Houghton v NSW Insurance Ministerial Pty Ltd

[2000] NSWSC 657

CITATION:	HOUGHTON v NSW INSURANCE MINISTERIAL PTY LTD [2000] NSWSC 657
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 16217/92
HEARING DATE(S):	29/04/99, 30/04/99,06/08/99
JUDGMENT DATE:	10 July 2000
PARTIES :	Patricia Ann Houghton NSW Insurance Ministerial Pty Ltd
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr T Hughes Jnr (Plaintiff) Mr A J Renshaw (Defendant)
SOLICITORS:	G H Healey & Co (Plaintiff) Turner Whelan )Defendant)
DECISION:	Judgment for plaintiff.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

MONDAY 10 JULY 2000

16217/92

HOUGHTON v NSW INSURANCE MINISTERIAL PTY LTD

JUDGMENT

1    HIS HONOUR: On 28 February 1987, the plaintiff suffered injuries following a collision between the car in which she was a passenger, being driven by Mr John Terrell, and a parked car. The plaintiff and Mr Terrell had, shortly before, left a dinner party at which Mr Terrell had been drinking. 2    The accident occurred just before 3am and, when tested at Manly Police Station at 4.10am, Mr Terrell was found to have a blood alcohol reading of 0.165 grams of alcohol in 100 mm of blood. Professor Graham Starmer, who is Associate Professor of Pharmacology at the University of Sydney, calculated that Mr Terrell’s blood alcohol concentration at the time of the crash was, in the circumstances, likely to have been higher than the level recorded by police and puts the most likely concentration of alcohol in the blood at 0.184. He concluded, not surprisingly, that whatever the extent of alcohol tolerance which Mr Terrell might have acquired, he “would have been highly intoxicated by alcohol at the time of the collision and...his ability to drive with safety would have been greatly reduced”. The doctor referred to various overt signs of intoxication which may be apparent to an onlooker. These included slurred speech, loss of co-ordination, unsteady gait, oscillation of the eyeballs and a flushed face. 3    The plaintiff’s case depends upon establishing, more probably than not, that the accident was caused by Mr Terrell’s negligence and the injuries for which she seeks damages were caused or at least had their inception in the accident. The defendant’s case is that the accident was brought about by the plaintiff seizing the steering wheel during the course of an argument with Mr Terrell and, in effect, driving the car into the parked vehicle. It submits, at all events, the plaintiff was aware, when she entered Mr Terrell’s car, that he was significantly affected by alcohol and, accordingly, was either entirely or in large part responsible for or contributed to the accident. The defendant also claims that the plaintiff has grossly exaggerated her disabilities which, even if they are present (which is disputed), were not caused by the accident. 4    The plaintiff conceded that, during the evening, she saw Mr Terrell drinking from time to time but did not notice how much he had drunk. When they came to leave she asked Mr Terrell whether he was “OK to drive” and accepted his assurance that he was. He appeared to her “to be fine” and I infer that she thought that he was not affected by alcohol to any significant degree. Mr Terrell’s evidence was that he did not feel that he was incapable of driving, although he had drunk alcohol during the evening. 5    It was Professor Starmer’s view that, in order to achieve the blood alcohol concentration which was demonstrated, Mr Terrell must have certainly ingested at least the equivalent of fourteen standard drinks. Mr Terrell denied that he had drunk this quantity. He described his drinking habits as being heavy on occasions. I accept the plaintiff’s evidence that Mr Terrell was not exhibiting any obvious signs of intoxication. Professor Starmer’s opinion was that a person who was not conditioned to heavy drinking and who drank alcohol to the extent of producing a blood alcohol concentration of 0.184 would have been rendered unconscious. The fact that Mr Terrell appeared to have been functioning at all with such a reading indicated that he was a very heavy drinker. His evidence in this respect was less than candid. As Professor Starmer observed, the more people drink the more they learn to conceal the signs of their intoxication and the less obvious those signs of intoxication become as the chronic tolerance increases. However, Professor Starmer thought that, even so, he would have expected Mr Terrell to demonstrate some slurring and some unsteadiness of gait. I should mention that, at the time Mr Terrell left the house accompanied by the plaintiff, there was some horseplay between him and their host which might have concealed any otherwise observable unsteadiness of gait. Any slurring may well have been, and I accept was, unnoticed by the plaintiff. 6    The effects of alcohol on the driving ability of heavy drinkers is that they can often manipulate the controls of the car with reasonable competence but cannot react in the correct sequence if confronted with anything unexpected. However, as I have mentioned, the defendant’s case is that, whatever the state of Mr Terrell’s sobriety, his lack of it did not materially cause or contribute to the collision. Mr Terrell said that when they were in the car an argument broke out between him and the plaintiff during which she reached across his body and wrenched the steering wheel to the left causing the vehicle to swerve and collide with the parked car. The plaintiff’s evidence was that she was very tired and dozed most of the way home but remembers opening her eyes just before the collision, turning her face in an attempt to protect it from injury. She felt her head strike the windscreen, has a vague recollection of being in the ambulance and remembers nothing else until she woke up in hospital. 7    The first account given by Mr Terrell of the collision was to a police officer who attended the scene. His notebook records the following statement being made by Mr Terrell -

