Gelencser v Lucas; Gelencser v Ash
[2014] ACTSC 207
•11 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gelencser v Lucas; Gelencser v Ash & anor |
Citation: | [2014] ACTSC 207 |
Hearing Date(s): | 23 December 2013 |
DecisionDate: | 11 September 2014 |
Before: | Burns J |
Decision: | SC 101 of 2010: Damages are assessed at $119,234.35. SC 406 of 2012: Damages are assessed at $116,534.35. |
Category: | Principal judgment |
Catchwords: | TORTS – Negligence – personal injury – motor vehicle accidents – liability admitted – apportionment of damages – assessment of damages |
Parties: | SC 101 of 2010: Matilda Elizabeth Gelencser (Plaintiff) Anita Lucas (Defendant) SC 406 of 2012: Matilda Elizabeth Gelencser (Plaintiff) Andrew Ash (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr Tuscano (Plaintiff) Mr Fitzsimmons (All Defendants) |
| Solicitors Ken Cush & Associates (Plaintiff) Moray & Agnew (All Defendants) | |
File Number(s): | SC 101 of 2010; SC 406 of 2012 |
Burns J:
The plaintiff has two proceedings before this Court. On 22 August 2007 the plaintiff was the driver of a motor vehicle which was involved in a collision with another motor vehicle driven by the defendant in proceedings SC 101 of 2010. For convenience I will refer to this as the first accident. Subsequently, on 9 August 2010 the plaintiff was the driver of a motor vehicle which was involved in a collision with another motor vehicle driven by the first defendant in proceedings SC 406 of 2012. For convenience I will refer to this as the second accident. The plaintiff claims damages for personal injuries sustained in these accidents. The defendants admitted liability for the accidents, and both claims proceeded as assessments of damages only.
The plaintiff’s evidence
The plaintiff’s testimony
The plaintiff was born in December 1977 and as such was 29 years old at the time of the first accident. She gave evidence that she attended schools in the ACT until the end of year 12. After leaving school she intended to go into office employment. In 1997 she did a course at the Metropolitan Business College in office administration for a period of 12 months. Her first employment was as a receptionist or administrator at Highland Press, although this employment only lasted for two months. About two weeks after she left that employment, she found employment at the National Archives in the reading room as an Australian Public Service level (APS) 1. She continued in the reading room from 1998 to 2001. Her duties included photocopying documents, taking requests for photocopying from customers and filing.
From March 2001 to March 2008 she was employed in the record-keeping office at the National Archives. During this period the first accident occurred. Her employment in the record-keeping office involved record-keeping duties and sentencing of files. Sentencing of files involved determining whether to keep records for a long time or for a short time. It involved manual handling of boxes containing those records measuring about 18 in². The plaintiff was required to lift those boxes off the ground and onto tables to remove and examine the records contained within. She subsequently had to return the records to the boxes, and then place them on shelving within the Archives. Additionally, her duties also included the daily maintenance of files and communicating with other staff regarding record-keeping management. About 50% of her work was the handling of boxes and files, and about 50% was computer-based.
In March 2008 the plaintiff was promoted to an APS 2 in the pay-roll unit of the National Archives. In that role she was responsible for processing leave, liaising with the payroll provider regarding pay, dealing with staff on a day-to-day basis, and scanning and filing of documents. Her duties were somewhat less physically demanding than those she had undertaken in the record-keeping office.
In 2000 the plaintiff was involved in a motor vehicle accident in which she suffered no injuries. In October 2003 she saw her general practitioner about back pain she suffered when moving boxes in her employment. She was prescribed a course of physiotherapy. Other than that incident, the plaintiff could not recall suffering back pain prior to the first accident.
The first accident occurred on 22 August 2007 as the plaintiff was on her way home from work. Her car was struck from the side in an intersection, causing her vehicle to spin 180°. Immediately after the accident her right arm and right thigh were very sore. She was able to get out of the car on her own and was examined by ambulance officers. They suggested that she should go to the hospital but she declined. She rang her husband, who attended and commenced to drive her home. On the trip home she had a headache and was feeling lightheaded and nauseous. She still had pain in her arm. She decided that it would be better to go to hospital. Her husband drove her to Queanbeyan Hospital where she was kept under observation for between two and four hours. During that period her condition stayed the same, although the nausea passed. She was told that she had a concussion, and was released with directions that she see her doctor the next day. The next day she saw her general practitioner, Dr John Hutton, who recommended physiotherapy. She had two days off work during which time her right arm and thigh were still sore, and she had neck and shoulder pain. She may also have had some pain in the lower back, but there was more in the shoulders and neck.
