Heal v Smith & NZI Insurance Australia Ltd
[2000] QDC 326
•15/09/2000
DISTRICT COURT OF QUEENSLAND
[2000] QDC 326
REGISTRY: ROCKHAMPTON
NUMBER: 71 of 2000
Plaintiff: KATHRYN MARY HEAL
AND
First Defendant: REGINALD THOMAS JOHN SMITH
AND
Second Defendant: NZI INSURANCE AUSTRALIA LIMITED
REASONS FOR JUDGMENT
HIS HONOUR JUDGE BRITTON S.C.
DELIVERED the 15 day of September 2000
This is a claim for damages for personal injuries sustained by the plaintiff as the result of a motor vehicle accident, which occurred on the 16th December 1993. The plaintiff was the driver of a vehicle, which came into collision with a vehicle driven by the first defendant and insured by the second defendant. Liability has been settled on the basis of an apportionment of 70/30 in favour of the plaintiff. My task then is to assess the quantum of the plaintiff’s damages.
The plaintiff was born on the 30th May 1967 so that she is now 33 years of age and at the time of the accident was 26. She was at the time a married woman.
A number of medical reports was tendered and Dr Macfarlane and Dr McMahon both gave evidence by telephone.
One of the reports which was tendered was from the Rockhampton Base Hospital dated 20th December 1995 (exhibit 7). According to that report the plaintiff was admitted to the hospital on the day of the accident. On arrival in the ambulance she was sitting up and talking appropriately and complaining of pain in the front of her head and apart from the shock of the accident she had no other complaints. On examination, there was a small right temporal haematoma but no other significant injuries were discovered. A subsequent CT Scan of her head confirmed only a soft tissue swelling in the right parietal region and no other intracranial pathology. She was admitted to hospital for continued neurosurgical observation and was discharged the following day without complications. The principal issue which was litigated was in relation to the extent to which the plaintiff’s knees were injured in the accident.
The plaintiff’s evidence in chief in relation to quantum was largely reduced to writing in the form of quantum statement (exhibit 4). In that statement she said that immediately after the accident she could not move her right arm or leg due to severe pain. Her head was also throbbing badly. She said that she could not remember anything much about the ambulance trip or her admission and her next recollection was of waking up in hospital on the day after the accident. She said that severe bruising had begun to come out all down her right side including her head and both her knees had received cuts and were badly bruised. She said that when she was discharged from hospital she returned to her home and her body felt so stiff and sore she was unable to move much at all and after a couple of weeks she began to mobilise properly. She said that if she spent much time on her legs her knees began to ache quite severely. The stairs at home presented a severe challenge for her and she avoided using them as much as possible. She was unable to kneel and if she did so it felt as if someone was sticking knives into her knees. Due to this pain she said she was prevented from doing most cleaning duties in and around the home. She said that after she was discharged from hospital she went to her general practitioner Dr Harley Wilson and obtained a referral for physiotherapy. No report of Dr Harley Wilson was tendered nor was he called to give oral evidence. Further there is no report from a physiotherapist. The plaintiff said she undertook a number of physiotherapy visits in an effort to assist her with the pain in her knees. She found that this did not give her any relief and she discontinued treatment. She said she was consuming pain-relieving medication quite regularly in an effort to help her cope with pain in her knees.
The plaintiff said that in or about September 1996 her marriage broke down and she believed that this was as a result of the injuries that she had received in the accident. She was then left to cope on her own with 3 children aged from 12 to 16 years and she said that the extra workload increased the pain and discomfort she felt in her knees. She claimed that she was unable to interact with her children, as she was unable to play as effectively with them as she would have wanted to. The constant pain in her knees never allowed her to feel one hundred percent. She said that the pain in her knees had severely curtailed her enjoyment of life. She used to enjoy going for long walks with the occasional night out dancing but was unable to do any of these activities as the pain in her knees was quite severe after only about half an hour standing.
In relation to her work activities the plaintiff said that in the three years immediately prior to the accident she had worked only privately doing ironing for private customers. She estimated her income from this at $5,200 for the whole three year period from January 1989 to December 1991. At the time of the accident she was not working and after the accident she said she felt she could not work although she started with another person to take in ironing at her home. She said the set up was a small operation where she would collect ironing from customers and then do the work and deliver the ironing back. She said this lasted for a year. She said she worked 4 days per week and six hours per day and she recalled that the work stressed her knees and she suffered pain. She said that at one stage she was using a stool to sit on whilst ironing but found this did not work. It was difficult and her ankles swelled. She said that her work ironing dovetailed with work she undertook at the Rockhampton Base Hospital Canteen, which was cooking and serving. She said she tried to do this but the pain she suffered in her knees meant that she had to give the work away. After that she did not work again. She says she would, if she had been able to, have continued her ironing work. She worked at Consolidated Meat Group Meatworks for 3 days earning $691. The work involved standing and bending, lifting meat and packing and she said she just could not continue although she does not in her statement specifically attribute her inability to continue to her knees. However in oral evidence she said this.
