Hicks v Snaith No. DCCIV-96-512 Judgment No. D3541

[1996] SADC 3541

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Russell

Hearing

21/11/96 to 25/11/96, 28/11/96 to 28/11/96.

Catchwords

Torts - Assessment of damages - Personal injuries - closed head injury - Whether closed head injury unmasked clinical expression of Alzheimer's disease.

Representation

Plaintiff GRAHAM JOHN HICKS:
Counsel: MR P DAY - Solicitors: MELLOR OLSSON

Defendant DONALD SNAITH:
Counsel: MR R SOULIO - Solicitors: WARD &; PARTNERS

DCCIV-96-512

Judgment No. D3541

20 December 1996

(Civil)

HICKS V SNAITH

CIVIL

JUDGE RUSSELL

The plaintiff is a 53 year old man who was involved in a motor vehicle accident on 24 June 1993 when he was 49 years of age.

The defendant admits that the accident was caused by his negligence and the plaintiff claims damages for personal injuries which he alleges were caused to him as a result of the accident.

The plaintiff was the eldest of seven children.His father died of cancer some 20 years ago.His mother is now 72 years of age and in good health.The plaintiff left school at the age of 14 years.His father got him a job in the baking industry and he served 7 years as an improver.On the successful completion of that improvership he found employment as a baker with Oldfields. However he did not like the trade and went to Woomera where he worked as a labourer for 7 years assisting tradesmen plumbers and painters.

The plaintiff then returned to Adelaide to work as a building maintenance man with the Department of Civil Aviation.He assisted carpenters, plumbers and painters at all airports throughout South Australia.

At some stage the plaintiff transferred to the security staff of the Department at Adelaide Airport and eventually rose to the position of a Shift Supervisor of the security staff.

On the evidence, I accept that the plaintiff was both proficient and efficient at his work as a supervisor in the security department.He retired on 5 April 1994, when he accepted a redundancy package offered by the Department upon a once only restructuring of the staff by his employer.He received a redundancy payment of $40,743 in addition to all other entitlements under his contract of service.No further redundancy packages have been offered, to date, in the Security and Safety Section.

Seemingly, the plaintiff had become aware by then of difficulties that he perceived he was beginning to experience with his memory and he accepted the package, the proceeds of which enabled him to purchase a cottage at Gawler, where he now lives.

I pause here to mention that the plaintiff has been married twice and now lives with a lady he describes as his fiance, who was present in court throughout the hearing, but did not give any evidence.

The first marriage lasted 17 years and the plaintiff had one son from that relationship.

The plaintiff married his second wife 2 years after he divorced his first wife. The second marriage lasted 6 years and ended in a divorce about 4 years ago. There were two daughters by that marriage.

I gather that that separation was an unhappy one, to say the least of it, there being problems with access to his daughters, which apparently led to the plaintiff abandoning his attempts to see them.

About two years later the subject accident occurred.

The plaintiff was driving his Hiace van in a southerly direction on Adelaide Road, Gawler.He stopped his vehicle at the junction of Adelaide Road with Eighteenth Street.He intended to execute a right hand turn into Eighteenth Street and had to wait for the traffic travelling in the opposite direction to clear.

At the same time the defendant was also driving his motor vehicle in a southerly direction on Adelaide Road.The defendant's motor vehicle then collided into the rear of the plaintiff's stationary van.The force of the collision forced the plaintiff's van into the path of a third vehicle travelling in a northerly direction on Adelaide Road, resulting in a further collision between the plaintiff's van and the third vehicle.

As a result of the two collisions the plaintiff was rendered unconscious for a short duration, which I find was no more than half an hour.He did not, however, suffer from concussion.

The plaintiff was taken by ambulance to Huchinsons Hospital at Gawler and on arrival he complained of a very painful stiff neck, headache and aching in the left flank and around the right knee.At the accident scene he had been complaining of pins and needles and numbness in the arms, but that had ceased by the time he arrived at the hospital.Examination by Dr Reid revealed a long central scalp laceration of the vertex, a small chin laceration and inability to move the neck and much tenderness on the left side.The left flank was tender and the right knee had decreased movements.Neurological examination was normal.

The plaintiff was then transferred to the Lyell McEwin Hospital where X-rays were taken and they disclosed no fractures.

The evidence is that the injury to the plaintiff's head was a closed head injury.

Although Dr Reid expressed some surprise at the plaintiff not being kept for at least 24 hours at the Lyell McEwin Hospital for observation, the plaintiff's sister, Mrs Wendelborn, was asked to come to the hospital to pick him up after his wounds had been cleaned and sutured.She was told that the reason for this was because no beds were available at the hospital.Having been given instruction as to how to care for the plaintiff, Mrs Wendelborn took him to her home.

