Hewett v Hillier No. DCCIV-99-40423

HEWETT v HILLIER
[2000] SADC 130

Judge D. Bright
Civil

This is an assessment of the damages suffered by the plaintiff as a result of a motor vehicle accident on 17th December 1994. Liability in respect of the accident was determined, after hearing evidence, by a magistrate. He ordered that the plaintiff receive 70% of her damages to be assessed. The matter was then transferred to the District Court. Both parties accept that finding and expressly waive any argument that the matter was not properly removed to this court.
The plaintiff was driving an old Toyota Celica in a northerly direction along a street in Mt. Gambier and was making a right turn into the driveway of her house. She was struck by a heavy motor cycle travelling in the opposite direction. The configuration of the road, which made it hard for her to see the motor cycle, and the extent of damage to her car, which suggested excessive speed on the part of the defendant, led to the otherwise unusual finding on liability.
The plaintiff believes that her car was literally lifted from the ground and pushed a few metres to her left. Photos show the damage to have been extensive. Without drawing any detailed conclusions, the impact was clearly violent enough to have been capable of causing the injuries complained of. Whether, in fact, it did so is the basic dispute between the parties.
The plaintiff believes that she struck her head on the internal rear vision mirror. As neither door to the car could be opened, she was extricated through the driver’s side window. She was shocked and upset. She had been taken completely by surprise and was in no way prepared for the impact. She was wearing a seat belt and, as her car was pushed to the right, would have moved left relative to the interior of the car. It is likely that she did so with considerable force.
The plaintiff is a slim woman, born on 4th July 1972. She says that, prior to the accident, she enjoyed good health. She had been an accomplished athlete. She had had vigorous employment. There is no evidence of any relevant pre-existing physical problem.
Virtually at once she was aware of a headache and of pain in her low back. Shortly afterwards, her mother arrived at the scene and took her to the local hospital, where she was diagnosed as suffering from a muscle strain in her low back. She had a few treatments by a physiotherapist. She says that she got very little relief. She saw G.P.s. at her local practice. No further treatment or investigation was arranged. It was assumed that she would recover completely in the relatively short term.
Contrary to that expectation, she says that she has never improved much. She says she has had virtually constant pain in the low back. On 5th October 1998, for the first time, an MRI was taken. It revealed “degenerative changes” in L4-5 and L5-S1 discs and a “small central disc protrusion” at L4-5, consistent with an annular tear at the rear of the disc and towards the left side. There is no dispute that such a condition can be associated with low back pain of the sort described now by the plaintiff.
The question is whether that condition was caused by the motor vehicle accident, or by other events between the time of the accident and the MRI. Probably the period can be narrowed to the date on which the summons in this case was issued, by which time she was certainly alleging low back problems. That was on 18th February 1997. One might reasonably guess that the summons was not issued on the first day on which the plaintiff spoke to her solicitor. It was not about to be out of time. Nevertheless, that leaves a period of a little over two years during which some other event may have occurred. There is no specific evidence of any change in the plaintiff’s symptoms between 18th February 1997 and the MRI of 5th October 1998.
If it is true that the plaintiff did suffer continuous low back pain after the accident, it is probable that that was the cause of it. If she had a significant pain-free period, it is argued that one should look to some later event which brought that to an end and which is responsible for the bulge in the disc. In determining whether or not the plaintiff did suffer continuous pain, one is almost entirely dependent on her. Her truthfulness is crucial. It is clear that she was not accurate in everything she said in evidence. Can I trust her on this crucial matter?
At the time of the accident, she was with a partner who seems at least to have been difficult. She had odd days off from a Timbertech course in which she was participating to enable her to deal with these problems. After the accident she continued to have odd days off, but says that she needed them because of back pain. It was a government sponsored course to train her in aspects of the timber industry to equip her to work in timber mills. Her training included training in the use of a chain saw, though she says she was only asked to use a small one. She says she was pressured by her course supervisor not to take time off - she was being paid for, and was required to attend.
It is doubtful that she explained her problems - and there is no reason to doubt that, in those early days, she had some. She says that she accepted the expectation that she would soon recover and did not want to prejudice chances of future employment by reporting back trouble. A fellow student from the same course was called. She had been unaware that the plaintiff had any problem with her back.
The plaintiff was found work in a mill at Nangwarry and moved to that town with her partner. Her work was pretty hard. With another worker, she had to pick up wet sheets of veneer and lay them onto other sheets of wood. While the sheets were not very heavy, the work was rapid and continuous, with a great deal of lifting and twisting.