In January 2000 the plaintiff and her new husband Mr Merton took a lease on a small corner store. In her statement the plaintiff said that Mr Merton was assisting her in managing and running the business. She said that he had to undertake any of the heavy work involved with replacing stock or generally running the business. The store allowed her sit down as and when needed and it enabled her to cope with the hours required to run it. In her oral evidence the plaintiff sought to minimise her involvement in running the shop. She said that she served occasionally and when asked what she meant by that explained that this was when her husband needed to go to the toilet. She was cross-examined on her involvement in the running of the store. She denied even doing the bookwork related to the business. She said that she spent possibly an hour per day on average in the store.
The plaintiff’s husband, Ronald Frederick Merton, gave evidence and in particular spoke of the running of the shop. He said that the plaintiff did a bit to help out with the serving and the amount of time she spent doing that varied from day to day depending on how busy they were. Under cross examination he conceded that she would probably spend a couple of hours a day at the counter doing work but that it would be quite artificial to suggest that the time spent was as little as an hour a day.
In evidence the plaintiff said that following an initial period when she had great difficulty as a result of her injuries everything except her knees settled. She said that prior to the accident she used to walk 9 kilometres every day but has never done it since. Several photographs were tendered (exhibit 6) and were said to depict injuries suffered by the plaintiff. One of them shows what appear to be cuts or abrasions to both knees. One appears to show some bruising to the right arm and another bruising to the right buttock. The plaintiff said that these photographs were taken possibly ten days after the accident.
Under cross examination the plaintiff said that she had the pain in both knees from the time at the accident onwards. She appeared to concede that after initial treatment at the Rockhampton Base Hospital she did not see Dr Harley Wilson until February 1994 when he prescribed an anti inflammatory, Voltaren. She also appeared to concede that she did not seek any further treatment for her knees until some years later. She conceded that it was possibly not until October 1996. The plaintiff was cross examined about the contents of her Personal Injury Notice of Claim pursuant to the Motor Accidents Act (exhibit 10). In particular, her attention was drawn to item number 27 on the fifth page of the document where she was asked to list all injuries sustained in the accident. In hand writing the following appears:
“Bruises cuts concussion – soft tissue swelling in right parietal region”
The document was dated the 25th March 1996 and signed by the plaintiff although the other handwriting was not hers. She confirmed that the signature on the document was hers but claimed to have no recollection of the document or of the document being completed by her solicitor. Her attention was also drawn to item number 48 on the form which asks the question:
“Have you lost income from self employment in your own business because of the accident?
and she confirmed that no information had been provided in response to that question.
At the outset of the trial, leave was granted to the plaintiff to file an amended claim in which an amendment was made to paragraph 8 of the statement of claim to add to the injuries previously particularised:
“(iv) injuries to both her knees”.
Prior to that, there was no claim in the statement of claim for injuries to knees.
Dr Macfarlane first saw the plaintiff on the 12th September 1996. The plaintiff told him that in the accident both of her knees hit the dashboard and were lacerated and a later stage a foreign body was removed from her left knee by her general practitioner Dr H. Wilson. On examination Dr Macfarlane found that the right knee had a full range of movement. There were some small scars over the front from the healed lacerations and he noted minor retro-patellar crepitus with some slight pain but no effusion. He said the anterior cruciate ligaments were a little lax and McMurray’s sign for a torn cartilage was negative. The left knee had some minor retro-patellar crepitus but was otherwise normal. Dr Macfarlane diagnosed a chondromalacia patellae of the right knee with damage to the articular or joint cartilage. He also diagnosed damage to the anterior cruciate ligaments in the right knee with sprain or strain or possible partial tear in continuity. He did not diagnose any condition so far as the left knee was concerned. He advised arthroscopy of the right knee. He said that the prognosis was for matters to remain as they were until she had appropriate treatment. He said there did not appear to be any clinical problems with regard to the left knee and no disability was anticipated in that knee. He said she appeared to have recovered from her head injury. He opined that she needed a little help around the house but in the future that she would be able to work in a shop without too much in the way problems.
