Helsham v Graffunder
[2001] QSC 492
•17 December 2001
SUPREME COURT OF QUEENSLAND
CITATION:Helsham v Graffunder & Anor [2001] QSC 492
PARTIES: DEBRA MAREE HELSHAM
(Plaintiff)
v
MICHAEL CARL GRAFFUNDER
(First Defendant)
and
SUNCORP GENERAL INSURANCE LIMITED
(Second Defendant)
FILE NO: S94/1999
DIVISION: Trial Division
DELIVERED ON: 17 December 2001
DELIVERED AT: Mackay
HEARING DATE: 30, 31 October, 1 November 2001
JUDGE: Dutney J
ORDERS:Judgment for the plaintiff against the second defendant in the sum of $153,855.31.
CATCHWORDS: PERSONAL INJURY – MOTOR VEHICLE ACCIDENT – QUANTUM – Pl sustained back, shoulder & neck injuries motor vehicle accident – Whether injuries resolved –Whether injuries restrict employment – Pl suffered adjustment disorder with depression – Time needed for pl to recover – Extent of voluntary care necessary.
COUNSEL: J Douglas QC with him AS Mellick for the Plaintiff
D McMeekin SC for the Defendants
SOLICITORS: SR Wallace & Wallace for the Plaintiff
Barry, Beaverson & Stenson for the Defendants
Dutney J: This action is concerned with quantum only. Nonetheless there is a serious contest between the parties on almost all issues.
Mrs Helsham was born on 19 April 1968 and injured in a motor vehicle accident on 18 February 1997. She was 28 years old. The injuries suffered by Mrs Helsham were to her neck, back and right shoulder. The neck and shoulder problems have persisted since the accident and have contributed to the plaintiff claiming presently to be severely disabled. In addition to the physical injuries the
plaintiff’s problems have been compounded by the fact that she has suffered a psychiatric reaction to her problems diagnosed as an adjustment disorder with depression.
The plaintiff has 4 children born 9 January 1991, 31 March 1993, 21 September 1994 and 11 June 1999. As can be seen, 3 of these children were born before the accident and 1 subsequently. Mrs Helsham was still breast feeding the youngest at the date of trial.
As at the date of trial Mrs Helsham was taking an extraordinary cocktail of drugs ostensibly to relieve pain and depression. This consists of Panadine Forte, Digesics, Panalgesics (eg Fiorinal), Serapax (alepam), anti depressants (efexor xr), Endone, Panamax and Paroven. She is also said to be going to commence anti-inflammatory drugs once she finishes breast-feeding.
The medical evidence was uniform in this respect. The combination of drugs taken by the plaintiff had no medical justification and was likely to have harmful long-term consequences. Dr Chalk, the defendants’ psychiatrist said in evidence that the effect of the drugs would be as follows:
“It would be likely to – could tend to contribute towards someone being somewhat dopey or – not drowsy but sort of dopey and having difficulty in organising themselves. They may be sort of somewhat dulled in their cognition. They would be also perhaps finding it difficult to think and to get themselves organised because really if one’s taking a large amount of codeine phosphate and a narcotic analgesic which tend to cloud the central nervous system rather than help clear thoughts and I just – the concern is that she is also taking a fairly small dose of anti-depressants which, whilst they may be helping her mental state, it would seem to be overshadowed by the other medication she’s taking.”
Mrs Helsham’s complaints at present may be summarised as follows. She complains of constant pain in the right side of her neck. The pain is aggravated by any movement, driving, repetitive rotation of the neck, maintenance of a fixed position for long periods or maintenance of an extended position. Flexing her neck also causes pain. She suffers migraines.
Mrs Helsham complains of constant right shoulder pain. It radiates down the arm to the elbow during the morning and by afternoon further down the arm and into the fingers. If Mrs Helsham rolls onto her right side while sleeping this wakes her because the pain becomes particularly intense. The range of movement of her right arm is said to be limited to about 30 degrees away from her body and 30 degrees in front. She has no capacity to move her right arm backwards from the vertical position. The shoulder is stiff and she cannot lift any significant weight with her right hand or arm. She has to support her right arm with her left. Any activity or movement results in aggravation which takes three or four days to settle.
