Honan v Steyn & Brennan - [2005] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HONAN v STEYN & BRENNAN
Judgment of His Honour Judge Allan
8 April 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Plaintiff injured in road accident - supervening work injury - measure of damages - avoidance of "double-counting" - neck injury - facet joint injury - degenerative cervical spine - non economic loss $22,900; past economic loss $15,000; future economic loss $45,000; gratuitous services $15,000; future medical expenses $12,500; special damages $137.95; interest $500; total assessment $111,037.95.

HONAN v STEYN & BRENNAN
[2005] SADC 30

The plaintiff claims damages for injuries and loss sustained in a road accident. Liability has been admitted and the matter comes on for assessment of damages.
The plaintiff is now aged 48. She was educated in Victoria. She left school at age 14. She did not like school and did not do well academically. She struck me as intelligent, but, as she tells it, after leaving school, she was barely literate. In recent years, she has undertaken some study to improve her literacy.
On leaving school, the plaintiff worked as a sewing machinist and continued that sort of work with various employers until 1993, save for some time off when she had her two children; about two years in each case. In 1993, she and her husband purchased a farm near Coleraine, Victoria. They ran the farm in partnership and she participated in the work on the farm.
In 1994, the plaintiff got a job as a cleaner on a part-time basis with the Napier Club, a social club at Hamilton; about a 30-minute drive from the farm. She did that work for two years and was then promoted to a full-time position, which, basically, involved her in running the club. She was doing that work at the time of the accident. Her taxable income for the year ended 30 June 1998 was $17,967 and she paid tax of $3,034. She got a refund of $401.
In the mid 1980’s, while she was working as a sewing machinist with a firm called Golden Breed, the plaintiff sustained an injury to her neck: while operating her sewing machine and moving material from one side of it to the other, she experienced pain on both sides of her neck. She went off work, had some physiotherapy and took painkillers. She was off work for 8 to 12 months. The symptoms in her neck gradually abated and, finally, disappeared. She sought to go back to work, but her employer refused to allow her to do so. She was paid workers’ compensation. She had not previously had any trouble with neck pain. She worked as a sewing machinist for many years thereafter; until she and her husband moved to Coleraine.
Since puberty, the plaintiff has suffered with migraine headaches. They have varied in frequency and intensity, sometimes requiring her to be hospitalised. She controlled her diet and the frequency and severity of the migraines decreased. In the years leading up to the subject accident, she would be hospitalised every two years or so because of the severity of a migraine headache.
In January 1998, the plaintiff had a surgical breast reduction. She had large, heavy breasts. She would get an ache in her chest area and upper back and shoulders. She related the aching to the wearing of her bra. The removal of her bra at the end of a day’s work would give her relief. Her large breasts had made it difficult for her to find clothing which fitted. Her daughter was to be married shortly after the surgery was performed and that was the reason she chose to have the surgery at that time: she wanted to get some new clothes for the wedding. She had also become tired of people, men, looking at her breasts. Her symptoms of aching in her chest, upper back and shoulders abated after the breast reduction.
Just before Christmas 1998, the plaintiff came to Adelaide. On 24 December 1998, she was a passenger in a vehicle being driven by the first defendant, the mother-in-law of one of her daughters, when it was involved in a chain collision at Seaford. There were two impacts: one when the vehicle being driven by the first defendant collided with the rear of the car in front of it and the other when the vehicle driven the by the second defendant collided with the rear of the vehicle travelling behind the first defendant’s vehicle forcing it to collide with the rear of the first defendant’s vehicle.
Immediately after the accident, the plaintiff had a sore neck. Within a short period, the pain in her neck increased; in the back of her neck and on the left side, extending into her left shoulder and her left upper arm. She consulted a medical practitioner and had an x-ray. Over the next few days, she had pain in the left side of her neck, upper back and left upper arm and stiffness in her neck. She returned to Coleraine on 8 January 1999. Her son-in-law drove the car because she did not feel well enough to do so.