“Q How did the collision occurred (sic)?
A As a result of the passenger of the motor car grabbing the steering wheel and pulling it towards the direction of the curb. As a result of which action the car went out of control and came into collision with a parked car”.

8    In October 1992, Mr Terrell regrettably suffered a cerebral haemorrhage from which he gradually recovered but, for a time, his memory was adversely affected. In February 1993, he made a statement to an insurance investigator concerning the accident in which he said that he could not then recall specific details of the route taken or the events leading to the accident. He said, however, that his memory of these events had since recovered. Mr Terrell said that, even in February 1993, there were “a couple of really important details that remained in my memory engraved as if in stone”. He said that one of these facts was the plaintiff reaching across him and wrenching the steering wheel out of his hands. He said that this fact was very important “because it endangered my life” and agreed that it was of critical importance as having caused the accident. Mr Terrell conceded, as was inevitable, that his statement to the investigator that he could not recall specific details of the events leading to the accident was, in substance, false. He stated that he had given the information to the investigator prior to making the statement, that he then decided to omit it and then decided to state falsely that his recollection failed him and that the investigator took down this latter statement without pointing out to him the omission of the crucial matter which had earlier been disclosed. I do not accept this as truthful. It beggars belief that the investigator would have failed to note the earlier disclosure. I consider that Mr Terrell not only signed a false statement in February 1993 but also was deliberately dishonest when giving evidence in this Court as to whether the statement made to the investigator was true and correct and also in his explanation for signing the false and inaccurate statement. 9    As it happened, the accident was seen by a Mr Reeve who was in a vehicle following that occupied by the plaintiff and Mr Terrell. He said that he noticed Mr Terrell’s car driving rather erratically although it was only going 40 or perhaps 50 km an hour. He had seen it weaving or meandering as it progressed for something like 40 or 50 metres and that it was in the course of this path that it struck the parked car. This evidence strongly supports the plaintiff’s account. 10    A further issue was raised by the defendant concerning whether the plaintiff was wearing a seat belt at the time of the accident. Her evidence is that she had put it on but that it was not retractable and she found it difficult to adjust with the result that it was still quite loose. I am satisfied that this was indeed the case. 11    The plaintiff and Mr Terrell lived together for about eight years between 1988 and early 1995, having married in 1992. It is clear that there is still a very high degree of animosity between them and I consider that this significantly affected Mr Terrell’s evidence. 12    Taking all these matters into account, including the way in which each of the protagonists impressed me whilst giving evidence, I conclude that the accident resulted from Mr Terrell’s negligent driving and that the plaintiff did not contribute to it in any way. 13    It appears that the first doctor to whom the plaintiff made complaint of pain in her cervical spine and lower back region was Dr David Rockman, then practicing at the George Street Medical Centre, close to the plaintiff’s then place of work. Although the plaintiff says that she had seen him earlier in relation to other complaints, her first consultation arising out of the injuries she suffered in the motor vehicle accident occurred on 15 May 1987. At that time she told the doctor that she commenced to complain of pain and discomfort in her neck and lower back region about six weeks earlier, which would place it at about the beginning of April and hence about a month after the accident. The plaintiff said that her earlier consultations with the doctor had concerned back problems and that when she told her solicitor that she had done so, her solicitor suggested that she should continue to see him. She complained to Dr Rockman also of extreme irritability since the accident and anxiety concerning both her symptoms and the facial disfigurement which she suffered. The doctor noted that, before the accident, the plaintiff had no symptoms referable to her cervical and lumbar region, a report which appears to be inconsistent with her evidence that she had earlier seen him for treatment to her back. Dr Rockman described the scarring as follows -

