Hogan v Gaundar
[2012] ACTSC 109
•July 9, 2012
HOGAN v GAUNDAR
[2012] ACTSC 109 (9 July 2012)
PERSONAL INJURY – motor vehicle accident – regional pain syndrome – consequential psychological and physical conditions.
No. SC 357 of 2007
Judge: Sidis AJ
Supreme Court of the ACT
Date: 9 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 357 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:APRIL MAREE HOGAN
Plaintiff
AND:PARAS GAUNDAR
Defendant
ORDER
Judge: Sidis AJ
Date: 9 July 2012
Place: Canberra
THE COURT ORDERS THAT:
1. Verdict and judgment for the plaintiff in the sum of $599,586.
2. The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument on the issue of costs.
3. The exhibits are returned.
4. My reasons are published.
The plaintiff, April Costa (nee Hogan), brought a claim arising out of a motor vehicle accident that occurred on 14 February 2005 when the car that she was driving collided head on the defendant’s vehicle. Breach of the duty of care was admitted by the defendant.
The disputes arising at the hearing concerned the nature of the injuries and disabilities that the plaintiff suffered as a result of the accident and the extent to which she was to be compensated, in particular, for the loss of income earning incapacity.
BACKGROUND
At the time of the accident the plaintiff was 19 years old, she is now 26. She left school in 2002, part way through Year 11, when she became pregnant. She therefore failed to complete the senior years of her high school education.
She was employed for three months in retail sales prior to the birth of her son in July 2003. Twelve months after his birth she returned to work full time in a footwear store and continued in that employment until the day before the accident.
The plaintiff had arranged to start work at another footwear store the day after the accident. The reason for the change in employment was a proposal to change roster arrangements that required the plaintiff to work at weekends. This did not suit her domestic obligations to her son.
The evidence suggested that the plaintiff performed well at school academically and that she enjoyed many kinds of sporting activity, particularly netball. In netball she participated at representative level and also trained and participated as an umpire. She continued to play this sport after the birth of her son with her mother minding her child.
The plaintiff, her mother and her husband described her prior to the accident as attractive, bright and enjoying a full range of social activity.
INJURIES
The plaintiff described the trauma of her inability to avoid a head on collision with the defendant’s vehicle when it veered to the wrong side of the road.
She was removed from her car by bystanders and assisted by members of the fire brigade until an ambulance arrived. She said she was feeling pain in her neck, back and chest, where she suffered bruising from her seatbelt, and in her right ankle.
She was taken by ambulance to hospital and X-rayed. No fractures were evident on the X-rays. The plaintiff was sent home for follow-up by her general practitioner.
She consulted her general practitioner the next day and was provided with pain killing medication. The plaintiff said she was unable to walk on her right ankle and, on the advice of her doctor, she rested, took pain killers and undertook exercises as instructed by her doctor.
In addition she was suffering at that time from neck pain, pins and needles and numbness in her arm. The plaintiff said she did not drive for one year because of her fear of another accident and said she was equally as anxious as a passenger.
The plaintiff became pregnant and had a second child, a daughter in July 2006. She complained of increased right ankle pain as her weight increased during her pregnancy.
At the same time, the question of her continued consumption of pain killers, such as Panadeine Forte, was discussed with her doctor.
She said by this time the pain in the other parts of her body affected by the accident had resolved, but she was taking the maximum dosage of eight Panadeine Forte a day to deal with ankle pain.
In July 2007 an MRI was arranged by Dr. Aubin that suggested an injury to the tendons in her right ankle. Dr. Aubin administered a cortisone injection in August 2007 that provided the plaintiff with no relief and he therefore proceeded to surgery in October 2007.
After surgery the plaintiff wore a boot and was non weight bearing for six weeks, after which she gradually returned to full weight bearing over a further six week period. She has a small surgical scar as a result of the surgery. She said that this scar did not concern her.
The plaintiff said that surgery provided no relief of her ankle symptoms. She developed additional symptoms with stabbing pain, pins and needles and a sensation of electric shock when she scratched her foot if it itched.
The plaintiff said that there had been no improvement in her condition to the date of the hearing. She complained of ongoing right ankle pain on various sitting positions and pain within two to three minutes of walking. She complained of pain when walking her children one kilometre to school two times a week.
Nerve conduction studies were undertaken in March 2010 that demonstrated that there was no nerve damage to the ankle.
The plaintiff described her psychological condition as depressed upset and anxious. She was particularly concerned for her future because of the poor condition of her bowel that was the result of her heavy use of Panadeine Forte and other medication.