She subsequently returned to work where she continued performing her duties, but had trouble doing them. Sitting at the desk would give her lower back pain and lifting boxes also caused her pain. She found that taking a break every 20 minutes or so to walk around helped with her back pain. She eventually told her employer of the difficulties she was having at work, and a workplace assessment was conducted. This resulted in a change to the height of her desk, and changing the way that she sat in her chair. She testified that this did not help very much. The plaintiff testified that sentencing files was the part of her work in the record-keeping section which caused her the most pain. In November 2007 she had pain across her lower back that was provoked by lifting boxes weighing between 3 and 5 kg. On that occasion her doctor prescribed physiotherapy.
After the first accident the plaintiff returned to the gym, initially going three times a week for about two weeks. She found this was too much for her and stopped. She subsequently tried to return to the gym on a second occasion for about two months. She stopped because the exercises were hurting her back and shoulders. In the period between the first and second accidents she continued to have physiotherapy which provided her with temporary relief. The defendants’ insurer (the respective defendants in the two proceedings have the same insurer, namely Insurance Australia Limited t/as NRMA Insurance, the second defendant in the SC 406 of 2012 matter) paid for these physiotherapy visits for a few months, and the plaintiff paid for her own visits thereafter. She also undertook acupuncture at her own expense commencing in September 2008, which also provided temporary relief. Between the two accidents she took painkillers such as Panadol or Neurofen and would also use Deep Heat cream. She was using the painkillers about three or four times a week at night and sometimes during the day. The plaintiff testified that she had trouble sleeping, mainly because of her neck and shoulder pain. She found that painkillers helped. These symptoms continued up to the second accident, although she could be without pain once or twice a week. Between the first and second accidents she had some difficulties with domestic duties, such as washing the dishes and cleaning the bathroom. She found that standing in the same spot gave her lower back pain.
The second accident occurred on 9 August 2010 at about 6:00 pm. The plaintiff was 32 years old at the time of this accident. The plaintiff was on her way home from work when her vehicle was struck in the rear by another vehicle. She said that she saw that vehicle coming towards her “pretty fast” in her rear view mirror. She was able to brace herself, and her car did not hit the car in front of her after the impact. After the accident she had pain across her shoulder and chest. Her car was not able to be driven, and had to be towed away. It was not, however, written off. She was driven home by the tow truck driver. The next morning her shoulder and neck were a little bit sore, and she also noticed pain in her low back. She went to the doctor and took two days off work. She said that the pain in her neck, back, shoulder and arm were “a bit worse” after the second accident than before it. She said that her condition has not changed since that time.
By the time of the second accident the plaintiff was employed in the pay-roll section of the National Archives. During the month after the second accident she testified that she was having difficulties at work, including pain in her lower back, neck and shoulder after sitting for long periods. She coped with that by getting up from her desk every half hour to walk around and take a break. She testified that the need to take a break so frequently affected her work performance. Her employer conducted a further workplace assessment.
The plaintiff testified that she decided to “quit” her employment with the National Archives in 2012. She initially took leave without pay in early 2012. She said that she took leave without pay because her work performance wasn’t satisfactory and she wanted to find other employment, so she took leave without pay to look for another job. She sought employment through a temp agency looking for office jobs where she would not need to sit down for long periods of time. She found a position working for Housing New South Wales for a period of two months which involved record-keeping. This was different to the work that she had done at the National Archives, because “it was more going through the electronic files and looking at the titling of the files.” She also did errands. She left after two months because the job was hurting her back, and in addition the nature of the job was changing and she didn’t want to remain.
The plaintiff then obtained employment in September 2012 at Target as a Customer Service Assistant. She remains in that employment, working 30 hours a week. She is involved in assisting customers with lay-bys. She is also responsible for hanging up clothing returns.
The plaintiff continues to have physiotherapy once every two weeks, which she pays for. She no longer has acupuncture, although she intends to have this treatment in the future. She continues to take painkillers and to use relief cream from time to time. As a consequence of not being able to go to the gym her weight has increased.
At the time of the first accident the plaintiff was living with her mother and father, and shared household duties such as cooking, vacuuming and cleaning. She has been married since 2011, and she and her husband still live with her mother.