“Numerous scars were present involving the frontal region above the glabella and right side of the face. There is evidence of 2.5 cm scar radiating obliquely across the frontal region into the inner canthus and extending above the right eyelid. It is somewhat thick and pigmented. Further lacerations approximately 1 - 2 cm in diameter are noted over the right side of the face and there is evidence of approximately six extending in the right malor region and involving the contour of the mandible. In addition, there is evidence of a further ridged irregular scar irradiating outwards from the outer canthus of the right eye.”

14    Dr Rockman also saw the plaintiff on 20 and 25 May 1987. He noted that she was still complaining of persistent pain related to the cervical and lumbar spine although x-rays did not reveal any specific abnormality. Muscle spasm compatible “with a traumatic nature of the injury” was noted. The doctor referred the plaintiff to a chiropractor for mobilisation and manipulation and explained that the symptoms can pursue a chronic course. He noted complaints of frontal headaches and numbness over the right frontal region. The description of these symptoms varied a little in successive reports but I do not think that anything depends on this. 15    On 30 June 1987, the plaintiff again consulted Dr Rockman, who noted that there was no significant change in her symptoms. On examination there was tenderness to palpation of her neck and back with restriction of movements but no localising neurological deficit demonstrated. He noted a marked improvement in the facial disfigurement although there was some puckering near her mouth on the right side as to which he referred her to a cosmetic plastic surgeon. Dr Rockman said that he recommended that the plaintiff should go off work for three to four weeks, when he would review her again. The plaintiff was next seen by Dr Rockman about two months later. She complained of increased severity of symptoms especially in her upper back, making performing her clerical duties at work uncomfortable. Sitting, bending or lifting any heavy object was said by her to aggravate her lower back symptoms. His examination revealed pain and discomfort in her neck and back with many restrictions of movement but no localising neurological deficit. Dr Rockman thought that the plaintiff had “residual signs and symptoms of musculo-ligamentous injuries to the whole spine and needed on-going medical support in the form of manipulation and immobilisation.” He noted that the facial scarring was remarkably improved and thought that further improvement would occur. His view was that she did not require any cosmetic surgery. I should add here that the signs of scarring at present could only be described as minimal. 16    The plaintiff saw Dr Rockman in mid November 1987, complaining of a “recurrence of pain and discomfort in the lumbar sacral region”, which suggested that there had been some relief in the period between her attendances upon him. His examination demonstrated marked muscle spasm with limitation of movements of the plaintiff’s lumbar spine but, again, no localised neurological deficit. His report noted that he was treating her with “physiotherapy in the form of shortwave diathermy, ultrasound and anti-inflammatory medication.” It appears that the plaintiff returned later on the same day following some treatment with definite improvement. The doctor noted that the plaintiff complained that she still had numbness on the right side of her face but he thought that this was compatible with damage to cutaneous nerve endings. Dr Rockman saw the plaintiff three months later. She informed him that her back symptoms varied in severity from time to time and she noted improvement on rest, finding that her work, especially when operating a word processor, exacerbated her symptoms. The results of examination were, broadly speaking, consistent with what he had earlier noted. 17    On examining her in July 1988, Dr Rockman noted that over the previous five months the plaintiff complained of acute attacks of severe pain in the lumbar sacral region which incapacitated her for several days, requiring complete rest. These were more severe than pain experienced in her neck, which tended to occur at work whilst sitting in the one posture operating a word processor. She continued to complain of numbness and pounding headaches related to the right fronto-temporal region. The plaintiff next saw Dr Rockman in April 1989, complaining, essentially, of the same symptoms. Straightening exercises of her neck and lower back region was the main form of treatment she had undertaken and she was careful to avoid situations which might cause any undue stress or strain to her back. Six months later, Dr Rockman’s examination revealed some restriction of movement of the plaintiff’s cervical and lumbar spine together with tenderness to palpation but fairly good movements of her spine were noted. He regarded the plaintiff’s condition as having stabilised and suggested that she should continue with her exercise programme and to avoid situations which might cause any undue strain. The situation was substantially unchanged when he last saw her in June 1990 although her symptoms were somewhat more severe on that occasion and he advised her to take rest leave for one week. 18    During 1987, 1988 and 1989 the plaintiff was working at OTC doing clerical and keyboard work. She described her work situation in the following way :