She says that, though she did the work, it caused back pain. She remained in this job until December 1995 - almost a year. She evidently made no complaints about her back - at any rate, there is no record of any official kind and fellow workers do not now remember any, though one commented that everyone got sore backs. The plaintiff gave up this work.
In chief she gave the impression that this was mainly because of back pain, though partly because of problems that had arisen with other workers. In cross examination it was revealed that those problems must have been rather severe. She had told me that, while at the mill, she had foolishly been induced by per partner to use amphetamines. In cross examination it became apparent that she broke and entered at least two houses in the town. She said that she did so in error, believing that her dealer had given her instructions on where to pick up drugs, but, in fact, going to the wrong houses.
Whatever the (dubious) merits of that explanation, she was caught inside a house by a fellow worker. I can readily imagine that serious trouble at work could have been anticipated. In fact, she did not go back to work.
In chief she told me that she left the South East and went to Queensland to try to sort out her drug problem. She went with her partner who had promised to reform. He did not reform and so she returned without him. She gave the impression of having gone and returned voluntarily and freely. She did not mention her arrest or the reason for it.
In cross examination it was obvious that she simply fled. She went to Port Pirie, where she was arrested and bailed to appear in Mt. Gambier. In breach of bail she fled to Queensland. After a warrant was issued for her arrest for non appearance at Mt. Gambier, her parents persuaded her to return and to face the music.
To her credit, she did so. For reasons that were not disclosed to me, after she had spoken to police, charges against her were dropped. She underwent medically supervised treatment for drug addiction. There is no evidence that she thereafter used amphetamines. She has continued to use marijuana.
It is obvious that these events are quite enough in themselves to explain her leaving the job in the mill. It may be the case that she also had some back pain. That is not documented. Without yet deciding the question, even if she did have pain resulting from the accident, I cannot attribute her loss of work to it.
She was away for about 3 months. It took about another 6 months to sort out her trouble with the police, to undergo drug rehabilitation and then to participate in a course to learn to be a waitress/bar attendant.
She then got work in a tavern at Mt. Gambier. Again, this does not seem particularly suitable for a person with a bad back. One would expect, e.g., to have to lift heavy trays. At least she could move around. She held this job from 15th October 1996 to 21st January 1997. In chief she said that it was only a “Christmas job”. In cross examination it came out that she was dismissed after being involved in a fight at the tavern with her partner. It may not have been her fault and she may not have been on duty, but it provides a more credible explanation for the termination of her employment than her suggestion that it was only a Christmas job. Again, she may have had back pain, but it was not for that reason that she lost her job, a job with which she was coping.
She next got work as a mail sorter for Australia Post (AP) at Mt. Gambier. She worked part time - about 2 - 3 hours a day, 5 days a week, for about 6 months. She has an aptitude for this work and does it well. Her supervisor regards her highly. She liked work at the Post Office as she could move around and bend and stretch. The weights were small.
During 1997 she borrowed a TENS machine from a friend. She found it helped, but, after a period, had to return it. Oddly, she made only a minor effort to obtain another.
For reasons never clearly explained, she was in debt. In chief she said it was to a bank for a car which she had given to her sister. In cross examination there appeared to have been debt to her father. In any event, she decided that she had to get more lucrative work to enable her to pay her debts.
At about this time her relationship with her present partner began. Without going into detail he noticed that certain activities appeared to cause her low back pain. He was a good witness and I accept him.
She decided to take a job at Bordertown in a meatworks. That work was rapid, she had long hours of standing and there was repetitive moderate lifting and twisting. Her partner followed her to Bordertown. One of the reasons I accept his truthfulness about her pain is that he did not seek to magnify the difficulty she had and regarded her work as fairly easy. Compared to his it may have been, but, in truth, it was hard work.
He used to massage her back to relieve pain often. Unsurprisingly, the first week or so in that job caused great pain. As she got used to it and developed her muscles, it improved. She says the old low back pain was always there. Despite that, she managed to do the work for about 15 months. She not only stayed long enough to clear the debts which had been the reason for the job, but also stayed on for a few months longer, as did her partner, in order to save for a better future.
Again, the emphasis in her evidence in chief differed from that in cross examination. In chief, she acknowledged a problem with a fellow worker of sexual harassment, but said that the main reason for leaving was her back. In cross examination it turned out to be a senior colleague, whose inappropriate approach had led to a fight with her partner. But for the harassment and the fight, I think she would have stayed longer. I accept her evidence that, although she was formally sacked, that was by arrangement, to shorten the period she would have to wait for the dole if she could not find new work. The decision that she and her partner leave was theirs.