In cross-examination the plaintiff agreed that she has been treated for endometriosis since about 2004. She has undergone surgical procedures for gynaecological issues, including after both the first and second accidents. The plaintiff also agreed that she had increasing gynaecological problems towards the end of 2011, resulting in her considering participation in an IVF program. It was suggested to her that the reason she took leave without pay, and ultimately resigned, from the National Archives was because of her proposed participation in the IVF program. The plaintiff disagreed with this proposition, saying that the timing of her taking leave and considering participation in the IVF program was coincidental. The plaintiff did not, in fact, enter into the IVF program. She said that this was for financial reasons, but she intended to participate in the program in the future.
The plaintiff agreed that she attended two different medical centres over the years after the first accident, because she was not always able to get an appointment at her preferred medical centre. She agreed that within five days of the first accident her general practitioner, Dr Hutton, certified her as fit to return to full duties. She agreed that she returned to full duties, and continued to undertake them until the second accident. She had some absences from work between the first and second accidents, but the vast majority were unrelated to the first accident. Similarly, the plaintiff was taken to the medical records for her attendances on medical practitioners after the second accident, and she agreed that most were unconnected with that accident or the first accident. She agreed that she was certified by her medical practitioner as fit to return to normal duties after the second accident on 16 August 2010. She also agreed that most of her attendances upon medical practitioners had been for conditions unrelated to her accidents, but maintained that she was nevertheless experiencing back and neck pain.
The plaintiff agreed that she completed an application form for employment at Target in 2012. She agreed that she indicated in that document that she would prefer full-time employment, but said this was because she needed the money and not because she felt able to do a full-time job. The plaintiff agreed that she understood when she was applying for the job at Target that it was a physical job, in the sense that it involved walking around. She also agreed that she answered “no” to a question: “Inherent requirements of this position include repetitive actions and physical work involving lifting and/or standing for long periods. Is there anything that would prevent you from fulfilling these requirements?” She also agreed that she did not tell Target that she had left her position at the National Archives because she was not medically able to do the job, instead saying she “needed a change of scene”. She agreed that at the time she applied for the job at Target she was willing to take on a full-time job knowing that it may involve lifting, long periods of standing, and potentially repetitive bending.
The plaintiff denied having told the National Archives that she was resigning for personal reasons. She said that she told her director that she was having problems in her work and that she was taking leave without pay to find another job that wouldn’t require long-term sitting. She said that her supervisor at the National Archives was aware of her back, neck and shoulder pain. The plaintiff was taken to her work performance review conducted in 2011 at the National Archives and agreed that it was a good report. Whilst the report for 2012 was not as good, it corresponded with a period when the plaintiff was having increasing problems with her underlying medical condition of endometriosis, resulting in her being referred to a new specialist. The plaintiff however denied that her work performance had been affected by her endometriosis. In re-examination the plaintiff said that her symptoms of endometriosis only affect her about three days a month.
The plaintiff denied that she had suffered no interference to her activities of daily living as a consequence of the first accident, although she could not recall whether she told a medical practitioner, Dr Bornstein, that in 2008. She agreed that before the accident she and her mother would share the household duties equally and that this continued to be the case after the first accident. Since her marriage her husband now also helps because he is a member of the household.
The plaintiff’s medical reports
The plaintiff provided a medical report dated 27 February 2012 from Dr Gerard Barold, a specialist in occupational medicine. He noted the histories of the accidents in August 2007 and August 2010. At the time he saw her, the plaintiff complained of frequent neck pain, occasional frontal headaches, frequent shoulder girdle pain, intermittent inter-scapular pain, occasional tingling down the left arm, frequent low back pain, disturbed sleep, aggravation of symptoms by domestic chores, reduced static standing tolerance, development of restless discomfort with prolonged sitting, restriction of driving to short distances, difficulty bending, lifting and carrying, and aggravation of her neck and back symptoms by computer use. Dr Barold conducted a physical examination of the plaintiff and reviewed x-rays and a CT scan of her lumbosacral spine conducted in 2008 and 2011. Dr Barold concluded that the plaintiff had suffered mechanical straining injuries to her neck and thoracic and lumbar spines in the accident on 22 August 2010. The plaintiff reported to Dr Barold that her symptoms were approximately 20% more severe since the second accident. He thought it unlikely that her symptoms would entirely resolve, and believed that they would continue in a waxing and waning fashion for an indefinite period. He considered the plaintiff’s history to be consistent with his clinical findings, and he considered the injuries sustained in the two accidents to be causally related to her condition.