Mrs Helsham complains of tiredness in her left arm from overuse. She is naturally right arm dominant.
Mrs Helsham complains of occasional lower back pain aggravated by cold weather, sitting supporting her right arm and sleeping in an awkward position. Bending over a bath or to the children aggravates her back pain.
I was not particularly impressed by Mrs Helsham as a witness. Where it was possible to obtain independent verification of her evidence it was often inconsistent with her evidence. Examples with which I will deal include the real degree of stiffness and mobility in Mrs Helsham’s shoulder, the hours of paid help she received as compared with what she claimed to Suncorp to have received and the hours of additional unpaid help she needed. In all of these areas I found Mrs Helsham’s evidence unsatisfactory.
As I have indicated above, at trial Mrs Helsham gave evidence as to the very restricted range of movement in her shoulder. Mrs Helsham had seen three orthopaedic specialists for either medico legal or treatment purposes. Dr Shaw was for most of the pre accident period Mrs Helsham’s treating surgeon. He had seen her on 20 occasions over three years and had operated on her shoulder in September 1999. On a second occasion, in February 2000, he had Mrs Helsham anaesthetised for the purpose of a further surgical procedure but discovered prior to operating that under anaesthetic he could move her right arm without restriction through a full range of movement. As a result, Dr Shaw terminated the procedure on the basis that there was no residual orthopaedic injury to the shoulder.
Dr Rowan saw the plaintiff on three occasions for treatment. He indicated that he gave her the “benefit of the doubt” in assessment of her claimed injuries. Dr Rowan was not aware of what Dr Shaw had discovered on examination under anaesthetic in February 2000. Accepting Dr Shaw’s findings, however, Dr Rowan agreed there was no further shoulder injury.
Dr Duke saw the plaintiff once for medico legal purposes. Dr Duke attributed the plaintiff’s claimed symptoms in her right shoulder to the neck injury. He based that in part at least on the plaintiff’s location of her pain in the armpit. This was not the location given to either of the treating surgeons. Dr Duke agreed that in light of Dr Shaw’s findings he did not disagree that any shoulder injury had resolved. Dr Duke considered that the full range of movement under anaesthetic observed by Dr Shaw when compared with Mrs Helsham’s presentation to him was indicative of embellishment of symptoms. He thought it was indicative of an absence of significant shoulder problems. Dr Duke could think of no logical reason why Mrs Helsham’s claimed restriction in movement would have decreased from the range of 90 degrees he noted when he saw her to the range she claimed to have when giving evidence.
As to whether the neck injury is still causing problems for the plaintiff there is also reason for scepticism. Throughout the period of his treatment Dr Shaw records only one reference relating to the neck and that is to neck stiffness in April 1998. I accept however that the plaintiff has some residual difficulty emanating from her neck.
None of the Orthopaedic specialists supported the plaintiff’s claimed inability to do housework or to do work of the type Mrs Helsham claims she was interested in. All considered she should be capable of work not involving repetitive arm movement or overhead work.
The psychiatric evidence was uniform. Both psychiatrists who gave evidence agreed that the plaintiff was suffering an adjustment disorder with depressed mood. Neither regarded the plaintiff as having received appropriate treatment for the condition and each believed that with such treatment there would be significant improvement within a few months notwithstanding the long standing nature of the condition. Neither psychiatrist supported a claim that there was a psychiatric basis for the claimed inability to move the right arm. Both psychiatrists rejected the diagnosis of a pain disorder. Neither psychiatrist considered that the plaintiff’s psychiatric condition would prevent her doing housework, study or working outside the home. Each agreed that the medication the plaintiff was taking was contributing to her problems. The description of the effect of the medication given by Dr Chalk and set out above was consistent with the evidence of Mrs Helsham’s general behaviour and with my observations of her.