Dr McMahon examined the plaintiff on the 31st January 1997 and the 2nd March 1999. She gave him a history of having no problems prior to the motor vehicle accident. She said that in the accident she received a direct blow to the front of both knees when the knees struck the dash. She had some little wounds over the kneecaps and said she had experienced significant anterior knee pain from day one. She had continued to experience problems from the time of the accident until he saw her. She complained of having significant ongoing bilateral anterior knee pain which increased and decreased in intensity. She said that her left knee was some what more troublesome than the right at the time when he saw her but she had shifted house two weeks prior to when he saw her initially and she said that this had stirred her knees up significantly. She complained of the pain anteriorly, medially and laterally in her knees and said it was increased by walking any distance and she was unable to crouch or kneel and could not run. She experienced significant increase in her pain with going up and down stairs. On examination he found tenderness all around both patellae and both medial and lateral joint lines were tender. He referred to an MRI scan which he had obtained and indicated that the scan was reported as showing some intrasubstance change in the medial meniscus on the right and some early fibrillation and irregularity of both patello femoral joint and articular surfaces. He opined that she had bilateral anterior knee pain which he said was quite common after a direct blow to the knees and in some individuals the pain could persist long term. He said that he believed that the plaintiff would have some permanent impairment from her knees which he rated at 3 percent of the whole person for each knee combining to a total of 6 percent of the whole person permanent impairment which he said he believed had been caused by her motor vehicle accident.
Dr Macfarlane did not at any time re-examine the plaintiff but provided a second report (exhibit 2) following review of certain documents and review of the previous file. One of the docs he reviewed appeared to be that a report of Dr McMahon (exhibit 3). He said that with reference to the MRI that the joint cartilage damage shown on the scan would be in keeping with a direct blow to the knee on either side. He agreed that a reasonable diagnosis would be of anterior knee pain and this would be in keeping with the previous clinical diagnosis of a chondromalacia patella of the right knee with damage to the articular or joint cartilage as well as damage to that cartilage also in the left knee. He opined that the plaintiff had 7% impairment of the left knee which converted to 3% impairment of the whole person and 9% impairment of the right leg converting to 4% impairment of the whole person. He said that these impairments were permanent. He opined that his previously expressed opinion as to job prospects remained and that the plaintiff would have persistent problems with regard to kneeling requiring a little gratuitous help around the house particularly with regard to any heaving lifting but that she should be able to work in a shop or office or in a factory doing sedentary or semi-sedentary type work without any great difficulties. He said it was not anticipated that there would be any loss of her normal working life as a result of the accident but some slight restrictions as noted.
Under cross-examination Dr Macfarlane said that he had accepted that the plaintiff had no problems prior to the motor vehicle accident but had problems after that and that she had suffered an injury, a direct blow to the front of her knees at the time of the accident which would be in keeping with the clinical findings and development of a chondromalacia patellae. He agreed with the proposition that one would expect the symptoms to be most severe early and then settle down whereas in the case of the plaintiff it appeared that no significant symptoms were mentioned to doctors until the earliest February 1994 and then much later in 1996. He conceded that he could not exclude the possibility that the plaintiff's knee conditions related to natural processes but was still of the opinion that the trauma was the major factor in her knee problems. He agreed that the plaintiff would be assisted if she had an arthroscopy in that that could assist to identify any loose fragments in the knees and enable the knee to be treated and that he would expect a better outcome for her although that did not always occur.
Dr McMahon did not agree with the proposition that the fact that the plaintiff apparently made no complaint at the hospital about problems with her knees was inconsistent with her having suffered any significant trauma to the kneecaps. When asked about the fact that it appeared that she had not seen her general practitioner until February 1994 and then had not sought any further medical attention until 1996 he said that he did not know whether she had significant pain or she was putting up with it. He said that he did not see any evidence of the plaintiff having a natural degenerative condition. He did agree with the proposition that he would expect the plaintiff to have the more significant symptoms soon after the accident and that they would tend to settle over time. When asked about his diagnosis of the cause of the plaintiff's bilateral knee pain he said that it was patello femoral pain and that the reason the people experience anterior knee pain after a blow to the knees was uncertain. He said that anterior knee pain was a descriptive term and it was what very frequently happened after a blow on the front of the knee. He agreed that some people do, for reasons they don’t understand, just develop anterior knee pain. He agreed also that the reason he had concluded that the plaintiff's anterior knee pain probably related to the accident was because of the history he was given of severe knee pain from day one.
Interestingly, Dr McMahon said that he did not see any reason why the plaintiff within a year or so of the accident should not have gone back to work in an ironing business where she was working four days a week six hours per day.
In my view, the real difficulty for the plaintiff in satisfying me that her present knee problems are causally related to the accident arises out of her failure in the Personal Injury Notice of Claim to indicate that she had suffered an injury to her knees in the accident or that she had lost any income from self-employment because of the accident. There is also the inconsistency between her evidence as contained in her Quantum Statement in paragraph eight that both of her knees were badly bruised and the photograph which is one of the set of five in exhibit six which depicts her knees but does not appear to depict any bruising to them although two of the other photographs depict bruising to other parts of her body and when her evidence was that the photographs were probably taken about ten days after the accident. There is also the fact that until the Amended Statement of Claim was filed on the morning of the trial there was in the pleadings no claim that the plaintiff had injured her knees in the accident.
