficulties because, as she explained, she cannot bend even to dig a flower bed.
She said that from counselling with Dr Thornton she is learning to adjust her life to cope with her ongoing disabilities. She continually takes medication to assist with her ongoing problems, mainly taking drugs like Mersyndol, Mersyndol Forte, and Capadex, depending in which area she is having pain as to the medication.
The plaintiff’s brother, John Garde, was called. He is slightly younger than his sister. Mr Garde is a police officer and has been very much involved with his sister’s welfare both before and following the accident.
He described her before the accident as a “bubbly” type of girl who totally enjoyed her work at the hotel and the atmosphere that work generated. She was very much at home in this type of employment. He viewed her as having no problems with coping with that work and as far as he was aware there was never any trouble with her work as a result of her prior back surgery. She never complained to him about having any back problems while working.
He was aware that when she was working she had very little, if any, time away from her employment. He said, as is apparent, the rearing of a teenage son is a difficult role and employment was very much her social life. He viewed her as always keen to get to work and it was apparent to him it was an essential part of her life.
Mr Garde was aware of her work venture at Milang and its problems. He was aware of the break-up of the relationship and said she was very disappointed as it had been her vision to run a hotel but added it is difficult for a female to run a hotel which is ideally suited to a couple.
He said she has always been a fastidious person and reflected the values of their mother, not only in her own home, and the rearing of her son, but also in her employment.
He said she was very self-dependent prior to 1994.
However, he said since the 1994 accident he has observed her health “declining gradually over a period of time to now what it is at the moment” and further that her permanent problems are apparent.
He said she has reached a stage now where she is certainly not the confident person that she was. He has noticed the physical change. She has put on considerable weight and obviously is very frustrated in her inability to resume her work and prior life. He said his sister complains to him regularly about her back and pain problems whereas before he had never heard any pain complaints.
Mr Garde was aware of the plaintiff’s surgery and attended her in hospital. He was also involved in her care when she returned home, living with her for some months rendering assistance in and about her house. He knew about the frustration that she found in not being able to carry out day to day activities. He was also close to Ryan and has had a fair amount of involvement in his upbringing.
Since the accident he has seen her crying not only due he felt to her ongoing health problems, but also as a result of her frustration with the WorkCover system. He said she has not coped very well in this time.
SUMMARY : ASSESSMENT OF PLAINTIFF’S EVIDENCE
The plaintiff gave her evidence in a very genuine simple but direct manner and her brother, John, in a similar vein. I accept her evidence and that of her brother without any reservations. Over the years, the two main factors in her life have been her son and her work. Her work was essential for maintaining her home and importantly her sole social focus. The plaintiff readily admitted that she had back pain complaints over the years and sought assistance from Dr Asinari. However, that back problem did not cause her any difficulty in her manually and physically stressful employment. That is apparent from the summary of her duties at the Colac Hotel in the 1991 period, and subsequently the Milang Hotel in the 1992 period and then the period of ten months at the Blair Athol Hotel where she did not miss a day’s employment.
Clearly the plaintiff had to expect some deterioration in her spinal area in her advancing years, but this problem was in no way evident in 1994. However, since the accident her back problems and pain have become symptomatic. Unfortunately the further surgery was not successful and she has reached a stage in her life where her disabilities are substantial and permanent.
MEDICAL EVIDENCE
Dr Asinari has been a general practitioner for many years. He has cared for the plaintiff since 1983. He has written many reports about the plaintiff’s condition particularly the effect of the accident on her pre-existing problems.
Dr Asinari spoke to his written reports and produced practice notes. He mentioned the occasions over the years when the plaintiff has attended him complaining of back problems. What is apparent from the notes is that in that fifteen year period prior to the accident the attendances concerning back pain were most spasmodic and had been treated with analgesics or anti-inflammatory medication. Those records show approximately fifteen or so attendances including the 1990 accident. There were often yearly gaps in attendances and none between 1980 and 1986. The plaintiff obviously had serious gynaecological problems in 1993 with some seven attendances.