Mrs Wendelborn said that the plaintiff was a little bit vague, but she thought he was getting better and, although he was 'not back to his normal self', he left at the end of the week and returned to live with his mother.

His general practitioner, Dr Hyde, saw the plaintiff on 25 June 1993 and in his report dated 14 October 1993 he described the laceration to the scalp as being some 5-6 inches long.He said that the plaintiff was complaining of numbness over the right occiput, pain in the left lower chest laterally and in the right knee and that the plaintiff had a laceration of the left shin and the right thigh.He said that he also had a laceration under the left chin.

The wounds had healed by 20 July 1993 and the plaintiff was complaining that he was still getting pains from the back of his neck on the right over the cranium to the right frontal area.He manifested a diminished range of movements of his neck.

The plaintiff was treated with physiotherapy and chiropractic treatment and he returned to work on 12 August 1993.

During his period of absence he received sick pay.

As at 14 October 1993 Dr Hyde reported that the plaintiff still had a residual disability in his neck, namely about 10-15 degrees diminution in range of neck movements.He thought that the plaintiff needed to continue to receive neck massage.However, he reported that the plaintiff could return to nearly full time work and was fit for nearly all his previous work.

However, by 4 February 1994 Dr Hyde reported that the plaintiff's improvement had been quite dramatic.He said that he had nearly a full range of movement of the neck, that whilst he could hear a grating sound it was painless, but he could feel a pulling up on his neck.Dr Hyde expressed the view that none of that reduced the plaintiff's work capabilities which he said were basically nearly full and that he would gradually revert to normality.

It is to be noted that Dr Hyde makes no mention whatever of any report of loss of memory.

It was common ground between the experts that Alzheimer's disease is not caused by trauma.It may be present in a person for a considerable period of time before it manifests itself or, to use Dr Hallpike's expression, is unmasked. Indeed, Dr Hallpike, who examined the plaintiff on 28 March 1994 and 14 July 1995, reported after the second examination that 'the causation of Mr Hicks' present cognitive impairment is unclear' although 'the temporal relationship of the relevant symptoms to the head injury does raise the possibility of a cause-and -effect relationship'.He also thought that the plaintiff had early symptoms of a dementia due to an intrinsically generative brain disorder, but not necessarily Alzheimer's disease.A report on a cerebral SPECT scan performed by Dr Rowe on 30 August 1995 at Dr Hallpike's request revealed that -

'There is a mild reduction in parieto-temporal activity relative to frontal lobe.Basal ganglia activity is prominent.

COMMENT:There are no focal abnormalities to suggest significant head trauma. The mild parieto-temporal abnormalities are suggestive of early Alzheimer's disease but not diagnostic.A repeat study in 12-18 months time may be of benefit if the situation remains unclear.'

Dr Hallpike gave a brief definition of the nature of Alzheimer's disease as follows:-

'Very briefly, Alzheimer's disease is the commonest form of dementia.You immediately have to say "What you mean by dementia?"and the sort of definition that is employed is non-reversal general decline in cerebral functioning with a strong emphasis on the cognitive aspects of cerebral functioning as opposed to - let's say - the movement and coordination aspects - they are not completely mutually exclusive.The non-reversible is to encourage people to be very aware of the need to look for underlying illnesses that may be capable of - including the administration of drugs in particular and non-reversible you acquaint to an intrinsic degenerative cerebral pathological process.In recent years there have been considerable advances in the understanding of the neuropathology of Alzheimer's disease and the present situation probably is that Alzheimer's disease is a syndrome in which there are important genetic factors.There are neuropathological mechanisms and expressions of genetic factors and it seems to be likely that environmental factors also play a role in the expression and course of Alzheimer's disease. It's unlikely that Alzheimer's disease is a single unitary disease process.So many complex disorders are not single unitary disease processes.It's one of the commonest causes of death now - it's said to be the fourth commonest cause of death in the United States.Alzheimer's disease; cancer; vascular disease - it comes in at about four, so it's a very major - I mean we all have to die at some point and I think what I'd like to see is rather than cause of death, perhaps it's one of the major accompaniments of the aging process that itself gives rise to disability in the course of aging.Perhaps that's a nicer way of putting it.'

It was Dr Hallpike's view that significant adverse life events may be seen to interfere with the effectiveness of adaptation to early effects of Alzheimer's disease and resulting in early clinical expression of the disease than would otherwise have been the case and that the subject accident was in the category of a significant adverse life event.