On her return to Coleraine, the plaintiff consulted her local, general medical practitioner. She was given Panadeine Forte for her pain. She wore a cervical collar and had her left arm in a sling. Her migraines returned. Within days of returning home, she was admitted to hospital with a migraine headache. The pain started in the back of her neck, radiated over the top of her head to her forehead, her vision became blurred and she vomited. It was different in nature to the migraines she had suffered from over the years: they started with a simple headache. She was at the hospital again within a few days with another migraine.
Early in February 1999, the plaintiff had some physiotherapy. She was still wearing the cervical collar and sling. She was off work. She became depressed and, so, on the advice of her doctor, she spent some time in Adelaide with her daughters. She was driven each way. On her return to Coleraine, in March, she and her husband separated and, within a few days, she had left Coleraine and moved to Adelaide. Her employment with the Napier Club had come to an end.
The plaintiff stayed at Clayton with friends and consulted a general medical practitioner, Dr Daniell. Dr Daniell arranged for her to have some more physiotherapy and referred her to Dr Bastian, a consultant in rehabilitation medicine. He arranged for her to have an MRI scan. It revealed minor degenerative changes at the C5-C6 and C6-C7 levels.
The plaintiff’s symptoms of pain which I have earlier described continued. The pain was constant, but varied in intensity from time to time. Nevertheless, in about July 1999, she began to look for work. In mid-October 1999, she commenced work as a sewing machinist with Gem Design. Her neck was very sore during the day, but she persevered and managed with the aid of her painkillers. The pain was in the left side of her neck and head, into her left shoulder and down her left arm to the elbow. She had stiffness in her neck. Her symptoms fluctuated: some days, they were less than others.
As it happened, the plaintiff developed pain in her left wrist while she was working for Gem Design; in the centre of the posterior aspect of the wrist. She also had a tingling sensation in the ring and little fingers of her left hand. She first noticed this pain in December 1999. She had developed a ganglion. She consulted Dr Bastian who referred her to a surgeon, Dr Pope, and, later, to another surgeon, Dr Wicks. She went off work because of her wrist condition. Dr Wicks surgically removed the ganglion in June 2000. She remained off work and received income maintenance payments until April 2003 when her workers’ compensation claim was resolved by the payment of a lump sum. She has not worked since.
The plaintiff continued to have symptoms in her neck, shoulder and upper arm and she was referred to Dr Molloy, a neurosurgeon. Another MRI scan was performed in June 2000. Dr Molloy considered that this scan showed a narrowing of the foramen at the C7-T1 space which, in her opinion, was compressing the left C8 nerve root, thereby causing the plaintiff’s symptoms in her left shoulder and upper arm.
On 23 November 2000, Dr Molloy performed a left C8 foramenotomy. Following the surgery, there was a significant abatement in the plaintiff’s symptoms in her left shoulder and upper arm. She continues to have some weakness in the left arm from time to time and some pain in the upper arm and shoulder; but it has been substantially reduced since the surgery.
The plaintiff continues to have pain and stiffness in her neck, and her migraine headaches are more frequent and of different origin than before the accident. The pain in her neck is constant and alleviated only by the use of strong, pain-killing medication. It interferes with, and intrudes upon, almost all her activities. It interferes with her sleep and her sexual relationship with her husband. She has re-married. Certain activities or movements cause an exacerbation of her symptoms: twisting her head and neck, holding her head and neck in a flexed position, lifting moderately heavy objects and engaging in activities with her hands raised above shoulder level and sitting in the one position for prolonged periods. It is unlikely that there will be any improvement in her condition. She takes a powerful painkiller called Oxycontin every day. She also takes Panadeine Forte as required. She takes a drug called Stilnox to assist with her sleep as required.