Dr Asinari mentioned that in 1980 his predecessor, Dr Bognar, arranged for x-rays which revealed some scoliosis and degenerative changes particularly in the area of the prior fusion. In September 1987, the plaintiff attended him with some lower back pain which he treated with anti-inflammatory tablets. The next occasion of back pain was in January 1989. In February 1990 she attended with some lower back stiffness and he was aware that in June 1990 she was involved in a road accident which affected the right side of her abdomen and twisted her back. There were traces of blood in her urine and he thought she may have bruised her kidney, but this problem resolved.
He saw her between June and September 1990 on four occasions, but there was no mention of back problems. In September 1990 it was noted there was an attendance on him when she reported a burning pain in her back. He mentioned that on most of these occasions the pain was right-sided pain but on this occasion it was left-sided with no neurological signs. In March 1991 she attended with some back pain and again was prescribed anti-inflammatory tablets, and similarly in August and November 1991. At the time Dr Asinari arranged for a further x-ray which again showed some degenerative changes in the scoliation. In January 1993 there was an attendance for back pain and subsequently, a year later in January 1994. In January 1994 she did present with some back problems with some tenderness in the L3-4 area and on this occasion he said he gave her a cortisone injection into one of the trigger points.
The next time Dr Asinari saw the plaintiff was the day after the accident in question.
Dr Asinari said that although he had seen her on these occasions he had never at any time certified her for any time away from work. He was asked how he would describe her personality. His reply after a period of thought was:
“She seemed a normal type person. She was what I would call a real Aussie battler, trying to bring up her son, and she worked. She came in and she would say her back was sore but she wouldn’t go on about it. I felt she was a real Aussie battler trying to get her work done and plod on.”
He mentioned that prior to the accident he had never treated her nor had she complained to him of any anxiety or depression.
Dr Asinari outlined his notes of his observations of the plaintiff after the accident. She had tenderness in the right sacroiliac joint and he referred her to Mr Mills, a physiotherapist. He was aware that she was not happy with the physiotherapy as it seemed to be aggravating her condition. He said he was proposing to send her to a rehabilitation unit at Alfreda and as well undertake a further CT scan. He was asked:
“Q. What did you consider at that time the accident to have done.
A...... I felt it had stirred up her lumbosacral spine but, after this accident, the pain was mainly down the left side and there was no further mention of pain on the right side, although occasionally she got right buttock pain. The symptoms were localised then to the left side, suggesting nerve root irritation.”
Dr Asinari referred the plaintiff to Mr Hillier who had on-referred her to Dr Cornish and she was eventually referred to Mr Carney. Dr Asinari was aware of the operative treatment undertaken in 1995.
Dr Asinari said he was aware that the plaintiff was frustrated and at times anxious and sometimes angry about the treatment that she was receiving and about the continual “merry-go-round of practitioners” that she was obliged to attend and said:
“She was always wanting to just get back to work and that anger turned into quite active anxiety and then depression requiring antidepressant treatment.”
Dr Asinari referred her to Dr Tingay because of her depression.
Dr Asinari said that there was no doubt that her complaints were genuine. He said he had spent many hours with her and said she felt she was being victimised as she believed that some of the examining specialists did not seem to listen to her complaints.
Dr Asinari’s view was that the surgery did not assist her and, if anything, her depression became a little more advanced. The plaintiff is still under Dr Asinari’s care. Occasionally he prescribes antidepressant medication and continues to monitor her intake of analgesics.
Dr Asinari was asked his view on the effect of the road accident on the plaintiff in April 1994. He said:
“A.... I feel the accident triggered off this spinal nerve entrapment, and that some permanent damage must have been done to the nerve when the disc was ruptured.
Q. The disc ruptured in the accident.
A...... That is what I feel, in my opinion was the cause. She had no left-sided symptoms prior to that.”
The left-sided pain had become most prominent and this was not a feature in her prior history.