In fact, because she had impressed her supervisor at AP, she was readily re employed in the post office at Mt. Gambier, where she continues to this day. She works whatever hours are available. Generally that is a base level of 20 hours per week, sometimes rising to about 30.
She is, technically, a casual employee, employed on repeated 3 month contracts. She continues to be well regarded. As long as people with her skills are needed. I expect she will be kept on. There is no suggestion that any problem in her back has made AP less willing to employ her. It is always possible that a less sympathetic regime will be introduced, or that technical developments will render her redundant. There is no evidence of that being actually foreseen.
It is the policy of her supervisor to rotate employees through various tasks in their successive 3 month contracts. At present the plaintiff is working at unloading and distributing to other workers large containers of mail sent down partly sorted from Adelaide. This she finds heavy. It is the first time she has done it. It is the first job at AP which has caused her to struggle.
Nevertheless, she is doing it and will complete this posting in about a month. As with all her other jobs, there is no formal documentation of complaint, nor evidence from fellow workers that she has ever been noticed to be in pain or difficulty. Again, her partner, whom I accept, confirms that she takes a couple of Panadein Forte tablets each day before work, that, in her present posting she is very tired and sore at night and that she is not keeping up with her usual household duties at all well.
Now that her problems have been aired in court with her supervisor, I think it probable that she will not again be given this particular task, but will be re-employed each 3 months for the foreseeable future in positions with which she can cope better.
At the same time as working with AP (but not during her present posting) she took work for about 20 hours per week, helping a family look after a disabled child. She developed a close bond with that child, whose mother eventually asked her either to work full time for her, or not at all. She chose to leave. Again, the cause for parting was not related to her back.
In my assessment, the plaintiff is a determined, persistent person, who is generally able to find work in an area and at a time when many others fail to do so. She has been prepared to work in jobs that are not easy. She has been prepared to take various training courses to fit her for work. She and her partner have plans to settle down and buy a house. She is a steady employee.
There was a period when, as it would seem, she fell in with a bad crowd and did things of which she is now very ashamed. There is nothing to suggest she has not put this behind her. In fact, I think that she is very determined to do so and that that explains why she was less than forthcoming in court about her troubles, until forced to tell in cross examination. She should have told me more freely, but I can understand her reluctance.
Her evidence was also coloured by an apparent effort to impress me with the effect of her back in losing various jobs when, although she may well have been in pain, it was not that pain which was the primary cause. I find it hard to know how deliberate that was. No doubt the whole emphasis in preparing the case was on her back. At the least, it makes it harder to assess the level of her disability.
It seems to me that the defence hypothesis stands or falls on whether there was ever a significant period during which she was free from pain, having recovered from the accident. Conversely, the plaintiff’s case depends on a finding that she always had pain, consistent with the disc bulge which was found later.
She is argued to be a quiet woman, not given to complaint, who simply soldiers on. She is said to have accepted the original diagnosis of muscle strain and the concomitant absence of much in the way of relevant treatment. Since shortly before beginning at the meatworks, her partner has been able to support her claim to have been in regular pain.
There is no evidence of any specific incident, other than the accident, which led to any alteration or exacerbation of her pain. There must have been incidents which could have affected a degenerate disc. There have been periods of work which could have done so. There is no evidence it did. She says the trouble began with the accident and has remained much the same ever since. She denies being aware of any new trauma or alteration to her symptoms.
Despite the reasons for caution which I have detailed, I accept her and conclude that it is probable that she did injure her L4-5 disc in the accident and that the appearance in the later MRI is the result.
However, there is no predictable correlation between what the MRI reveals and the precise level of disability or pain suffered by the plaintiff. It seems that many people may have similar looking bulges but be free from symptoms. Others will not be so fortunate. I must assess, largely on her evidence alone, how it has affected the plaintiff.
I accept that there is an underlying level of virtually constant pain. I expect that level of pain is increased when she works (or otherwise exercises), presumably broadly in proportion to the level of, in particular, bending, lifting and twisting. When the level of work is more than moderate, she gets pain sufficiently serious to cause her to take major analgaesics and to rest. She neglects duties at home which I am sure she would not otherwise neglect. I do not see her as a lazy person, hanging on any excuse to avoid work. She has, albeit with difficulty, coped with jobs which might have deterred fitter people. She has recently returned to netball at a social level. At school she had been a good player. She says she is now careful in her movements.