“I had time off work. As I stated before I am a single parent and had to work to maintain my daughter as I got no maintenance, nothing for her. So I guess I just plodded along, plodded along, tried to do my best. I may have to have some time off. I was doing shift work which gave me an extra week’s holiday a year so when I did take a break I was able to take a good break, which I think helped me a lot. I had a lot of time off work. I tried to take it easy when I got home. I just kept going the best I could. I’m not the sort of person - I want to work, I like working. I didn’t want to stop work. I wanted to keep going. I wanted a decent life.
Q. What, if anything, about the performance of your work at the OTC did you find troubled you by reason of injuries?
A. Very hard when you are there and you are constantly at keyboards. Sitting down for long periods, my back would ache lifting things, it hurt. I would have to ask people to help me all the time. They would get cranky with me, you know. Because you know what people are like, they don’t like doing things for you all the time. Yes, I found it very hard to keep working.”

19    On 3 July 1992, the plaintiff accepted a voluntary redundancy package in part because her work changed and she was required to carry heavy files and move a large compactus on which they were stored. Although she sought to be moved to other work, this was refused. There were other reasons, however, the plaintiff said, for leaving work. In 1992, she married Mr Terrell with whom she had been living since 1988, although this relationship ended in early 1995. 20    The plaintiff explained the delay in seeking medical treatment for her back by saying that, although her back was sore after the accident, she simply assumed that it would improve with time and that it was only after it did not do so that she sought help. This explanation is not altogether consistent with the history noted by Dr Rockman at the first consultation. I consider that the plaintiff’s unreliability in this respect is due to the lapse of time rather than dishonesty. I do not regard her evidence in this regard as untruthful. The doctor had no difficulty in ascribing the symptoms of which the plaintiff complained to the accident in light of the history which he was given. It emerged in cross-examination that in May 1988 the plaintiff attended her local general practitioner when she fell in her kitchen whilst taking an item out of the freezer. The doctor noted that she complained of terrible upper lumbar pain. The plaintiff said that she did not recall the incident. No note was made of any complaint, if there was one, concerning a back injury caused by the motor vehicle accident but I do not consider that this is significant. The plaintiff had already made continuous complaints to Dr Rockman who accepted that her condition was chronic. I accept that this injury caused a short term acute episode, to which the plaintiff was especially vulnerable because of the injuries caused in the accident. 21    Of more concern is the evidence of Dr Margaret Bryce, who treated the plaintiff since about mid 1990 for various ailments, as her local general practitioner. Dr Bryce took over the care of the plaintiff on 28 July 1990 and took what she considered to be a full history, asking her about any medical conditions from which she suffered. This consultation is recorded on her notes for that day. There is no history of chronic back or neck ache or indication that any medication was being taken by the plaintiff for these problems. It is clear that the questions that were almost certainly asked on this occasion were calculated to elicit complaints such as chronic back pain. 22    The first reference to any motor vehicle accident was made by the plaintiff to Dr Bryce in March 1993 when she requested a referral to a neurologist and an orthopaedic surgeon, as directed by her solicitor. At that time she gave a history of being a passenger in a motor vehicle accident and going through the windscreen, suffering loss of consciousness and injuries to her upper and lower back which caused chronic headaches and back pains. However, the only times upon which the plaintiff presented with headaches were in May and June 1993 and only one presentation with lower back pain on 6 August 1993 which, according to the doctor’s report, was precipitated by straining as she got out of bed. The doctor considered that this episode of pain was an exacerbation of her previous lumbar dysfunction caused by the motor vehicle accident and opined that the plaintiff had made “a full recovery”. Dr Bryce noted that the plaintiff presented in September 1995, with “acute chronic back pain” (sic) during coitus , when a diagnosis of ligamentous strain was made. Ten days later she again attended Dr Bryce and gave a history of having fallen in the garden the previous week, causing aggravation of her lower back symptoms, returning a month later with continuing back pain. Something over four months later, the plaintiff again attended Dr Bryce with a complaint of bruising on her left buttock following a fall on stairs, with no significant exacerbation of her back pain. A month later, the plaintiff again complained of chronic lower back pain, stating she had problems with bending. No treatment was required. 23    In June 1996, the plaintiff returned to Dr Bryce for what was described as a review of her lower back pain, describing it as a generalised ache which prevented her from sitting for long periods or lifting any significant weight. She complained of pain in her cervical, thoracic and lumbar spine and sleep disturbance. She said that she was using medication intermittently to control pain. She denied symptoms of sciatica. Examination again revealed a restricted range of movement but no neurological deficit. Such symptoms were consistent on all examinations following presentation by the plaintiff with chronic back pain. The plaintiff did not again attend on Dr Bryce. Dr Bryce’s summary of the plaintiff’s condition was as follows -