The plaintiff described periods of weeks between bowel movements. On 12 June 2008 she presented to the Emergency Department at Canberra Hospital after a period of constipation for ten days.
After this episode she said she stopped taking pain killers, but the condition of her bowel did not improve. She trialled a number of aperients that were without success, unless they were used in excessive quantities. She complained at times of faecal incontinence and diarrhoea. She said she also suffered from stomach pain and flatulence, the latter being a source of considerable embarrassment.
The plaintiff has consulted a number of practitioners about the condition of her bowel. Remedies discussed included surgery. This appeared to be a last resort solution and not seriously suggested at this stage.
Dr. Stewart proposed that the plaintiff participate in a trial of new treatment involving nerve stimulation. She was unable to participate in this trial because of her continued consumption of medication, including anti-depressants.
Dr. Hillman provided a second opinion in November 2010 in which she advised the plaintiff to cease medication and try acupuncture. The plaintiff said she had two sessions of acupuncture without benefit.
In Dr. Hillman’s opinion, if the plaintiff ceased medication the condition of her bowel would gradually recover over a period of five years.
In respect of her psychological condition, the plaintiff consulted Ms Pelengaris, psychologist, who treated her with Cognitive Behavioural Therapy that the plaintiff said was not very successful.
She had however been able to return to driving a car and suffered from reduced anxiety as a passenger in a car.
She has been provided with a number anti-depressant medications. Her current medication being: Stillnox for sleeping, Efexor at a dose of 450mg per day and Panadeine Forte which she continued to take once or twice a month.
The plaintiff said that her general practitioner had advised her to cease reliance on this medication, but she said that she would not survive without it. She said that if she did not have Stillnox she obtained no appreciable period of sleep at night and she suffered withdrawal symptoms and migraine headaches.
When she took Stillnox she had difficulty waking up in the morning and she told of her son repeatedly waking her to get her out of bed and prepare her children for school.
The plaintiff said that she was proposing further treatment with a psychologist. She has also consulted a psychiatrist.
In respect of post accident activity the plaintiff said that she obtained qualifications in umpiring while she was at high school and that before the accident she umpired on Saturdays from junior grade to adult from 8am to lunchtime. In the afternoons she played with her own team. She said that she attempted to play netball two to three times after the accident, but this caused ankle pain and she was unable to move around the court. She continued to umpire by walking only and not by running. She said that she could do this because of her experience and confidence.
She had tried swimming but she said that this put pressure on her right ankle and caused her pain.
The plaintiff said that she had difficulty descending stairs and her ankle was unstable to the point where three times it has collapsed underneath her.
Her plaintiff said that her relationship with her husband was affected by her reduced libido. This was the result of her physical limitations and the pain involved in sexual activity.
She said her relationship with her children was affected. She said that some days she was reluctant to get out of bed to look after them.
Prior to the accident she and her husband had planned to have more children. She said that now she could not cope emotionally and she was not prepared to risk pregnancy when taking anti-depressant medication.
The plaintiff’s mother essentially confirmed her evidence and pointed to the considerable weight gain that was recorded in the medical reports since the time of the accident.
She said the plaintiff after the accident has been upset and stressed with the children and frustrated by her physical limitations.
The plaintiff’s husband said that his wife was moody one day and well the next. At times this caused him to feel unloved. In respect of her bowel condition he spoke of her bloating, eating problems and her use of large quantities of aperients.
He gave evidence of the plaintiff’s severe withdrawal symptoms if she ran out of sleeping pills, including headaches, crying, sleeplessness and sweating. The plaintiff’s husband said that at times he feared leaving her at home with the children because of the effect of some of the medication she had used in the past.
He said that she had been nervous in the car. For this reason they recently purchased a new car that had a number of safety features.
As far as their intimate life was concerned he said the plaintiff was now merely a passive partner.
MEDICAL EVIDENCE
All of the medical experts who assessed the plaintiff’s ankle injury, with the exception of Dr. Brooder, reported that there was little, if any, objective evidence to support her claim of ongoing ankle symptoms. I have therefore not taken into account Dr. Brooder’s opinions and his diagnosis.
Dr. Aubin found very minimal abnormality in the tendons of the plaintiff’s ankle in the course of surgery, and the nerve conduction studies that he directed to be undertaken returned normal results.
Dr. Cairns agreed with the opinions of Dr. Aubin, Dr. Klar, Dr. Sullivan and Dr. Slater, whom he described as recognised experts in foot and ankle injuries. Their opinions were that the plaintiff suffered from a Chronic Regional Pain Syndrome. Dr. Griffith and Dr. Mellick agreed also with diagnosis.