His evidence was that the temporal relationship between and injury to the head and the unmasking of the clinical expression of Alzheimer's disease that must exist if the head injury is to be seen as a cause of the unmasking would, in his view, be within a period of three to six months.Furthermore, it was his view that going beyond that period was not justified.

The apparent absence of any complaint by the plaintiff to Dr Hyde about a loss of memory during the period ended 4 February 1994 is, in my view, of some significance, particularly in the light of the fact that evidence given by Mrs Wendelborn and a former work colleague of the plaintiff, Mr Ward, of their observations of his apparent lapses of memory post date Dr Hyde's report of 4 February 1994 by many months.Moreover, the first notation made by Dr Reid, who practices in partnership with Dr Hyde and others, of the plaintiff experiencing a problem with his memory is dated 10 May 1995.

The plaintiff said that the first time he noticed any problem with his memory was during an exercise at the Security Centre at Adelaide Airport.He was in charge of that part of the security exercise and, whilst speaking by telephone to the Police Commander, his mind went blank.He could not remember to whom he was speaking or what he was there for.

If that happened, it must have happened before the plaintiff retired on 5 April 1994.Moreover it was, in my view, a matter of sufficient significance that had it occurred before February 1994, it is more probable than not that the plaintiff would have mentioned it to Dr Hyde or to someone else.Dr Hyde was not called as a witness and, as a consequence, I infer that his two reports contain the evidence that he would have given had he been called.I do not think I can assume that he might have gone further, nor can the plaintiff remember ever having told Dr Hyde that he was having trouble with his memory.

The plaintiff was 'not sure of the time frame' within which the exercise took place.No one was called from the Department to say when the exercise took place.

In those circumstances, I draw the inference that the exercise took place between 4 February 1994 and 5 April 1994:ie. at least seven months after the date of the accident.

The significance of that finding lies in the evidence of Dr Hallpike concerning the temporal relationship between an injury to the head and the unmasking of the clinical expression of Alzheimer's disease.As I said earlier, it was his view that going beyond the period of three to six months was not justified.

Counsel for the plaintiff, Mr Day, called Dr Wood, a highly qualified Clinical Psychologist and, as I have said, Dr Hallpike, a specialist Neurologist.

Counsel for the defendant, Mr Soulio, called Dr Kneebone, a specialist Neurologist and Mr McCulloch, a specialist Neurosurgeon.

Whilst there is a certain amount of common ground between the experts, the difference of opinion lies in the answer to the question as to whether the closed head injury caused to the plaintiff is causally related to the unmasking of Alzheimer's disease from which the plaintiff suffered at an earlier point in time than would have been the case had it not been for the accident and, if so, how long.

Dr Hallpike expressed the view that the plaintiff's Alzheimer's disease had been unmasked some 1-3 years earlier than would have been the case had it progressed without the interference of any significant adverse life event.

In the light of the cognitive tests made by him, Dr Wood's view was that Dr Hallpike's opinion is to be preferred.

On the other hand, Dr Kneebone and Mr McCulloch disagree.It was their view, based on world wide research that there is no acceptable evidence that Alzheimer's disease can be unmasked by a closed head injury such as that caused to the plaintiff, or at all.It was their evidence that Dr Mortimer's research, on which Dr Wood placed some reliance, was flawed, in that unacceptable methodology was used for the purpose of drawing conclusions from the study.I accept that criticism.

There is, on the evidence of Mr McCulloch, who researched all the world wide medical literature published over the last six years in Internet, no correlation between Alzheimer's disease and head injury.