Dr Asinari was asked about her working life if the accident had not occurred. He said it was his view that certainly a time would be reached when her back problems would become symptomatic. They may well have surfaced by the time she was 50 or 55. The time would come when she would be unable to do the heavy work required of a bar person and she would be obliged to look for lighter employment. However, “Fay wasn’t the type to give up easily. She would have kept plodding along”.
Dr Asinari was impressive in the quiet and thoughtful manner of the presentation of his evidence. I view him as a very competent and caring general practitioner. I accept his evidence.
Mr Carney outlined his qualifications and his extensive experience in this area of speciality. His view was that the accident had caused the prolapse of the L4-5 disc into the stenotic canal at the L4-5 level and this was quite consistent with the history which he had obtained from the plaintiff. He, like Dr Asinari, placed importance on the extent of the left leg pain following the accident. It was a predominant aspect of his diagnosis.
He described how in the operation he:
“.... removed the arch of bone at the back of the spine at the L-4 level and L-5 level, explored the nerve roots and removed fragmented disc material from the canal.”
Consequently his observations were that there was a prolapse of the left and central disc of the L4-5 with fragments of the nucleus lying in the scar posterior to the annulus. Certainly that material had been there and was consistent with the date of the accident having occurred in April 1994.
Clearly, Miss Garde places great weight on Mr Carney’s advice. He said he told Miss Garde that the surgery would assist her but could not give any guarantee. He felt that one of the reasons which contributed to this was the fact that fourteen months after injury with a prolonged compression of the nerve roots there was the problem of permanent nerve root damage, and, he believes this is what occurred with Miss Garde. However, although the operation would prevent any worsening of the situation it has not resulted in any improvement.
Mr Carney had commented that the plaintiff could not return to her work as a bar person and the heavy work that type of employment entailed. At the present time he did not regard her as fit for any type of employment. Mr Carney said in any event he did not think that bar work was suitable work for her and felt that she would have had a limited career in the industry - “she might have made it to the age of 50, barring no major incidents, but probably not beyond that”.
Mr Carney was aware that an occupational therapist, Miss Morgan, had attended the plaintiff and he had perused her reports, and, agreed with her recommendations. However, unfortunately he considered that the plaintiff will be subject to some progressive degeneration of her spinal column, and if it does, he said she may have to have stronger oral agents and more regular dosages. Although some doctors have mentioned epidural stimulation, he believes that technology has not advanced to a stage where it could be contemplated. There had been some discussion about a morphine implant. He was aware that Miss Garde was opposed to any type of further surgery but the possibility is there for this type of treatment.
Dr Wright, an occupational physician, confirmed that the plaintiff had been referred to the Memorial Hospital Pain Clinic by Mr Paul Carney and he was in charge of her treatment. He agreed with the general principle that with the type of fusion she had in her teenage years it was virtually inevitable that at some future time there would be lumbar difficulties.
He read Mr Carney’s summary of her disc prolapse because of the April 1994 accident, and, having spent time with her he believed her pain was organically based.
Dr Wright in his many reports outlined the assistance provided to the plaintiff at the pain clinic. However, it was his view had the accident not occurred she would not have been able to maintain her employment in the hotel industry until 65 or retiring age. He felt it unlikely that she would have continued beyond the age of 50 in that type of industry, however, if she could have gradually reduced the strenuous side of this employment, with the absence of the jolting, jarring, lifting and carrying movements, then employment could have continued until she was 55.
Dr Wright was asked to speculate on further treatment and spinal cord stimulation, but commented it was not a technology that much helps back pain at this stage. It was his view that a surgeon would resist any decision for her to undergo any further fusion surgery. He mentioned intrathecal morphine implants, but he felt that type of treatment was not established. He viewed that if her condition deteriorated then there would be discussions about better future therapeutic provisions.
Dr Wright confirmed that the plaintiff does require assistance around the house and the type would depend on the seriousness of her back condition, and, she was unfit for any work in the hospitality industry and, on reflection, it was his view that she was unfit for any employment.