Dr. Cairns set out the diagnostic criteria for a finding of Complex Regional Pain Syndrome and said that there were no clinical findings to match these criteria.
Dr. Slater, although he acknowledged that he had no specialist psychiatric training, relied upon his general medical training to support his opinion that the plaintiff’s ongoing ankle symptoms related to her depressive disorder and pain dysfunction and not to any mechanical or irritable cause. He said pain dysfunction syndromes:
... have a notorious reputation for delay in recovery and associated
depressive disorders and abnormal behaviour”.
All of the experts accepted that no further surgery was warranted. Dr. Slater proposed, subject to the management of the plaintiff’s bowel condition, the ongoing use of analgesic anti-inflammatory anti-depressant and sleeping medication.
Dr. Griffith, while describing the plaintiff’s pain syndrome as capricious and unpredictable and offering a guarded prognosis, said that there were treatment options that were not yet explored.
The plaintiff’s psychological condition has been treated by Ms Pelengaris, psychologist, and Dr. Pattison, psychiatrist. Ms Pelengaris reported in December 2009 after four sessions of treatment only, and her report was of little assistance.
Dr. Pattison reported that there were days when the plaintiff was happy with her children and days when she was significantly depressed and overwhelmed. She described the plaintiff’s difficulty in sleeping as out of all proportion to her levels of pain and depression, and said she was seeking an opinion concerning the management of her insomnia. The plaintiff gave evidence that she had recently undertaken a sleep study and that she was awaiting the results of that study.
Dr. Pattison noted in her treatment reports to the plaintiff’s general practitioner that she prescribed the plaintiff Stillnox and warned the plaintiff that this medication was not intended for long term use. She also reported that she increased the dose of Efexor to 450mg which was above the recommended dose. She said that she had done this because it was the only option available at that time. This was done in April 2011 and the plaintiff continued to the date of the hearing to take that level of Efexor on a daily basis.
Dr. Saboisky, psychiatrist, reported in September 2008 on the plaintiff’s initial Post Traumatic Stress Disorder and high degree of anxiety when travelling in a car. It appeared that this problem had been substantially overcome with treatment.
Dr. Knox examined the plaintiff in February 2010 and March 2012. He diagnosed Chronic Adjustment Disorder with Mixed Anxiety and a Depressed Mood and said in 2010 that the plaintiff required supportive counselling for at least 12 months. His prognosis was of ongoing physical and psychiatric health issues with anxiety and depression unless the plaintiff’s bowel condition was successfully treated. In March 2012 he said the plaintiff’s mental condition was unchanged and he offered the same diagnosis. He said that she was displaying helplessness and hopelessness about her impaired health.
Dr. Knox did not consider that the plaintiff required further psychological appraisal or adjustment to her treatment. It did not appear that he was informed of the need to cease all medication, including those addressing her psychiatric condition, in order that the condition of her bowel could be addressed.
A study undertaken in May 2009 demonstrated abnormal colonic transit due to left colon dysfunction. Dr. Stewart said that this indicated that there was permanent damage to the musculature of the plaintiff’s colon resulting in permanent dysmotility. He said the best means by which the plaintiff could obtain relief would be the long term use of aperients and the avoidance of narcotic, analgesic and anti depressant medication. Dr. Stewart referred to options of surgery and the trial of a sacral nerve stimulator. He said the nerve stimulator was purely experimental at this stage and was contra-indicated for patients, such as the plaintiff, who were taking anti-depressant medication. It was also very expensive.
Dr. Hillman in November 2010 said that under no circumstances should the plaintiff have colorectal surgery. She recommended management for the plaintiff’s ankle pain with a view to a gradual 5 year programme, during which the plaintiff would come off all medication. She said that there was no reason for the plaintiff to remain on long term anti-depressants and pain suppressants if mechanical management of her pain could be achieved.
Dr. Kaye also advised against surgical intervention and supported medical management through laxatives, anti-depressants, fibre and fluid diets. He agreed with Dr. Hillman’s suggestion that the plaintiff withdraw from all medication gradually over a period of five years.
LOSS OF INCOME EARNING CAPACITY
The plaintiff returned to work two weeks after the accident. She worked full time with assistance from the store manager to access stock and to deal with elderly customers for whom it was necessary to crouch when fitting shoes
At work she had to wear flat shoes because of the condition of her ankle. She said that even a slight heel caused a cracking sound in her ankle. This was contrary to store policy that required staff to wear its products.