“No doubt her pain limits her ability to attend to household duties...but I do not consider her an invalid due to her injuries. Some days her pain and stiffness will be worse than others, but I do not find on examination that she is incapable of light housework, negotiating stairs or desk duties at work. Exercise and strengthening with physiotherapy should decrease the pain and improve her range of movement and return her to near normal ability. I do not feel that following her last examination by myself on 14/06/96, that she required home help.”

24    Overall, Dr Bryce’s view was that the plaintiff’s symptoms were consistent with her long term effects of traumatic soft tissue injuries which were sustained in the motor accident. She thought that the plaintiff was unable to work for prolonged periods at a computer due to her neck and back pain and required regular stretching and job rotation. She thought that the plaintiff would require intermittent physiotherapy for five to ten years to improve overall mobility and assist in pain management. 25    Generally, the plaintiff’s evidence concerning her physical disabilities is that she suffered from chronic neck and back pain and headaches which she sought to control by taking care not to subject herself to physical strains and taking pain killers from time to time. She says that she started to attend Dr Bryce’s surgery because her back had started to give her “a lot of trouble again.” I am sceptical about the plaintiff’s claim substantially to the effect that her back caused continuous pain of a moderate to high degree. I think the probability is that when she was not in full time work the pain usually was light to moderate, often very slight and only occasionally severe. 26    After obtaining a diploma in 1993 from TAFE at Meadowbank, which took most of the year, the plaintiff commenced work in January 1994 for a real estate agency at Lane Cove as a sales person. I accept that she found it difficult to cope physically with the demands of this employment. She often needed to climb stairs, carry signboards and quantities of documents. The hours were long. She found that it was becoming too physically demanding for her and resigned in June 1994. The plaintiff did not immediately take up employment but thought that she should rest her back for a while. In November 1995, the plaintiff accepted a position as office manager with the real estate agent for whom she had earlier worked. However, the long hours, the need to carry heavy files and documents in a small office, climbing the stairs and other frustrations with the office computer systems, led her to leave this employment in June 1997. She found that her problems with her back were leading to her taking too much time off, although her employer made allowances for this. The plaintiff then obtained a series of temporary jobs, mainly working at a desk. When a permanent position became available in December 1997, the plaintiff took it, but after a year found that the physical strain engendered by lifting files and similar objects, and sitting at the keyboard for lengthy periods of time became too difficult for her, and she decided to take time off to rest and then attempt to find more suitable employment. 27    The plaintiff said that she suffers constantly from pain in her neck and mid and lower back, exacerbated by physical activity, she has unpleasant sensations on her head where the lacerations were sutured and headaches once or twice (sometimes more often) a week. She finds that she needs to take medication for her pain on a daily basis. As at trial, she said that she would like to obtain employment but had nothing in mind which would be suitable for her. She thought that she could only take temporary work for perhaps six to eight weeks as long as she could rest for a time after that and even during that time could only work part time for two to three days a week. The plaintiff said that, at the date of trial, she was suffering particularly severely from pain in her back and did not think that she could work at all until the episode was over. The plaintiff’s complaint of continuing symptoms of pain and discomfort in the area of her facial injury was supported by Dr Catherine E Storey, whose report of 5 April 1993 was tendered. Dr Storey, however, thought that local injection of the right supra-orbital nerve may be all that was required for pain relief. The evidence does not disclose whether this procedure, which seems a reasonable one, has been undertaken by the plaintiff. It seems to me that I should work on the basis that, at least from 5 April 1993, the plaintiff should not recover additional damages for her continuing symptoms in this regard, if any, although I have factored this element into my award of general damages. 