Miss Thornton is a clinical psychologist. The plaintiff was referred to her for assistance during her time at the pain clinic at Memorial Hospital. She had assistance from the many medical reports.
Miss Thornton regarded the plaintiff as a very straightforward person with integrity and before the accident she was leading an eventful productive life and work was a major focus of her life. She commented that this is an important factor bearing in mind her present position. The accident has meant the loss of work and the ability to be productive and being a valuable person to her present state and these matters have affected her presentation.
However, she was aware that during the time of treatment the plaintiff has learned to adjust to new factors in her life. Miss Thornton has seen the plaintiff on many occasions, the last being in January of this year. Consequently, it was because of these matters, the plaintiff in her view is more vulnerable to relapses and periods of depression and anxiety, and, there is a possibility in time she may need psychiatric counselling. She reiterated that her inability to return to work was a very significant factor.
DEFENDANT’S EVIDENCE
The defendant called two medical experts. Firstly, Mr Peter Humble, orthopaedic surgeon, and, Mr McCulloch, neurosurgeon.
Mr Humble examined the plaintiff at the request of the WorkCover Corporation on 9 June, 1994, approximately two months after the accident. At that examination he noted that the plaintiff did not injure her left thigh and that the subsequent pain probably was referred pain from particularly the L4-5 level. He could not find any indication that the back itself had been injured. His history said that there was no low back pain following the accident, and was of the view that the plaintiff had not suffered a disc prolapse to the L4-5 in this accident.
He was further of the view, following Mr Carney’s surgery, and the fact that the plaintiff’s condition did not improve, that the diagnosis of a prolapsed disc was in doubt and it was not his view that she had suffered a disc prolapse.
He confirmed these views again in his report of 4 December, 1998, that the diagnosis of the significant back injury in the 1994 accident was in doubt and relied upon his examination of her following the accident. He viewed her present problems as being associated with her pre-existing scoliosis. His view was the accident had little influence on her current incapacity in view of his findings.
Mr Humble said he initially attended the plaintiff for approximately an hour. As his examination in chief continued it was readily apparent to me that his history taking of the plaintiff was most inadequate. I awaited the cross-examination and that certainly revealed the inadequacy of the examination and his opinions. At times his answers were unsatisfactorily and argumentative and, I felt, evasive.
He admitted that he placed reliance upon the fact that she had some leg pain prior to the accident and particularly in September 1990, some four years before the accident, but then admitted he did not know the length, duration, site or distribution of the pain, but viewed it as medically significant. Mr Humble made no enquiry as to the plaintiff’s work ethic. He was asked:
“Q. Do you know how many days off work this lady had prior to 1994.
A. No.
Q. Any idea at all.
A. No.
Q. Is that of any relevance to you.
A. Not particularly, no.”
I find that reply extraordinary when dealing with her medical history in light of his findings and opinion.
There was no reference in Mr Humble’s notes whether the plaintiff had complained about leg pain prior to the accident. This is evidence of the inadequacy of the history taking and must reflect on the nature of his examination and opinion.
Mr Hillier examined the plaintiff in late July 1994, and, his examination included a note that the plaintiff was suffering from increased lumbar pain. Questions were put to Mr Humble as to whether that diagnosis could be consistent with a disc prolapse related to the accident. Eventually Mr Humble said that such finding could be so consistent.
Mr Humble was asked to make a number of assumptions, firstly that after the accident the plaintiff did suffer from increased lumbar pain, then further the findings of Mr Carney when he carried out the operative treatment and, bearing those assumption in mind, whether this was suggestive of a disc prolapse occurring on 14 April, 1994. He answered:
“A.... No, because when I saw her there was no indication whatsoever for surgical procedure, so I can only assume that something happened after I saw her that caused the dramatic increase in symptoms and that disc sequestration.
Q.So somewhere between 14 April and 5 June there has been this dramatic increase in symptomology which nobody records.