Dr Barold opined that the plaintiff should be provided with a gym program focusing on neck and shoulder mobilisation with core strengthening exercises in conjunction with hydrotherapy at a cost of $2700.00 with an add-on cost of a six-month gym and pool membership. He believed that she should also be provided with 10 physiotherapy and palliative massage treatments per year at a cost of $80.00 each. She would also need to consult her general practitioner four times a year at a cost of $70.00 per consultation, and would benefit from annual supervision by an orthopaedic surgeon at a cost of $220.00 per annum. Dr Barold estimated medication costs, analgesics and/or anti-inflammatory agents to be approximately $600.00 per annum. He “noted” that the plaintiff required 11 and a half hours domestic assistance per week in the first three months following each accident, and that she had an ongoing need for seven and a half hours of domestic assistance per week. He considered the plaintiff’s injuries to have adversely impacted on her capacity to work with a resultant impairment of both her past and future earning capacities. He considered that 20% of her present impairment should be apportioned to the second accident.
Dr Barold provided a subsequent report dated 6 November 2013. The plaintiff’s complaints were essentially unchanged. Dr Barold again physically examined the plaintiff. He commented in this report that the plaintiff’s symptoms had been so severe that she had found it impossible to cope with her employment with the National Archives, and that she had since resigned from that position and taken up a lesser paying position as a sales assistant with Target. Although the plaintiff described her employment at Target as less aggravating to her condition than her previous employment, she still complained of being in pain and tired. Dr Barold also noted that she continued to experience significant disability and impairment in her neck and lower back, with this having diminished her functional and work capacities. As it was more than six years since her first accident and more than three years since the second accident, he considered it unlikely that her injuries would totally resolve. He considered that she should avoid activities involving repetitive or sustained neck and back flexion and extension, prolonged static posturing, bending, stooping, kneeling and squatting. She should limit the lifting of weights to less than 5 kg to shoulder height only and she should be given the opportunity to sit and stand and take rest periods as required. Dr Barold repeated his recommendations for treatment made in his earlier report, but slightly updated the likely costs.
Dr Barold was not required for cross-examination.
The plaintiff’s records
The plaintiff’s medical records reveal that she attended the following medical appointments:
· On 23 August 2007 the plaintiff had treatment at Queanbeyan Physiotherapy. The history taken was of a motor vehicle accident the previous day. Treatment appears to have been directed to the lower back and neck.
· On 24 August 2007 the plaintiff consulted Dr Hutton. He took a history of a motor vehicle accident including treatment at Queanbeyan Hospital.
· On 24 September 2007 the plaintiff again consulted Dr Hutton. He recorded that she was still in pain, with pain on both sides of the lower back which interfered with her sleep, and pain down her left arm with numbness in the mid-forearm.
· On 4 October 2007 the plaintiff had treatment at Queanbeyan Physiotherapy. The patient history recorded pain in the shoulders, neck and lower back. She was having difficulty getting to sleep.
· On 18 October 2007 the plaintiff was treated at Queanbeyan Physiotherapy, with treatment directed to the neck, shoulders and back.
· On 22 October 2007 she consulted Dr Hutton. He recorded that she was still suffering from lower back pain radiating into both shoulders after the motor vehicle accident.
· On 26 November 2007 the plaintiff saw a general practitioner. The history recorded was of a complaint of pain across the lower back provoked by lifting boxes at work four days earlier.
· On 29 November 2007 she had treatment for lower back pain at Queanbeyan Physiotherapy.
· On 3 December 2007 she consulted Dr Hutton, and he recorded that there had been a sudden worsening of lower back pain 10 days prior.
· On 7 February 2008 the plaintiff had treatment at Queanbeyan Physiotherapy. She complained of lower back pain and mid thoracic pain.
· On 13 February 2008 the plaintiff consulted Dr Hutton. He recorded that her neck was pain-free but she had intermittent lower back pain radiating into the buttocks.
· On 22 February 2008 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 10 March 2008 the plaintiff consulted Dr Hutton. He noted that the CT scan showed minor L5/S1 posterior disc bulge and that the plaintiff had been better with more regular exercise.
· On 22 April 2008 the plaintiff had physiotherapy, and complained of pain lying supine.
· On 31 May 2008 the plaintiff had treatment with Debbie Wilson from Integrated Massage Therapy. Ms Wilson took a history of injury to the lower back after a car accident. The plaintiff complained of pain and muscle spasm. Ms Wilson’s notes record the plaintiff attending for massage on 10 occasions between 31 May 2008 and 31 October 2008. The plaintiff complained of pain and spasms in her low back.