28    Dr Alex Ganora, a specialist physician in physical and rehabilitation medicine, examined the plaintiff in March 1993. His examination revealed painful trunk and neck movements but only mild mid thoracic pain on full flexion and mild lumbo-sacral tenderness. Neurological examination in the upper and lower limbs was normal. It was Dr Ganora’s impression that the plaintiff was suffering from persisting cervico-thoracic and thoracic and intervertebral joints strains which were consistent with the effects of the motor vehicle accident. He felt that she needed active restoration of function through continuing physiotherapy and an exercise programme. The plaintiff was also seen by Dr Milder, consultant neurologist, in September 1994. He was of the view that the plaintiff had sustained a concussive injury and severance of cutaneous fibres in the area immediately adjacent to the scar within the right frontal area of the scalp. He presumed her migrainous headaches were post-traumatic and thought that she appeared to have sustained cervical, thoracic and lumbar soft tissue and ligamentous injuries with a suggestion of cervical and/or intervertebral disc protrusions. He thought that the plaintiff’s outlook was uncertain, with a sense of numbness within the right frontal area of the scalp likely to remain permanently, though possibly diminishing in time. He considered that her other symptoms of pain might diminish with appropriate medication and physiotherapy but that further significant improvement was unlikely. Dr Milder saw the plaintiff again in March 1999. Following examination, he considered that she continued to suffer the effects of the injuries which he noted on the earlier occasion. Dr Milder thought that whilst she was suffering from an episode of increased pain she should have physiotherapy three times a week for a period of eighteen months to two years. In Dr Milder’s view, the plaintiff would have difficulty from her back (speaking generally) if she had to stand or sit for long periods. Computer or word processor work frequently requires neck flexion and this would be quite likely to aggravate neck pain if undertaken for an extended period. He thought that the plaintiff might have difficulty working long hours for six days a week, negotiating stairs or uneven surfaces and lifting heavy objects or in an awkward position. The doctor was cautious in describing the extent of the plaintiff’s disability, the worst case for her, as I take it, being that she will suffer a lingering disability consisting of “some degree” of restriction of movement, stiffness and pain aggravated by exertion, usually of the more strenuous kind. 29    The plaintiff also consulted Dr Ronald Rivett, an orthopaedic physician, who examined her in August 1994. Broadly speaking, Dr Rivett’s findings were consistent with those of the other doctors consulted by the plaintiff. He concluded that the plaintiff was unfit for heavy lifting, excessive bending, stooping, postural strains and excessive movements of the neck, prolonged sitting or standing, pushing, pulling and the like. He assessed impairment of the plaintiff’s neck at 15% and impairment of her back at 10%, considering that the condition was probably stable but that manipulative techniques, exercise and deep massage with appropriate injections might have the potential for marginal improvement. 30    The defendant qualified Dr Michael de Burgh, an orthopaedic surgeon, who saw the plaintiff in October 1989. He accepted that the plaintiff had suffered a soft tissue injury of her cervical, thoracic and lumbar spine regions resulting in a mild to moderate degree of incapacity. He noted the presence of muscle spasm in the lumbar region. Overall, he regarded the plaintiff as suffering from only a mild degree of disability. 31    Dr John Furber examined the plaintiff for the defendant on 3 May 1993, noting that the plaintiff did not demonstrate any physical incapacity in normal movements. Dr Furber did not refer to complaints of pain and his report does not sufficiently describe the mode of examination to enable me to give it much weight. Dr Wolfendon, consultant neurologist, saw the plaintiff in June 1996 at the behest of the defendant’s solicitors. Whist Dr Wolfendon thought that the plaintiff could well have sustained some bruising of muscle and ligament in her back as a result of the accident, he thought it “extraordinary” that the severe disability which she described (in terms, broadly speaking, consistent with what she had told her other doctors) should continue for so long. He would have expected her neck and back symptoms to improve and could see no reason why they should become worse. 