A. That nobody records?
Q. Yes.
A...... All I can say is that there were no indications for surgery when I saw her.”
As I have mentioned, the history taking and examination by Mr Humble was inadequate. His opinion cannot in any way be relied upon.
The defendant also called Mr McCulloch. He first saw the plaintiff in November 1996 and at that time reached the view that it was possible that the motor vehicle accident caused an aggravation of the lumbar spine and increased lower back pain. However, he commented on the very significant pre-accident x-ray findings, and, felt that the subsequent surgery would have occurred in any event within a few years of the accident.
He reviewed the plaintiff again in January 1998 and felt on balance that her problems could not be related to the motor vehicle accident, or, at the very best the need for surgery has been “brought forward by a year or two. I believe the level of disability that she suffers is no different from that which would have occurred had the accident not occurred”.
Mr McCulloch gave evidence and supported his opinions and reasons for his opinions in his evidence.
Mr McCulloch pointed out that he did not agree with the interpretation of Mr Carney and the radiological report. Mr Carney was of the view that the x-rays showed a spinal canal stenosis at the L4-5 level into which a disc prolapse had occurred. Mr McCulloch said that certainly was not his opinion, nor, indeed of the radiologist, and, that Mr Carney had “got that wrong”.
Mr McCulloch was aware of the operative findings of Mr Carney and did agree that the fragments of nucleus lying in the scar posterior to the annulus was consistent with a disc prolapse, but, these were in his view “quite inconsistent with the x-ray findings and the earlier clinical examination”.
Mr McCulloch mentioned the physical findings described by Mr Humble in the examination of 9 June, 1994, which was that some event must have occurred in that intervening period to cause that problem. I mentioned in summary some concerns with Mr Humble’s examination and Mr McCulloch said that in any event that would not affect his opinion as he believed as the radiologist’s views were the same as his viewing of the x-rays, that consequently Mr Carney’s interpretation was incorrect.
Mr McCulloch also commented that in his view in Mr Carney’s operative findings that if “you found that sort of findings and did that sort of operation, the patient would receive some benefit. .... It is very easy to be deceived when you are looking down a microscope”.
I note Mr Hillier had also viewed the same MRI scans and commented on the irregularity of the L4-5 disc and disc protrusion. Mr McCulloch said that the Hillier finding was not what the radiologist states and “is not what is available on the MRI scan”. The radiologist was not called. At times, written summary type radiological reports can be insufficient and findings expanded upon. With due respect to the views of Mr McCulloch it is impossible to reject the extended views of the scan by Mr Carney and Mr Hillier.
Mr McCulloch was of the view that if the accident had not occurred and bearing in mind the plaintiff’s background of bar work and lumbar problems, that she could not have worked beyond 40 or 45. He was then asked:
“Q.... Can I get you out a little bit on that. Perhaps 50, depending if she modified her duties a little bit.
A.I mean that is an estimate. Maybe it could be 50 but then it could be as low as 35 too, it’s very unpredictable and dependent on events that occur out of the blue.”
LAW
I am always conscious of the introductory remarks of Bright J in the decision of Dibbins v Dibbins (1978) 80 LSJS 165 that in these matters, notwithstanding at time conflicting medical evidence, the primary consideration is the credibility of the plaintiff.
I accepted the plaintiff’s evidence and, indeed, it is supported by her own general practitioner and the evidence of Mr Carney.
I have been referred to the comments of the High Court in Watts v Rake (1960) 108 CLR 158 and the onus or presumption in cases like this on the defendant.
I have not accepted the opinions of the defendant’s specialists.
CONCLUSION
100 I accept the medical opinions of Dr Asinari and Mr Carney. Those views confirm the plaintiff’s evidence that -
i)...... The plaintiff did sustain a back injury in the accident on 14 April, 1994, namely a prolapse of the L4-5 disc with spinal canal stenosis at that site. This conclusion was apparent from her pain complaints immediately following the accident and supported by the MRI scan. The operative findings of Mr Carney were evidence of a disc prolapse.