· On 4 June 2008 the plaintiff had physiotherapy, and was complaining of pain lying supine.
· On 13 June 2008 the plaintiff had massage therapy.
· On 24 June 2008 the plaintiff had treatment at Queanbeyan Physiotherapy. Pain sleeping on her back was recorded as a major complaint.
· On 27 June 2008 the plaintiff had massage therapy.
· On the same day the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 12 July 2008 the plaintiff had massage therapy.
· On 25 July 2008 the plaintiff again had massage therapy to her lower back area, gluteus muscles, hips and legs.
· On 14 August 2008 she had treatment at Queanbeyan Physiotherapy. She was complaining of tingling in the arms, and lower back pain. She complained that pain was present after sitting. It was noted that she was having an occupational health and safety assessment at work.
· On 15 August 2008 the plaintiff had massage therapy.
· On 26 August 2008 the plaintiff attended Crawford Street Medical Centre where the clinical notes recorded that she was the driver of a motor vehicle involved in an accident on 22 August 2007. She complained of pain in her lower back and neck and shoulders. The pain had recently flared up and disturbed her sleep.
· On 29 August 2008 the plaintiff consulted Dr Hutton at Crawford Street Medical Centre who recorded that her back pain was better and was “low grade” at that time.
· Also on 29 August 2008 the plaintiff had massage therapy.
· On 4 September 2008 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 5 September 2008 the plaintiff had massage therapy.
· On 9 September 2008 the plaintiff had acupuncture treatment at Queanbeyan Acupuncture. The clinical notes record a car accident in August 2007 and a complaint of ongoing back pain and lumbar ache. Neck and shoulder pain mostly on the right was also recorded.
· On 12 September 2008 the plaintiff had massage therapy.
· On 23 September 2008 the plaintiff had acupuncture.
· On 30 September 2008 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 2 October 2008 the plaintiff had massage therapy.
· On 6 October 2008 the plaintiff had massage therapy.
· On 29 October 2008 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 31 October 2008 the plaintiff had massage therapy.
· On 1 December 2008 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 20 January 2009 the plaintiff had physiotherapy treatment directed to her shoulder and back.
· On 27 January 2009 the plaintiff had treatment at Queanbeyan physiotherapy.
· On 6 February 2009 the plaintiff had physiotherapy treatment directed to her shoulders.
· On 16 February 2009 the plaintiff had treatment at Queanbeyan Physiotherapy. The clinical notes record pain in the left arm and pain radiating into the sacrum.
· On 26 February 2009 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 2 March 2009 the plaintiff had treatment at Queanbeyan Physiotherapy. The patient history recorded that there had been a slight improvement but that her condition was aggravated by prolonged sitting.
· On 3 March 2009 the plaintiff had physiotherapy treatment on her back.
· On 5 March 2009 the plaintiff had physiotherapy treatment for lower back pain.
· On 7 April 2009 the plaintiff had treatment at Queanbeyan Physiotherapy. The clinical notes record that her lower back was still sore, and sleeping and sitting were problems at the time.
· On 8 April 2009 the plaintiff had physiotherapy treatment.
· On 14 April 2009 she had physiotherapy treatment directed towards her shoulders and back.
· Also on 14 April 2009 she saw her general practitioner who recorded that she complained of pain to the back of her neck on the right overnight with radiation to her right arm.
· On 11 June 2009 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 28 June 2009 she had treatment at Queanbeyan Physiotherapy.
· On 6 July 2009 she had treatment at Queanbeyan Physiotherapy and was given advice about lumbosacral posture and sleeping position.
· On 20 July 2009 the plaintiff had treatment at Queanbeyan Physiotherapy.
· On 7 September 2009 she had treatment at Queanbeyan Physiotherapy.
· On 21 September 2009 the plaintiff had physiotherapy treatment.
· On 6 October 2009 she had physiotherapy treatment with the main area of treatment being the lumbar spine.
· On 7 July 2010 the plaintiff had physiotherapy treatment.
· On 10 August 2010 she consulted with her general practitioner at Brindabella Family Practice. The clinical notes record “rear ended yesterday as she was slowing down at traffic light, no head injury or loss of consciousness, mild aches in back, chest and left thigh and lower leg”.
· On 23 August 2010 she consulted her general practitioner whose clinical notes recorded “2 weeks she had MVA, still aches and pains in her chest, shoulder, neck and legs”.