When asked how he conducted his review of the literature Mr McCulloch said:-

'It was conducted by means of the internet using a program known as "medline" which is a data-based search based in the United States accessible to any doctor throughout the world using key words of "Alzheimer's disease" and "head injury" and searching in all of the world's medicine literature for the last six years from 1990 onwards.The result of that search was that there were 45 pertinent articles in which these two key words came up.A number of those articles were such things as letters to the editor or editorials which I didn't chase further.Some of the articles related to biochemical changes which I also didn't chase further with a few exceptions, and that left me with nine out of the 45 that were pertinent articles.I should also mention I also did data case report reports, or a single or a few case reports.That produced nine pertinent articles printed in the world literature in the last six years.Two of those articles, including the one referred to already in these proceedings, the one by Mortimer, found that there may have been a correlation between previous head injury and Alzheimer's disease.One found that there was a borderline correlation and the remaining six found that there was no correlation.If I may comment briefly about Mortimer's article.That is using a technique known as metanalysis - M-E-T analysis - and, as I think the court has already heard, it amounts to pooling of data from other studies.The strong criticism statisticians have of this method is that any inbuilt errors in the done studies are carried over in the metanalysis.One obvious inbuilt error is reporting bias by the patient or the relatives.So if you go out to a family who have a member of their family who has Alzheimer's disease and ask the question "have you ever had a head injury?" it is thought there may be a bias towards them saying yes.Indeed, one of the articles which found that there was correlation concluded with the statement that the association - that is to say referring to the association between head injury and Alzheimer's disease - needs to be confirmed in a prospective follow-up study to exclude fully the possibility of recall bias.So that is really the nub, the real essential point of the argument.I mentioned that there are six articles that denied such a correlation between head injury and Alzheimer's disease and these are all well structured articles with large volumes of cases.One of them, an Australian study which is reported - I just can't see it at the moment - it was reported in the last year or so and it was a large study involving about 200 cases.Of the studies which found that there was no correlation, I believe the most pertinent one is one from the Mayo Clinic.This was different from the other studies in that it was not a questionnaire based study.That is to say, they did not sent interviewers out to a person's house already with Alzheimer's disease and ask them about the variety of things:diet, past medical history, family history.The Mayo Clinic is based in Rochester Minnesota, which is a relatively small city for a clinic of that degree of world-wide fame.It sits in a city of 70,000 people.As well as providing medical services of an exceedingly high quality to many persons throughout the United States, it also provides that normal day-to-day medical care of the people within the Rochester area and they have structured an epidemiological study in a longtitudinal (sic) fashion following these people and with complete access to medical records.So they can then see, if someone develops Alzheimer's, they can then look back in the medical record and see what events have occurred in their past what illnesses, what medications they have had, and so on.This study I think is a very strong study and it finds no correlation.So the summary of my view of literature is that the evidence that there is a correlation between head injury and Alzheimer's disease is very questionable.At the moment the body of evidence appears to be against such a correlation, and those papers that have found a correlation generally suggest that a better structured study is necessary.

Q. The article by Mortimer, based as it is on a collection of data from other studies, threw up a number of anomalies, according to evidence given by Mr Kneebone this morning, including that alcohol was a significant factor and that family history was not, contrary to what I understand, what I suggest, is orthodox current scientific thinking about significant factors.Is that the type of error or the type of problem which may emerge in such a study.

A. Yes, it is the sort of problem that may emerge.The alcohol is correct, as you say.Family history certainly appears to be a relevant factor, although some of the studies actually distinguish between Alzheimer's disease occurring in a person with a positive family history and occurring in a person without a positive family history, and looks at influencing factors in those two subgroups and the fact that there are fine differences.'

I accept Mr McCulloch's opinion, supported as it is by Dr Kneebone, whose opinion was based not only on his own expertise as a neurologist, but was supported by larger community based studies which led him to the view that head injuries have not been shown to be a highly significant risk factor.

True it is that constant battering of a person's head over a period of years, as is the case with professional boxers, will produce brain damage and give rise to cognitive disorders.However, such disorders are not the same as Alzheimer's disease.The changes are quite different, as is the pathology.

In the light of those findings I am not satisfied on the balance of probability that the closed head injury suffered by the plaintiff was a causal factor in the unmasking of the Alzheimer's disease from which he suffered.

That being the case it was conceded that the plaintiff can have no claim for economic loss and his damages for non economic loss stand to be assessed in accordance with Section 35A of the Wrongs Act 1936.

Furthermore, even if I am incorrect in making the finding that no causal relationship existed, I am not satisfied that the temporal relationship adverted to by Dr Hallpike applies in the present case.

Dr Hallpike's opinion was based upon a factual basis which was not borne out by the evidence.He thought that the problem that the plaintiff had with his memory manifested itself within the 3-6 months period after the accident.I have already found, on the evidence, that it probably did not manifest itself until after 4 February 1994.That clearly comes outside the period beyond which Dr Hallpike said that a temporal connection could not be justified.

I find that the plaintiff's ability to lead a normal life was significantly impaired by the injury for a period of at least seven days.Pursuant Section 35A(1)(b) of the Wrongs Act I assign a numerical value on a scale running from 0-60 (the greater the severity of the non economic loss, the higher the number) namely, eight.

It was agreed that the prescribed amount referred to in sub paragraph (2) of paragraph (b) of Section 35A(1) is, for the purposes of this case, $1,390 which, when multiplied by eight gives a total amount of damages for non economic loss of $11,120.

Accordingly, there will be judgment for the plaintiff in the sum of $11,120.