This condition has resulted in the plaintiff enduring much pain which is ongoing. Because of her prior work ethic the now inability to engage in any form of work has caused her much anxiety and depression, factors which had not been evident in her life prior to the accident.
The accident has resulted in the plaintiff now suffering a substantial permanent disability of her lumbar spine function. There is no possible treatment available and the prognosis has to be bleak, if anything, there is a risk of deterioration.
The plaintiff is now not fit for any type of employment.
NON-ECONOMIC LOSS
101 I have dwelt on the plaintiff’s life and the manner in which she applied herself to her domestic and working life. I accept the evidence of her brother that she was a non-complaining person with an outgoing personality. The two main factors in her life were the rearing of her son and her employment.
102 She has endured considerable lumbar pain since the accident which is ongoing. The plaintiff is now very disabled. Apart from her back pain, the loss of the significant factor in her life of employment has caused her much mental anguish and depression.
103 However, with much counselling and the acceptance of Mr Carney’s views, clearly a person whom she has great respect, she has accepted that her pain and restriction is permanent. No doubt she had hoped that the June 1995 surgery would assist her recovery, but unfortunately that has not occurred. I accept her brother’s observations.
104 Mr Carney commented in 1996 she had a substantial permanent residual disability in the order of 20% of her lumbar spine function compounded by the prior spinal abnormalities and extensive fusion which led to an overall disability in the order of 40%. Her problems and pain will be continuous and ongoing.
105 I am obliged to allot a numeral for the plaintiff. I have considered other awards. I propose to allot the numeral 18. The multiplier is 1,430 making a total of $25,740.
PAST ECONOMIC LOSS
106 This has been the subject of much evidence and much comment by counsel. I have had submitted to me copies of the plaintiff’s tax returns from the year ending 30 June, 1991, until the year ending 30 June, 1996. They show her initial employment at the Colac Hotel, then her unfortunate venture at the Pier Hotel at Milang, and the commencement of her employment in July 1993 to the accident at the Blair Athol Hotel. A summary of those returns is attached with an approximate net weekly amount of earnings over the years.
107 I had submitted to me a schedule of the plaintiff’s past economic loss prepared by the plaintiff’s solicitors and I attach a copy of that to this judgment. A well prepared document. That schedule confirms the plaintiff was working some 28 hours a week at the Blair Athol Hotel and it shows over a 38 week period her gross and net earnings. In that time the net amount was about $392 per week. The plaintiff appears to have received WorkCover payments for most of that period.
108 There has been much debate about the plaintiff’s work capacity. Clearly, at some time in the future, her back problems would become symptomatic and the nature of her work was far from ideal. However, the plaintiff applied herself well to her tasks and importantly had a great desire to work. One can only speculate that if the accident had not happened there was the potential for her to work more weekly hours, or, because of the changing nature of the hotel industry, there may well have been other tasks of a lighter nature.
109 My finding is that the plaintiff would have been actively employed to the present time in that industry. I accept her total pre-trial loss which includes the gross amount of her WorkCover weekly payment of $82,672.97 and the notional further amount of $22,000.
110 The plaintiff is not entitled to the first week. Accepting those circumstances, I fix her past economic loss at $104,373.
FUTURE ECONOMIC LOSS
111 It is apparent from the annexure, and as plaintiff’s counsel contended, the basis for this calculation is the net weekly amount of her Blair Athol Hotel wage of $392.
112 I have had placed before me from Brett & Watson Pty Ltd two actuarial calculations, the first by letter of 7 October, 1998, and the second, by letter of 4 February, 1999. On the basis of Miss Garde’s birth date of 19 August, 1960, and using an actuarial assumption rate, the first certificate was on the basis of 60/65 and whole of life, and, the more recent certificate was on the basis of by the age of 50/55. The last actuarial letter is of assistance. The lump sum equivalent of payment of $1 per week to the age of 50 or prior death is $457.