I accept that the plaintiff suffered the injuries she described in the motor vehicle accident on 18 February 1997. I accept that these caused pain and disability for a period but I am satisfied that to a large extent the physical injuries have now resolved. I accept that the plaintiff has suffered and continues to suffer from a moderate depressive condition and an adjustment disorder. I accept the evidence that with appropriate treatment these conditions can be expected to resolve within 12 months. I do not accept that the plaintiff’s present disabilities are such that she cannot work either in or outside the home. She has some residual muscular problem in her neck and her ability to work overhead is limited.
From September 1999 until April 2001 the plaintiff was provided with paid household help (“carers”) by Suncorp. The defendant led evidence to establish that the plaintiff had misrepresented to Suncorp the hours worked by these carers. It was alleged that the carers signed blank claim forms, that the plaintiff on occasions over-claimed the hours and retained for herself the over-payments. These serious allegations relied in the main on the evidence of a Ms Burley who was one of the carers and on a calendar kept by her which became exhibit 62. I am satisfied on the balance of probabilities that Ms Burley did not work the hours sometimes claimed on her behalf by the plaintiff and that her own records are more likely to be accurate. Some support for the defendant’s contention also comes from the evidence of Ms Porter. It follows that the plaintiff’s diary allegedly recording care provided to her is not a document on which I am prepared to rely. I do not accept that the diaries are either reliable or contemporaneous.
The plaintiff’s claim for unpaid past care is enormous. In addition to the paid carers the plaintiff claims to have required over 3,400 hours of unpaid care from September 1999 until trial. By way of illustration the evidence discloses that in February 2000 the plaintiff was receiving 10 hours of paid care each day. In addition she claims a total of 153.5 hours of unpaid care. In January 2000 the plaintiff was also receiving 10 hours paid care per day. In addition she claims 184 hours of unpaid care. In March 2000 the unpaid care claimed is 216.5 hours on top of the 10 hours per day paid for by Suncorp. These figures represent 6, 5 and 7 hours per day extra in the three months. The figures are taken from the schedule to the quantum statement and do not coincide exactly with other lists of hours claimed. The inability to consistently calculate hours claimed is a concern where they are allegedly taken from contemporaneous diaries.
I do not accept that this claim for past care can be substantiated. Apart from my unwillingness to accept as accurate much of what the plaintiff says even if apparently recorded in a diary kept by her, there is no medical justification on the evidence for this level of intensive assistance. During the periods the paid carers, Ms Burley and Ms Porter, were in attendance they observed Mrs Helsham either resting or working at her computer for an hour to an hour and a half at a time. This is despite saying on page 12 of her quantum statement that she can now no longer do her husband’s paperwork. The plaintiff apparently did nothing of a housekeeping nature while the carers were present. There is no medical support for such a total level of incapacity.
The claim seems to include everything done for the plaintiff by her mother after the birth of the youngest child despite the plaintiff conceding that she would have expected her mother to provide assistance at such time even if she had not been injured.
The hours claimed seem to fit the availability of people to do the hours. From June 1997 until December 1997 Mrs Helsham and her husband lived in Darwin. It is not possible on the evidence to identify what care is claimed for that period specifically but exhibit 75 shows that in the two and a half years from the accident to August 1999 a total of 1342 hours were claimed. From August 1999 until October 2001, a shorter period, a further 6,746 hours care including the paid care provided by Suncorp is said to have been provided. I cannot accept that the need for care has increased more than 500% in the latter period when the medical evidence is that the symptoms should have largely resolved. The plaintiff’s diaries as summarised in the plaintiff’s quantum statement apparently record 3,401 hours of unpaid care from late September 1999 until trial despite the fact that for much of that period the plaintiff was being provided with up to 10 hours care a day by Suncorp. In the end I reject the evidence of the plaintiff concerning past care and the need for future care. A good illustration of care being claimed to fill available hours can be seen by comparing the hours of unpaid care claimed for May 2000 during which month Suncorp was providing an additional 10 hours per day and May 2001, the first month no paid care was provided by Suncorp. In 2000 the hours claimed total 153.5 compared with 149 in 2001. In my view the plaintiff has taken advantage of every contribution of time offered by any person towards the care of her children or the maintenance of her home and claimed compensation for it with no regard to whether such assistance was necessary or not. I recognise that some care would have been required and will be likely to be required for a period into the future but in the absence of credible evidence I will have to do the best I can in a global sense. I consider the need for care would have been greatest immediately following the birth of Mrs Helsham’s 4th child and after the surgery in September 1999.