· On 26 August 2010 the plaintiff had physiotherapy treatment.
· On 3 September 2010 she consulted her general practitioner who recorded that she was still in pain after a motor vehicle accident.
· On 31 March 2011 the plaintiff had physiotherapy treatment at Queanbeyan Physiotherapy. The history recorded that the treatment related to motor vehicle accidents and was directed to cervical and thoracic pain and stiffness. It was recorded that the pain was aggravated after a period of time washing the dishes. She was reported to be taking non-steroidal anti-inflammatories at least once a day.
· On 15 April 2011 the plaintiff had treatment at Queanbeyan Physiotherapy directed to shoulder pain and thoracic pain.
· On 19 April 2011 she had treatment at Queanbeyan physiotherapy directed to left cervical/shoulder stiffness.
· On 13 May 2011 the plaintiff had treatment at Queanbeyan Physiotherapy after a flare-up of the left upper thoracic spine caused by use of a computer mouse.
· On 10 August 2011 she had acupuncture at Queanbeyan Acupuncture. The clinical notes record “lumbar pain from car accident”.
· On 24 August 2011 the plaintiff had acupuncture.
· On 8 September 2011 she consulted her general practitioner at Brindabella Family Practice, whose clinical notes record “lower back pain, wake up with pain”.
· On 10 November 2011 the plaintiff consulted her general practitioner at Crawford Street Medical Practice, who requested imaging of the lumbar spine. The notes referred to lower back pain and neck pain since motor vehicle accidents in 2010 and 2007. It records that the neck and lower back pain had become worse after the accident in 2010.
· On 13 December 2011 the plaintiff had acupuncture treatment for back pain. The clinical notes say “mid and lower back today and yesterday”.
· On 22 December 2011 the plaintiff underwent acupuncture treatment for shoulder and neck pain.
· On 24 February 2012 the plaintiff had acupuncture treatment. The clinical notes say “shoulder blades killing”.
· On 1 March 2012 the plaintiff had acupuncture treatment for lower back pain.
· On 8 March 2012 she attended Crawford Street Medical Centre complaining of a sore lower back. The examination demonstrated a decreased range of motion in of the lumbar spine.
· On 29 March 2012 she attended Crawford Street Medical Centre and her treating doctor recommended that she take Panadol for back pain.
· On 3 April 2012 the plaintiff had acupuncture therapy for tight neck and shoulders.
· On 17 April 2012 the plaintiff had acupuncture treatment for her shoulder and neck.
· On 27 April 2012 the plaintiff had acupuncture treatment directed primarily to the neck and shoulder.
· On 3 May 2012 she had acupuncture treatment directed to the neck and shoulders.
· On 5 May 2012 she had acupuncture and the clinical notes state “neck and shoulders still tense and sore”.
· On 15 May 2012 the plaintiff had acupuncture treatment. The clinical notes state “starting new job next week. Neck shoulders and back still causing trouble”.
· On 3 August 2012 the plaintiff had acupuncture treatment, with the notes stating “lower back really sore”.
· On 21 August 2012 the plaintiff had acupuncture treatment to her neck and shoulders.
· On 22 August 2012 the plaintiff had acupuncture treatment.
· On 4 September 2012 she consulted Dr Hutton at Crawford Street Medical Centre who noted “ongoing neck and lower back pain, pain on prolonged sitting or standing, doing house work, takes Panadol, Neurofen, Deep Heat”.
The treatment notes produced on subpoena end around the end of 2012.
The defendants’ evidence
The defendants’ medical reports
The defendants provided a report dated 30 September 2008 from Dr David Bornstein, a consultant orthopaedic surgeon. He assessed the plaintiff on 29 September 2008. He noted that, after the first accident, the plaintiff had two days off work due to concussion and she had a painful right arm. Since that time she had developed neck, shoulder and lower back pain. She had been treated by physiotherapy and massage. The plaintiff took two to four painkiller tablets per week. The plaintiff complained that, on sitting for protracted periods, she would experience lower back pain on rising. She also had intermittent pain in the left side of her neck, primarily occurring while she was in bed. She thought her symptoms had been slightly worsening. Dr Bornstein concluded that the plaintiff had sustained soft tissue injuries, but that she remained fit for her normal employment. He did not expect her future earning capacity to be affected, and he expected her current symptoms to settle with time.