113 I mentioned the debate which has taken place amongst all the specialists and practitioners concerning their assessment of her future working life. For reasons which I have mentioned, I place no reliance at all on Mr Humble’s views and indeed have reservations about Mr McCulloch’s views.
114 The views of her own medical practitioner, Dr Asinari, impressed me as well as the views and opinions of Mr Carney.
115 The plaintiff before the accident was a non-complaining person despite her existing lumbar problems and had a great desire to work and carried out all of her work tasks efficiently.
116 I accept without any reservation the totality of the evidence given by the plaintiff. She is a genuine person and certainly not one prone to exaggerate her symptoms. If this accident had not happened I have no doubt she would have been most assiduous in her application to work, and, although there would have been some degenerative processes occurring, she was not a person to accept those lightly and would have continued with her work efforts, not only for the money required for herself and her son, but her enjoyment of the social nature of the same. Dr Asinari’s comment that she was a “real Aussie battler” is very accurate and appropriate.
117 A convenient starting point in this calculation is her net weekly loss at the Blair Athol Hotel and, using the $457 multiplier to the age of 50, this results in a figure of $179,144, or, to 55, with an annuity of $586 - $229,712.
118 I do not believe her evidence leads me to apply the latter figure. The age of 50 is appropriate. There are many contingencies to bear in mind in this calculation, which I have taken into account.
119 The specialists have commented on the nature of her lumbar spine and its no doubt gradual future deterioration. I accept as against that it can be said in the four years before the accident her attendances on her own doctor for back pain were quite minimal and, indeed, in the ten month period prior to the accident not one day of employment was missed. Dr Asinari had never been asked by her over that 15 year period for a certificate of inability to attend work.
120 An important factor in this type of calculation is her prior net work income. Certainly the degenerative aspect of her lumbar spine is a most important factor. On the other hand her net income is based on 28 hours a week. The plaintiff may well have had the capacity to work longer in a less manually stressful area of bar work. The plaintiff I regard as very much an exceptional person.
121 Doing the best I can in all the circumstances, I propose to award a sum of $150,000 for her future economic loss.
INTEREST
122 The plaintiff is entitled to interest on the past economic loss. I fix a sum of $800 for that loss.
SPECIAL DAMAGES
123 I have been informed that the total of these expenses paid by WorkCover is $24,240.
FUTURE MEDICAL EXPENSES
124 It has been pointed out to me the plaintiff will require further assistance from Dr Asinari and perhaps some psychological or psychiatric treatment. The need for such assistance will gradually abate. The completion of this matter will no doubt assist her recovery in this area.
125 I was told in the last year for instance the amount paid by WorkCover for Dr Asinari, the chemist and psychologist amounted to $2,301.45 or $44 per week. I believe this has to be to some extent discounted.
126 I propose to make an allowance of $13,000 under this head of damage which roughly equates with $25 per week payment for this assistance for the next 10 years.
FUTURE OPERATIVE CARE
127 I have had comments from Dr Wright and Mr Carney about two possible areas of further surgery being spinal cord stimulation, or, a morphine pump implant. However, this evidence was rather speculative. I gained the impression that this technology very much is still in the investigative phase and insufficient for me to make any award.
GRATUITOUS SERVICES
128 The plaintiff has outlined the assistance that she received from her caring parents for many weeks after the accident, the operation and then the continual care from her brother. It has been commented on the weekly help that she requires. A schedule was placed before me on the voluntary/paid assistance that she will require. Clearly she will need voluntary and/or paid assistance.
129 I am prepared to allow a sum of $2,000 for the past and for the future I propose to fix a sum of $20,000.
130 The position is as follows:
PAST
FUTURE
Pain and suffering - numeral 18
25,740
Economic Loss
104,373
150,000
Interest on past economic loss
800
Special damages
24,240
Future medical expenses
13,000
Gratuitous services
2,000
20,000
TOTAL
$131,413
$208,740
TOTAL
$340,153
131 Consequently I enter judgment for the plaintiff in the sum of $340,153.
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