In mid 2005 the plaintiff resigned because the rosters again were changed to require her to work at weekends. At the same time she suffered a miscarriage.
Between June and December 2005 she applied for work in various retail outlets and ultimately obtained a position with Aldi working at the checkout and restocking shelves. She described this as very light work. She was assisted by hydraulic lifting equipment and by seating provided at the checkout. The plaintiff said that she coped with this work.
The plaintiff became pregnant again and gained weight resulting in an increase of pain in her right ankle. She therefore resigned in February 2006. She has not been employed since.
The plaintiff said that, but for the accident, she would have worked full time in some form of office work. She agreed that physically she was capable of sedentary work such as work as a receptionist or at a checkout, as at the Aldi store, where she was provided with seating. She said that she could not work in a retail store where she was required to stand and walk all day as had been the case in the footwear stores.
From the point of view of her bowel condition, she said her incontinence and flatulence were both unpredictable and the source of embarrassment and prevented her from applying for work.
The plaintiff accepted that she was rated by the Vocational Capacity Centre as having above average capacity for clerical or administrative work that she could apply with her computer skills to obtain clerical work. She agreed that she told the tester that she planned to return to work when her youngest child went to school.
The plaintiff said that she had planned to undertake a TAFE course in order to retrain for the workforce but she had not done this. She had investigated online courses that she could undertake at home, but they required the payment of fees that she could not afford.
The plaintiff agreed that working would assist her psychological condition and she said the purpose of further proposed psychological treatment was to get her back into some form of employment.
Dr. Mellick suggested that caring for two young children and managing a household was equivalent to working full time and said that there was no organic reason for the plaintiff’s not returning to her pre-injury work. All of the other medical experts said that the plaintiff was limited to work of a sedentary or light nature because of the continuing pain that she experienced in her right ankle.
Dr. Le Leu suggested that the plaintiff’s disabilities were likely to be life-long but Dr. Griffith and Dr. Slater were less pessimistic.
Dr. Knox pointed out that it would be unlikely that the plaintiff could work easily in company with others, given her concerns about her bowel dysfunction.
The plaintiff was assessed by the Vocational Capacity Centre in April, 2009 where it was noted that she expressed interest in administrative work and that she could do this work without limitation. It was also noted that the plaintiff had qualifications in netball umpiring, computer skills, above average potential for clerical skills, an average intellectual capacity and strong written and direct communication skills. The Centre proposed a number of vocational choices for the plaintiff, some of which required retraining.
PERSONAL AND DOMESTIC CARE
It was apparent that after the surgery conducted by Dr. Aubin that the plaintiff required a considerable degree of assistance. This was provided by her mother on weekday mornings and by her husband in the afternoons and at weekends. Aside from this, the plaintiff said that she was able to perform her housework, except for some minor aspects of her vacuum cleaning and standing for long periods to cook.
Her husband moved the clothes line closer to her house to shorten the distance that she was required to walk with the laundry basket.
The plaintiff said that she undertook grocery shopping with her sister or her son and they managed the trolley for her.
The plaintiff’s mother said she continued to assist the plaintiff taking the children to school on average twice a week when the plaintiff was unwell. She said she also took them to swimming lessons at weekends and to outings and movies during the holidays. She estimated that she spent about two hours a week in providing assistance.
She agreed in cross examination that she would take the children on outings in any event as their grandmother and that therefore the extent of her assistance in reality was limited to taking the children to school twice a week.
The plaintiff’s husband said he continued at times to provide extra assistance to plaintiff when she was having a bad day and that he helped her by pushing the shopping trolley once or twice a week.
ASSESSMENT
General Damages
It was very apparent that the key to the plaintiff’s future health was dependent upon her withdrawing from reliance upon her medication. It was also apparent that there was little, if any, remaining abnormality in the plaintiff’s right ankle and that objectively any remaining symptoms affecting the ankle should be very minor.
The medical evidence overwhelming supported the finding of Chronic Regional Pain Syndrome as the explanation for her ongoing symptoms.
The medical experts also accepted that the plaintiff’s psychiatric problems and bowel dysfunction were the consequences of the Chronic Regional Pain Syndrome.
At the time of the hearing it was seven years since the plaintiff’s initial injury and she had not responded positively to treatment. I concluded that the accident had significant consequences to the life of a very young woman. Her life has been affected in every aspect with negative effects on her relationships with her husband and children and the prospects of having more children in doubt.