There is a substantial claim for future economic loss on the basis that the plaintiff would by now have become a teacher. For reasons I will now explain I regard this outcome as extremely unlikely.
The plaintiff’s history of tertiary study is poor. The plaintiff completed Year 12 in 1985. Unhappy with her TE score she said that she repeated four subjects at Hubbard’s Academy in Brisbane in 1986. The certificate exhibited to her quantum statement shows she received grades of 4 for English, 4 for Ancient History and 3 for Economics in 1986. There is no reference to the 4th subject. In 1987 Mrs Helsham enrolled in an Associate Diploma of Business (Accounting) at Mackay TAFE. She enrolled in 15 subjects and received 1 honours grade, 2 credits, 11 passes and 1 fail to sit. In 1988 Mrs Helsham transferred to the Capricornia Institute of Advanced Education and enrolled in a Diploma of Teaching (Primary). She enrolled in 9 subjects receiving 4 passes, 3 grades of pass/fail and 2 fails.
In 1989 Mrs Helsham transferred to the Darling Downs Institute of Advanced Education where she enrolled in a Bachelor of Business. She failed to complete any of the 4 subjects commenced. Mrs Helsham re-enrolled at DDIAE in 1990, 1991 and 1992 unsuccessfully attempting 2 subjects in 1990, 4 subjects in 1991 and 2 subjects in 1992.
Mrs Helsham has no significant work history. She had full time work in an administrative capacity at the Mackay Base Hospital in 1989. She worked for a family business in Mackay part time as a tour guide and bar attendant in 1990.
Mrs Helsham’s first child was born in January 1991.
In 1996 Mrs Helsham enrolled in an Associate Diploma of Business (Accounting) at the Mackay TAFE with which she persevered for the year. In 1997 she enrolled in a Bachelor of Arts intending to study Japanese at the Central Queensland University but suffered her injuries early in the year. Mrs Helsham had no prior knowledge of Japanese.
The history shows that Mrs Helsham was unable to complete a single course in 10 years of study prior to the accident. While Mrs Helsham has explanations for failing to complete courses and I accept that they may be valid, the history does not suggest any particular commitment to study. Many students with similar distractions but higher motivations successfully complete courses. If one combines the history with the family’s move to Darwin for six months in the latter half of 1997, the subsequent move to Moranbah, the existence of 4 children including one bourn in 1999, Mrs Helsham’s evidence that she and her husband had plans to travel and the fact that Mr Helsham’s work took him away from home regularly during 2000 I consider the likelihood of Mrs Helsham having completed the qualifications for being a teacher or even a substantial part of them by trial if the accident had not intervened as low. Because she is still breastfeeding and because of the number of children she has I consider the most likely outcome if no accident had intervened would have been that Mrs Helsham would have entered the workforce in some part time capacity at some time over the next two years.
The evidence of the medical practitioners is that there is now no reason why Mrs Helsham could not successfully complete the teacher-training course if she was sufficiently motivated.
Mrs Helsham is, in my view left after appropriate psychiatric treatment with a modest disability affecting her ability to do overhead work. At most she has a
slight disability in the open market. The evidence suggests that should she train as a teacher that disability can be accommodated.