The bulge in her disc will not get better. It may stay the same, at least for a long time. There is a significant chance that, at some unpredictable time in the future, it will further degenerate, or some other incident will precipitate a worsening. Such incident may well be one which, but for the original injury, would have posed no problem. She will be wise to try to avoid work involving excessive bending, lifting or twisting. She will judge for herself what level of pain she can tolerate and select her activities accordingly. From time to time she will overdo it and will have periods of increased pain and incapacity.
If she is lucky, she will develop a greater tolerance for pain. If she is unlucky she may find that the bulge increases in size, even to the extent of requiring a discectomy. That could cost many thousands of dollars and involve at least 6 months off work.
If she has children, I expect her back will be painful. She may be restricted in how she plays with and raises them.
In short, although the future is not at all clear cut, she has been changed from a person free from disability to one who will suffer a fair bit of pain and who would be wise to restrict her area of employment. It appears that she was always destined for unskilled and semi-skilled manual work. In that field her disability is significant. There is no great dispute about the doctor’s expectations for her. They are reflected in my findings, but do not need to be set out at length.
Her counsel prepared a table showing that the difference between what she has actually earned in the last few years and what a comparator earned on the line at the timber mill where she worked soon after the accident was nearly $17,000. He acknowledged that the first couple of years were probably too turbulent for any meaningful comparison. In broad terms, it illustrates the difference between her part time work at AP and her full time work at the mill.
There is no evidence that the plaintiff’s condition is now different from what it was, say, when at the meatworks, or even at the mill. At least while she is as young as she is, she could probably still cope with that sort of work a good deal of the time. It would be at the cost of pain. It would increase the risk of further degeneration. In my view, relatively little has been lost to date which can be attributed to her back. I assess, on a broad axe basis, $5,000 for past loss.

In my view, the chances that she will deteriorate in future greatly outweigh those that she will learn to cope better, or not deteriorate This is particularly so if she attempts long term work like that in the mill or the meatworks - and that is the sort of work she is likely otherwise to have pursued.
She is not unintelligent. I hope that she will retrain herself to less vigorous employment. She is quite capable of doing so. Of course, she is left with limitations on the areas of work in which it is sensible for her to work. A discectomy at some time in the future might well alleviate pain, but it would not much alter the need for her to avoid the sort of work she should now try to avoid. Such treatment is unlikely to be offered until her condition gets significantly worse than it now is.
I should have noted that it has been her habit not to reveal to doctors examining her for employment purposes that she has any trouble in her back. Unless and until she becomes much worse, I expect that to continue. For this reason I do not expect her to suffer from employer prejudice, but she will, quite properly, limit herself in what work she applies for.
She is now 28. The value of $1 per week to her to age 65 or earlier death (at 5%) is $877. I do not purport to conclude that there will be a regular, predictable loss of $100 per week to this plaintiff, but I note that a loss of this magnitude would amount to nearly $90,000. It is some guidance.
More probably she will remain in her present 20 - 30 hours per week employment for the foreseeable future. But for her injury, I expect she would look for full time work. Last year she earned (nett) nearly $20,000. If I assume 50 weeks per year of 25 hours per week, that gives an hourly rate of about $16 per hour. A further 15 hours of work at that rate would generate $240 per week. At least when she finishes her present 3 month posting, she is, theoretically, able to do other work - as she did for a while. Again, this gives some guidance.
There are contingencies that she will retrain to get more lucrative work. There are contingencies that she will get worse. If so, it is not possible to guess when that might be. There is no reason to expect it in the immediate future, though it is possible. Equally, she may remain virtually unchanged for the rest of her life. There is little point in further reciting the obvious, but imponderable contingencies.
Doing my best to weigh them fairly, I assess future loss of earning capacity, as reflected in likely lost earnings, at $100,000.
Pain and suffering is to be assessed on the 0 - 60 scale. I fix the number 20. The multiplier for 1994 is $1,430. That gives a figure of $28,600 for non economic damages.
Special damages have been agreed at $400. In the future there will be a need for analgesics, perhaps occasional physiotherapy, and, possibly, for surgery. I assess future special damages at $1,000.
I summarise:-
Non economic loss $28,600.00
Special damages
past $400.00
future $1,000.00
Loss of earning capacity
past $5,000.00
future $100,000.00
TOTAL $135,000.00
The plaintiff is to have 70% of that amount, which is $94,500. I will hear the parties on interest and costs.

[2000] SADC 130

27 October 2000