Dr Geoffrey Stubbs, an orthopaedic surgeon, provided a report dated 15 August 2012. He noted that the plaintiff had been involved in two motor vehicle accidents. He noted that, at the time he saw her, the plaintiff was on leave without pay from her position with the National Archives. He conducted a clinical examination of the plaintiff and noted specific restrictions of rotation and bending in her cervical spine. He further noted that straight leg raising was approximately 70° with the presence of spasm induced by bilateral straight leg lowering. Dr Stubbs considered that the first accident seemed to have been responsible for most of the lower back symptoms, and the second accident for most of the neck symptoms. His diagnosis was non-specific, post-traumatic neck and low back pain. He noted that symptomology of this type tends to persist, with the question being whether this is matched by a corresponding level of disability. He opined that most people with this condition continue to complain of symptoms but with time resume their normal life. He believed that this would be the case with the plaintiff. He believed that her injuries were stable and caused a moderate level of symptoms. He believed that she was fit for full time clerical work. Allowing for both accidents, he thought she may have been unfit for work for up to six weeks. He believed that she had no ongoing need for domestic assistance although she received some assistance with heavy housework from her family.
Associate Professor Richard Jones, a consultant physician in rehabilitation medicine, provided a report dated 1 May 2013. He noted the history of two motor vehicle accidents. The plaintiff told him that her duties in the pay-roll section of the National Archives necessitated sitting down which caused her pain. She thought that her supervisor did not like that she needed breaks from her desk. She believed that there were issues because her work was suffering. She said this caused her to leave her employment with the National Archives in June 2012. He conducted a physical examination in which he found little in the way of objective evidence of impairment, although there was some tightness of muscles around the neck. He expected that the plaintiff would be capable of independent personal care and full-time work in a situation which did not aggravate her soft tissue discomfort. His diagnosis was soft tissue symptoms. He noted a CT scan of the plaintiff’s back on 29 February 2008 reported a slight scoliosis and a minor disc bulge at L5/S1, but he did not consider that to be of medical significance to her symptoms. He noted that prior to the first accident the plaintiff had no disabilities or restrictions, and that between the two accidents she had various symptoms to her lower back and neck. He considered that the majority of her impairments were the result of the first accident, with aggravation from the second accident. He would have expected her soft tissue symptoms to have resolved within three to six months of either accident. He believed that her symptoms would improve with the passage of time.
Associate Professor Jones provided a supplementary report also dated 1 May 2013 after he had viewed extensive clinical notes from her family physician and other medical records. This material did not cause him to alter the opinions he had expressed in his earlier report.
Associate Professor Jones provided a further report dated 9 December 2013 after examining the plaintiff on the same date. He noted that the plaintiff was independent in her personal care and in some activities of daily living of a domestic nature including some cooking, using the washing machine and pegging clothes on the clothesline. Her mother helps with the vacuuming. Her husband does the bathroom and toilet. The plaintiff does the shopping with her mother. Examination of her neck revealed mild tenderness of the neck muscles but no localised spasm or tenderness to gentle palpation. Neck movements were within a normal range in lateral rotation and forward flexion and extension. Associate Professor Jones was of the view that the accidents the plaintiff described would have caused muscle strain and that those symptoms would usually have been expected to resolve within about three to six months of each accident. On physical examination he could find little in the way of objective evidence of her symptoms. He believed the plaintiff to be independent in her personal care and to have the potential of being independent in the activities of daily living of a domestic nature and to be capable of working full time in her chosen profession. His diagnosis was soft tissue pain associated with tension which has been slow to resolve subjectively from her accidents. He believed that she was fit for work. He thought that a self-directed fitness program would be appropriate. He estimated that it would have been appropriate to provide about two hours per week of domestic assistance had she been living alone for about three months from the time of the accident in 2007 and again following the accident in 2010. He expected that at the time he saw her she would be independent in domestic chores.
None of the defendants’ medical experts were required for cross-examination.
Consideration
In my opinion, attempting to attribute fixed proportions of the plaintiff’s current symptoms and disabilities to one or other of the accidents is a highly artificial exercise which is not required in these proceedings as both the defendant in relation to the first accident and the first defendant in relation to the second accident have the same insurer.