Prior to the accident, the plaintiff lived a full working, social and domestic life. Apart from the work injury in the mid 1980’s, she had an uninterrupted work record. In the period leading up to the accident, not only was she holding down a full-time job with the Napier Club, she worked on the farm and did the usual household chores. She was a keen and active lawn-bowler and participated in the social activities of the bowling club and generally in the area where she lived. I accept her evidence that, apart from the upper back, shoulder and chest pain, which she related to her heavy breasts, she was free of pain. I accept her evidence that she did not have pain in the left side of her neck, left shoulder and left upper arm. I accept the evidence of the witness John Nepean, a neighbour and friend of the plaintiff, that he never heard her complain of upper back, shoulder or neck pain and that he saw no sign of any disability or inconvenience in those areas. He travelled to and from work with the plaintiff, played bowls with her and socialised with her. I also accept the evidence of Beverley Brewster, a friend of the plaintiff’s former husband that, before the breast reduction, the plaintiff complained about neck and back pain and that those complaints “certainly lessened” after the reduction. I accept the evidence of Ms Brewster that, before the breast reduction, she thought the plaintiff’s health was “pretty good” and that she never saw any sign that the plaintiff suffered from back and neck pain. It seems that, whatever the level of discomfort the plaintiff was feeling before the breast reduction, it had no impact on the way she lived her life.
I am satisfied, and find, that, in the accident, the plaintiff sustained an injury to the facet joint which produced the narrowing of the foramen at the C7-T1 level and which, in turn, produced the compression of the left C8 nerve root. The condition of the foramen was not the result of degenerative change which pre-dated the accident. The changes to the space for the left C8 nerve root were apparent in the MRI scan performed in June 2000, but not in the MRI scan performed in May 1999; such a sudden change being consistent with the narrowing of the foramen being traumatically caused rather than a gradual narrowing brought about by degenerative change to the cervical spine over a period of years. I rely on the evidence of Dr Molloy in making these findings. The improvement of the plaintiff’s symptoms in her left arm after the foramenotomy performed on 23 November 2000 is consistent with her diagnosis. I should mention that the foramenotomy was never designed to ease the symptoms in the plaintiff’s neck. It was only aimed at easing the symptoms in her left arm, and, to that extent, it was successful.
I prefer the opinion of Dr Molloy to that of Dr North, another neurosurgeon, whose view was that the MRI scans performed in May 1999 and June 2000 did not disclose a narrowing of the foramen at the C7-T1 level. I mention that Dr Bastian considered that the MRI scans showed a narrowing of the foramen.
I am satisfied, and find, that, prior to the accident, the plaintiff had a degenerative cervical spine of a minor degree at the C5-C6 and C6-C7 levels; a condition which was no more than was to be expected in a person of the plaintiff’s age. I am satisfied, and find, that, in the accident, the plaintiff suffered an aggravation of that degenerative condition which, apart from the symptoms emanating from the left C8 nerve root compression, has been, and remains, the cause of the plaintiff’s neck symptoms.
In finding that, in the accident, the plaintiff suffered an aggravation of a pre-existing degenerative condition of her cervical spine, I rely on the evidence of Dr North and Professor Bauze. Dr Bastian and Dr Daniell did not seem to disagree with such a diagnosis and Dr Molloy, although she considered the plaintiff had sustained a musculo-ligamentous injury to the neck in addition to the facet joint injury, did not deny the possibility of such a diagnosis being correct.
During the trial, some time was devoted to the question of whether the symptoms of upper back and neck pain which the plaintiff experienced before the accident, and which she associated with her heavy breasts and the wearing of a bra, were a result of soft tissue irritation caused by her heavy breasts or an aggravation of the degenerative condition of her cervical spine, also caused by her heavy breasts; but I think it does not matter: whatever the cause, the symptoms were alleviated by the breast reduction, following which the plaintiff returned to a full, active, working, domestic and social life.
I am satisfied, and find, that, were it not for the accident, it is possible that, at some time in the future, the degenerative condition of the plaintiff’s cervical spine would have produced symptoms of the sort from which she presently suffers; although, having said that, it is also possible that, but for the accident, the plaintiff’s neck symptoms, such as they were, would have remained at the pre-accident level; at least for many years. That is the opinion of Professor Bauze, and I accept it. Dr North expressed the view that, on assumptions he was asked to make, the plaintiff’s symptoms would be the same as they are at present in any event. I do not accept that view: the assumptions on which he acted for that purpose are not consistent with the facts as I have found them to be. I mention that he was prepared to concede that, depending on the circumstances, the opinion expressed by Professor Bauze on this topic is correct.