It is clear on the medical evidence that the plaintiff does suffer from some signs in her knees and both of the orthopaedic specialists who gave evidence were of the view that the plaintiff does have a disability in her knees caused by a direct blow to the knees in the accident. Were it not for the absence of any mention of any injuries to her knees in her Personal Injury Notice of Claim and in the original pleadings I would be prepared to accept the plaintiff's evidence that she did have knee pain from day one and I would be prepared to find that this was caused by the accident. After the plaintiff was cross-examined in relation to the absence of any reference to a knee injury in her Personal Injury Notice of Claim she did not in any way attempt to explain either in cross-examination or under re-examination how this came about.
The plaintiff's evidence as to the dates between which she carried out the ironing business is not precise. She does say that the business lasted for a year and she said that the ironing work “dovetailed” with the work she undertook at the Rockhampton Base Hospital Canteen. Again there is no precise evidence as to when she worked at the Rockhampton Base Hospital Canteen. She does say in paragraph 24 of her Quantum Statement, however, it has been 4 years and 11 months since she gave up ironing because of her injuries. This means that she ceased her ironing business in about September 1995 which was before the Personal Injury Notice of Claim form was completed. One wonders then why there was no claim made in the document for loss of income from self-employment in her own business because of the accident.
In all of the circumstances then I am not satisfied on the balance of probabilities that the plaintiff suffered any injury to her knees as a result of the accident which has led to the disability which the orthopaedic specialists say she now has. She clearly had some lacerations to her knees and there is her evidence that she saw Dr Wilson probably about three months later and was prescribed anti-inflammatory medication. Even if the plaintiff's present knee pain is causally related to the accident, I am not satisfied that she has suffered pain or disability to the extent that she now claims and I am not satisfied she is unable to work in any capacity for which she is qualified by experience such as ironing or working in a shop.
In those circumstances the amount of damages to which the plaintiff is entitled is minimal. In her evidence, she does not complain of any ongoing problems other than those related to her knees.
Again the evidence as to the injury to the plaintiff's knees is not precise although it does appear that she was having some difficulty as a result of the injury to her knees at least until February of 1994 and that she at that time had some treatment from Dr Wilson. It is not clear what that treatment was other than she was prescribed Voltaren. It appears that the plaintiff probably recommenced her ironing business in about September or October 1994 because she said that she conducted the business for about a year and that she ceased to carry out the ironing business about four years and 11 months ago. There is no express evidence from the plaintiff that but for the accident she would have engaged in ironing work or sought other work during the period between the date of the accident and when she commenced her ironing business. However, it seems to me that it would be proper to award the plaintiff a small amount on a global basis for loss of earning capacity during that period and I would assess that loss at $2000. This would bear interest at 5% per annum form the date of the accident to the present time.
So far as pain suffering and loss of enjoyment of the amenities of life are concerned, I assess the plaintiff's damages on the basis that she did have some ongoing problems with her knees at least until she saw Dr Wilson in February 1994 and probably for several months after that but that whatever her knee problem was which was causally related to the accident the symptoms then subsided and that her present knee problems are not causally related to the accident. On that basis I assess the plaintiff's damages at $15 000 all of which would bear interest at 2% per annum from the date of the accident to the present time.
I accept that during the period from the date of the accident to at least up until about the time she saw Dr Wilson and for a short time thereafter the plaintiff would have required some domestic assistance. Doing the best I can on the evidence before me, I would assess the amount of assistance she required as being seven hours per week from the date of the accident for a period of six months, that is a total of 182 hours. I was informed that there was agreement between the parties that the appropriate rate for assessment of Griffiths v Kerkemeyer damages was $10 per hour in respect of pre-trial loss. This results in an award then of $1820 which would bear interest at 2% per annum from the date of the accident to the present time. There is in my view no basis for any award for future loss on the Griffths v Kerkemeyer principle.
I was informed also that there was agreement in relation to the plaintiff’s special damages in the sum of $1669.75 and it does not appear that there is any claim for interest in respect of any part of that sum. In my view, there is no basis for any award for future pharmaceutical expenses. So far as loss of Superannuation is concerned, it does not seem to me that having regard to the amount of which I have assessed for past economic loss and the basis for which I have assessed that there should be any separate award.
In summary therefore my assessment of damages is as follows:
Pain and Suffering $15 000.00
Interest on $15 000.00 at 25 for 6.75years $ 2 025.00
Past Economic Loss $ 2 000.00
Interest at 5% for 6.75 years $ 675.00
Special Damages $ 1 669.75
Griffiths v Kerkemeyer (past) $ 1 820.00
Interest at 2% for 6.75 years $ 245.70
AT TOTAL $23 435.45
After apportionment on the agreed basis the plaintiff will be entitled to an award of $16 404.82.
There will be judgment for the plaintiff against the defendants for $16 404.82.
G.T. BRITTON S.C. DCJ
0
0
0