The plaintiff was not a good historian, although I found no reason to disbelieve the evidence that she gave. Because of the plaintiff’s limitations as an historian, I have set out at some length in this judgment details of her attendances on medical practitioners and allied health professionals in relation to the two accidents. I accept the plaintiff’s evidence that she has ongoing pain in her neck and lower back as a result of these accidents. This appears to be consistent with the medical evidence and the pattern of her attendance for treatment. I do not accept the proposition that the plaintiff left her employment with the National Archives solely because of the effects of her injuries. I accept that the effects of her injuries played a role in her deciding to seek other employment, but I am satisfied that it was just one of a number of factors, including other unrelated health concerns and a desire for change, which led to her changing her employment.
In written submissions, counsel for the plaintiff suggested that the plaintiff should be awarded significant sums for past and future wage loss. The medical evidence supporting this proposition is weak. Dr Barold notes the history given by the plaintiff of having left her employment at the National Archives because of her symptoms and in order to obtain employment that is less aggravating to her condition. In his first report Dr Barold expressed the opinion that the plaintiff was fit to return to modified pre-injury work duties, and he recommended that she avoid activities which involve repetitive or sustained neck and back flexion and extension, prolonged standing, bending, stooping, kneeling and squatting. He further opined that she should also avoid prolonged static posturing or forward flexing, and she should limit keyboarding to a maximum half an hour at any one time, alternating this with other duties. In Dr Barold’s second report, after noting that the plaintiff reported leaving her employment with the National Archives due to the ongoing symptoms, he expressed the opinion that the plaintiff continues to experience significant disability and impairment in the neck and lower back, with this having diminished her functional and work capacities. On the other hand, each of the medical specialists who provided reports on behalf of the defendants considered the plaintiff fit for her pre-accident duties.
I am satisfied, as I have said, that the plaintiff’s ongoing symptoms resulting from the two accidents formed part of the reason for her leaving her employment at the National Archives. I am satisfied that her ongoing symptoms resulted in a reduction of earning capacity, but it is not possible to calculate the reduction of that earning capacity in the way advocated by the plaintiff’s lawyers, being a simple comparison between the plaintiffs earnings at the National Archives and her subsequent earnings. The plaintiff considered that she was capable of undertaking full-time employment at the time she applied for her position at Target. Her duties in that occupation allow her greater freedom to move around and relieve her symptoms as required than would be the case in office employment. The plaintiff would probably be able to undertake full-time employment in an office setting, but with a corresponding increase in symptoms and the need for time off and treatment. Her symptoms would probably also affect her efficiency in an office environment, diminishing her prospects for promotion. Doing the best that I can with the evidence I have before me, I allow a buffer of $60,000.00 for past and future wage loss inclusive of interest and superannuation. This should be divided equally between the two claims.
In my opinion, both accidents contribute to the overall picture and damages should be apportioned equally to both accidents. It is clear from the continuing attendances of the plaintiff for treatment on her neck and back that she has suffered significant continuing pain since the first accident in 2007. I would allow general damages in a total sum of $120,000.00 to be apportioned equally to each of the accidents. Half of these amounts should be attributed to past pain and suffering. Interest on $30,000.00 at 3% annually for seven years from the first accident is $6,300.00. Interest on $30,000.00 at 3% annually for four years from the second accident is $3,600.00.
The medical evidence suggests that the plaintiff’s symptoms are likely to continue. I therefore allow for future out-of-pocket expenses as follows:
(a)For massage treatments, $8.00 per week, totalling $11,085.00;
(b)General practitioner consultations, $5.00 per week, totalling $6928.50;
(c)Specialist supervision, $5.00 per week, totalling $6928.50;
(d)Future investigations including x-rays and scans at a cost of $200.00;
(e)Medications at $10.00 per week, totalling $13,857.00.
This should be divided equally between the two claims.
In my opinion the evidence does not support any claim for past or future domestic assistance. The plaintiff gave no evidence of receiving domestic assistance as a result of any injuries suffered in either accident. She continued to share domestic duties with other members of her household after both accidents, although it may be accepted that there are some domestic duties that are now performed more regularly by other members of her household.
The parties agreed on past out of pocket expenses in the sum of $6,869.70. This should also be divided equally between the two accidents.
I assess damages in SC 101 of 2010 as follows:
General Damages: $60,000.00
Interest: $6,300.00
Future Treatment: $19,499.50
Future loss of earning capacity: $30,000.00
Past out of pocket: $3,434.85
Total: $119,234.35
I assess damages in SC 406 of 2012 as follows:
General Damages: $60,000.00
Interest: $3,600.00
Future Treatment: $19,499.50
Future loss of earning capacity: $30,000.00
Past out of pocket: $3,434.85
Total: $116,534.35
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: Date: 11 September 2014 |
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