As a result of the injuries she sustained in the accident, the plaintiff is not fit for work which involves her in holding her neck in a flexed position, twisting or turning movements of her neck, prolonged sitting in the same position, lifting heavy objects, pushing or pulling objects such as a vacuum cleaner and working with her hands above shoulder level. Basically, as a result of her injuries, she is fit only for work of a light, sedentary nature where she can sit, stand and move about as she wishes. The situation is permanent and has been so since the accident.
In assessing the plaintiff’s entitlement to damages for economic loss flowing from her loss of earning capacity as a result of the injuries she sustained in the accident, allowance must be made for various contingencies; for example, the possibility that, for whatever reason not associated with the accident, the plaintiff would have lost some of her ability to work, some of her earning capacity; and, of course, such a contingency has come to pass: the loss of earning capacity associated with her work injury: the injury to her left wrist.
As a result of the injury to her left wrist, the plaintiff is not fit for work which involves repetitive use of the left hand and weight-bearing with that hand. I mention that the plaintiff is right handed.
The loss of earning capacity as a result of the work injury is significant; but, in my view, such loss is not greater than, or equal to, the loss of earning capacity suffered as a result of the injuries the plaintiff sustained in the accident. There is a difference between the respective losses which must be measured in damages; not that such difference is necessarily capable of precise calculation; but what is certain is that, were it not for the injuries she sustained in the accident, the plaintiff’s loss of earning capacity would not be as great as if she had suffered the work injury alone. No doubt, there is some overlap in the disabilities for work, or earning incapacity, produced by the respective injuries: there is some work that the plaintiff is not fit for as a result of each of the injuries; but, beyond that, there is an incapacity for work, a loss of earning capacity, as a result of the injuries the plaintiff sustained in the accident which exceeds that which flows from the work injury. It is unnecessary for me to try and identify various jobs which might indicate that, it being sufficient for present purposes to find that it is so.
In assessing the plaintiff’s entitlement to damages for past and future economic loss, I have been concerned to avoid any overlapping of the incapacities for work flowing from the work injury and the injuries sustained in the accident. I have sought to avoid double-counting. I have ignored the money received by the plaintiff in redemption of her workers’ compensation entitlements in respect to the work injury; they are just that: compensation for her work injury; and the plaintiff’s entitlement to damages for economic loss should not be diluted thereby. I mention that the plaintiff’s entitlement to weekly payments of income maintenance were redeemed by a capital payment of $44,900 in April 2003.
Of course, as I have indicated, none of this is to say that the assessment of damages to which the plaintiff is entitled for economic loss lends itself to precision: it does not. So far as damages for future economic loss are concerned, a broad approach is the only one which can be adopted. I have done my best to arrive at a figure which I think will do justice between the parties in all the circumstances. To some extent, the same goes for the assessment of damages for past economic loss. In assessing the plaintiff’s damages for future economic loss, I have taken into account the loss of future superannuation. I have also made allowance for the contingency that, at some time in the future, the plaintiff would have experienced symptoms like those from which she presently suffers in her neck as a result of the degenerative condition of her cervical spine in any event. The plaintiff intended to work until she was aged 60 or 65. I have taken into account that, for reasons unconnected with the accident, the work injury or the state of her cervical spine, she would not have done so.
So far as damages for past economic loss are concerned, the plaintiff makes no claim for the period during which she received income maintenance payments in respect of the work injury: 12 October 1999 to April 2003.