There was some possibility for improvement if the plaintiff secured the treatment necessary to allow her to proceed with Dr Hillman’s suggested five year program for withdrawal from medication.
Taking these factors into account I assessed her general damages at $110,000.
Loss of Income Earning Capacity
I accepted that to date the plaintiff has not been capable of full time employment because of the consequences to her health arising from the accident. The defendant noted that the plaintiff stated her intention was to return to work when her youngest child started school, an event that occurred at the start of 2012. The defendant contended therefore that she should not recover the income that she claimed from July 2007 until the end of 2011. Against this proposition was the evidence that the plaintiff returned to work twelve months after the birth of her first child and that between 2006 and until relatively recently her husband was unemployed and was in receipt of workers compensation following a work place injury.
In such circumstances, I considered that the plaintiff would in all probability have returned at least to part time work between 2007 and 2012. I therefore allowed one half of her claim for income lost between July 2007 and July 2012 in the sum of $52,000.
I allowed for past economic loss a total of $57,160 and interest of $14,290.
The plaintiff claimed future income loss on the basis of full incapacity for five years and partial incapacity, claimed at $250 a week, for the balance of her working life.
The defendant argued that it would be appropriate to allow a buffer, suggesting a sum of $100,000 to provide for the five year period for recovery proposed by Dr. Hillman.
This contention required consideration of the extent to which, realistically, it might be expected that the plaintiff would recover her mental and physical health in order to return to the workforce and the point at which that recovery might be expected to be achieved.
I regarded it as optimistic to expect full recovery within five years, but I accepted that there were some prospects for recovery.
I was satisfied that it was appropriate that the plaintiff be compensated beyond the five year period proposed by Dr. Hillman and that realistically her income earning capacity thereafter was likely to be reduced.
I considered however that the plaintiff’s future income earning capacity should be assessed at a level between that of the income of a retail sales assistant and a person involved in administrative work to take account of the prospect that the plaintiff would not have retrained and take into account her expectations of further time out of the workforce as the size of her family increased.
The assessment that I arrived at was as follows:-
· I allowed a loss of $500 per week for five years discounted by 3% but with no further discount for contingencies.
· I allowed a loss of $200 per week for 30 years discounted by 3% and a further 15% to allow for contingencies for a period of 30 years in the sum of $176,460.
· The total allowed for future income loss was $297,710.
Superannuation loss was allowed at 9% in the sum of 26,794.
Personal and Domestic Care
The plaintiff claimed assistance for ten weeks after the accident. This claim was not disputed and it was therefore allowed in the sum of $3,080.
The plaintiff also claimed three hours a week of assistance to the date of the hearing and two hours a week for the future.
I accepted the defendant’s contention that this claim was not supported by the evidence. The plaintiff clearly stated that she continued to perform all of her housework. At most the evidence indicated that she continued to receive limited assistance from her mother and her husband that was essentially directed at childcare. Further, there was no medical evidence to support the claim for domestic assistance.
I assessed the need for assistance with childcare at one hour per week. On this basis I allowed $4,862 for past care. For the future I allowed one hour per week for ten years, that being the point at which I anticipated it might reasonably be expected that the plaintiff’s responsibilities to her children would be completed. The sum allowed was $11,440.
Out of Pocket Expenses
Past out of pocket expenses were agreed and allowed in the sum of $26,000.
For the future, it was clear that the plaintiff required a considerable amount of treatment if she was to have any hope of recovery from her psychiatric and bowel conditions. I considered in those circumstances that the claim of $40,000 was reasonable and it was allowed.
| SUMMARY | |
| General damages | $110,000 |
| Interest on $55,000 at 2% | $ 8,250 |
| Past Income Loss | $ 57,160 |
| Interest | $ 14,290 |
| Future Income Loss | $297,710 |
| Superannuation | $ 26,794 |
| Past Domestic Care | $ 7,942 |
| Future Domestic Care | $ 11,440 |
| Past out of pocket expenses | $ 26,000 |
| Future out of pocket expenses | $ 40,000 |
| TOTAL | $599,586.00 |
ORDERS
Verdict and judgment for the plaintiff in the sum of $599,586.
The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument on the issue of costs.
The exhibits are returned.
My reasons are published.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.
Associate: James Middleton
Date: 9 July 2012
Counsel for the Plaintiff: Mr A Muller
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Defendant: Mr R L Crowe SC
Solicitor for the Defendant: Sparke Helmore Lawyers
Date of hearing: 2-3 July 2012
Date of judgment: 9 July 2012
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