Mrs Helsham has large claims for past and future medical and therapy expenses and drugs. For the future the evidence is that the drug regime she is on is entirely inappropriate. The evidence is that cortisone is not a long term treatment option because of its corrosive impact on the shoulder joint. Mrs Helsham has had an extraordinary number of visits to physiotherapists, naturopaths, masseurs and chiropractors. Little of this seems to me to be justified by her condition. Indeed, Mrs Helsham claimed that visits to a physiotherapist resulted in her feeling unwell and being unable to do much for the balance of the day but lie down. Her diaries continually record the negative effect of physiotherapy. Despite this she seems to have been attending physiotherapy on average a couple of times a week over an extended period. Some of this was recommended by Dr Shaw but more recently it was not. While accepting that Mrs Helsham should be compensated for what she has actually spent if it is causally related to the injuries she suffered I can see little justification for the huge number of attendances which have apparently had no positive effect and a noticeable negative effect. I do not intend to allow the future claim for the inappropriate medication, the physiotherapy, massage or chiropractic sessions, the cortisone injections or the naturopath. I propose to allow the cost of attending a pain clinic and the psychiatric therapy. I propose to allow for future anti depressant medication.
There is a large claim for travelling. The bulk of this is related to attending a GP in Mackay. I can see no reason why the defendant should be required to meet the cost of attending doctors in Mackay when GPs are available in Moranbah. In fact, Mrs Helsham also attended local GPs on many occasions. In any case many of the trips to Mackay were multi purpose to shop or for the plaintiff to visit her mother rather than for the single purpose of attending a doctor.
The plaintiff claims the cost of a new car. She says she was told by Dr Shaw that she would not be able to drive the existing family car. Dr Shaw said he did not give such advice and I accept his evidence. The existing car was a 1995 Nissan Patrol bought second hand in 1998 for $35,000.00. The replacement was a new Mazda MPV wagon bought June 2000 for $49,860.00. No evidence was led to establish the price comparability of these vehicles when new or to establish that this was not simply an upgrade at the defendant’s expense. Nor was evidence led as to the value of a five year old Mazda in June 2000 to determine whether it would have cost any more than the $23,000.00 received by way of trade in for the Nissan. There was no evidence, except for a few general lines in the plaintiff’s diary suggesting an appropriate second hand vehicle could not be obtained. I do not consider the defendant is liable to provide a new car to replace one five years old even if the change of vehicle is otherwise reasonable. The plaintiff claims that the change of vehicle was necessary for 2 reasons. Firstly she could not turn her head to reverse the Nissan. I find it difficult to see how a change of vehicle could assist in this. Secondly, the new vehicle has lighter steering. Mrs Helsham’s diary for the period after the purchase of the new car confirms that she still found driving difficult. In the absence of acceptable evidence I am not prepared in this case to assume in favour of the plaintiff that she has acted reasonably in acquiring a new vehicle. I will allow something modest on the basis that there is usually some changeover cost in changing vehicles.
In the end result I award the following damages:
Pain and suffering 40,000.00
Interest on $30,000 @ 2% for 4.8 years 2,880.00
Past Economic loss nil
Future Economic Loss[1] 30,000.00
[1]Based on a return to the workforce in some capacity within the next 6 months if the accident had not occurred. As a result of the accident it assumes a minor disadvantage on the open job market and a probable period of psychiatric therapy of up to a year before returning to work. This is a global sum and incorporates superannuation.
Past care – unpaid[2] 20,000.00
[2]Equates to roughly 1 hour per day average for the whole period since the accident. This is in addition to over $50,000 in home support paid for by Suncorp. This is a global award on the basis that there is no evidence which I am prepared to accept as to what unpaid care was in fact required.
Interest on past care @ 4% for 4.8 years 3,840.00
Future Care[3] 13,104.00
[3] I have allowed an arbitrary sum based on 1 hour per day for the next 24 months.
Special damages (excluding travel)[4] 13,647.35
[4]As per exhibit 51 excluding travel and replacement car.
Interest on $11,083.10 @ 4% for 4.8 years 2,127.96
Travel[5] 3,000.00
[5] I have disallowed a little over half the cost of travelling to a GP in Mackay.
Interest on travel expenses @ 4% for 4.8 years 576.00
Future medical
-pain clinic 14,000.00
-psychiatric therapy 4,680.00
- anti depressant medication 2,000.00 20,680.00
Change over cost of car including interest 4, 000.00
Total153,855.31
I give judgment for the plaintiff against the second defendant in the sum of $153,855.31.
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