The plaintiff’s employment with the Napier Club ceased on about 15 March 1999. She had no income from that time until she commenced work with Gem Design on 12 October 1999, save for some sickness benefits and a small amount of sick leave. The plaintiff is entitled to be compensated by way of damages for the income lost between the cessation of her employment with the Napier Club and the commencement of her employment with Gem. It is true, as Mr James, for the defendants, pointed out, that the plaintiff’s marriage had come to an end and she had left the Coleraine area, making her unavailable for work in that area; but the reality is that, during this period, she had a significant incapacity for work. She was seeing medical practitioners and having treatment for the symptoms sustained by her in the accident; and, as I have already said, the incapacity for work she currently has was in existence at that time and there was no evidence to suggest that, wherever she was, there was work available of a type for which she was fit. It goes to her credit that she got the job at Gem, because it was work which she should not have undertaken: her injuries were such that she was not fit for it. Bearing in mind the length of this particular period, that is, the period from 15 March 1999 to 12 October 1999, I have made only a small allowance for contingencies.

The plaintiff is also entitled to damages by way of past economic loss for the period April 2003 to the present. The measure of those damages, as I have indicated, must be treated in the same way as the assessment of damages for future economic loss and for the same reason: the supervening work injury and its impact on her ability to work. So far as damages for past economic loss is concerned, I will do my best to strike a figure which will do justice between the parties. It will include a component for lost superannuation.
As I have already said, the plaintiff’s life changed dramatically following the accident. She went from being an independent woman working full time, assisting on the farm, performing domestic chores and living a full and active social life to a woman who is now dependent on others for some assistance with the requirements of daily living and whose recreational activities have been curtailed. Again, in deciding on the damages to which she is entitled for non-economic loss, I am conscious of the need to separate those matters which interfere with the enjoyment of her life related to her wrist injury and those related to the injuries and disabilities flowing from the accident. She is only entitled to be compensated in respect of the latter.
I have already described the symptoms from which the plaintiff suffers and I regard them as severe. They are not going to disappear. In addition to those symptoms, the plaintiff has a vertical scar on the back of her neck running from about the hairline to a point between her shoulder blades from the foramenotomy. It is obvious and attracts attention. She endeavours to cover it with clothing.
So far as the damages for non-economic loss are concerned, I assign a numerical value of 15. The multiplicand at the time of the accident was $1530.
So far as the plaintiff’s claim for damages for gratuitous services is concerned, I am satisfied that such services have been, and will continue to be, required by the plaintiff. Those services are provided by the plaintiff’s husband. If they were not, the plaintiff would be required to engage another person to provide those services for remuneration. The plaintiff re-married on 16 November 2002. Counsel have agreed an appropriate notional rate for such remuneration is $20 per hour. Once more, in considering the gratuitous services provided by the plaintiff’s husband, I have been concerned to restrict them to those provided because of the injuries suffered by the plaintiff in the accident and the disabilities they have produced. I have also taken into account that the plaintiff’s husband would have assisted with some of those activities in any event. The plaintiff’s husband, whose evidence I accept, estimates that he spends about 20 hours per week on domestic chores including washing, cooking, vacuuming, cleaning, gardening. I turn to the issue of damages for future medical expenses.
The plaintiff spends $28.40 per month for Oxycontin, about $30 per month for Stilnox and about $14 per month for Panadeine Forte. She uses some of the Panadeine Forte for relief of her work injury symptoms on an infrequent and irregular basis. The rest relates to the injuries sustained in the subject accident. She visits Dr Daniell once per month to get her prescription for Oxycontin at a cost of $30. There is a possibility that, in the future, if her pain becomes unmanageable, the plaintiff might require a cervical fusion. It would be an expensive exercise: $20,000 or more. I will make allowance for that possibility in the assessment of damages for future medical expenses.
Special damages have been agreed at $17,997.91. The defendants have paid all but $137.95 of that amount.
I propose to award a lump sum by way of interest on the awards for past-economic loss and past gratuitous services.
Doing the best I can, I assess the plaintiff’s damages as follows:
Non-economic loss  $22,900.00
        Past economic loss  $15,000.00
        Future economic loss  $45,000.00
        Gratuitous services  $15,000.00
        Future medical expenses               $12,500.00
        Special damages  $137.95
        Interest  $500.00
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        Total  $111,037.95
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There will be judgment for the plaintiff accordingly.
I shall hear counsel as to costs.