32    Dr Ireland, a consultant orthopaedic surgeon, examined the plaintiff in July 1996 at the request of the defendant. He noted that there was no physical limitation of movements although there were complaints of pain at the limits of the normal range. He said that despite her continuing complaints, he could not find any evidence of impairment of function of her cervical and lumbar spine. I think it fair to say that Dr Ireland simply did not believe her complaints of pain when he saw the plaintiff again in March 1999. Of course, it therefore followed that he considered her to be quite fit to undertake ordinary physical activities. Whilst I think that there was a reasonable basis for the Doctor, who described the course of the consultation in detail during his evidence, to have been sceptical of the degree of the plaintiff’s complaints, I do not accept that the examination which he conducted, accepting as I do that he has reliably reported its course, justified their complete dismissal. Dr Ireland accepted that there was clinical significance in the demonstration of muscle spasm although, of course, he himself did not detect it. However, other doctors did report this finding and, to that extent, there is objective support for the plaintiff’s claims. The doctor considered that the plaintiff grossly exaggerated her symptoms. His reluctance to frankly acknowledge that her lack of any attempt to limit the extent of movement he induced was inconsistent, at least to some extent, with pretence, led me to discount the significance of Dr Ireland’s adverse opinion of the plaintiff. 33    On the whole, I prefer the evidence given by the doctors called on the plaintiff’s behalf, especially Dr Bryce who, although a general practitioner, had seen the plaintiff over a significant period of time. 34    I should say, in fairness, that I think that the plaintiff did tend to be somewhat dramatic in describing her pain and disabilities; she also seemed very defensive and tended to be an advocate for her own cause and fence with counsel rather than respond directly to some questions. Even so, I have concluded that , in general, the plaintiff’s evidence was substantially truthful and reliable though I formed the view that her descriptions of the extent of her incapacity were somewhat exaggerated. She may not have been conscious of this; rather, this seemed to be the usual mode of communication of a somewhat histrionic personality. (I might mention that I do not consider that in the context of this case, the plaintiff’s heroin addiction is material.) I accept that the plaintiff suffers continuing disability and pain of a mild to moderate, occasionally severe, extent from injuries inflicted during the accident, which adversely affects her capacity for work and enjoyment of life.

General

35    The plaintiff, who was born on 6 May 1957 in New Zealand, completed her schooling in her fifteenth year in 1972. She worked as a typist for three years and as a receptionist/typist for a number of years more. In October 1980, the plaintiff commenced working as a telegraphist with the Overseas Telecommunications Commission, later moving on to administration, where she was working at the time of her accident. I have already mentioned some of her work history following the accident. The plaintiff has a daughter now aged 20 years. She has been living with her present partner since early 1995. Before the accident the plaintiff was actively involved in studying and then teaching ballet, which she clearly enjoyed. She also enjoyed morning jogging and occasionally playing golf.

Economic Loss

36    Although the plaintiff said that, following the accident, it was necessary for her to take time off in excess of sick leave entitlements, averaging perhaps one or two weeks a year, no claim is made in this respect. This no doubt reflects the general nature of the evidence and it is therefore unnecessary for me to consider this matter further. On 3 July 1992, the plaintiff accepted a voluntary redundancy package from OTC. No claim is made in respect of her not being in employment for the next twelve months, I assume because the redundancy payments covered this period and she commenced a full time diploma in property agency at TAFE which covered the 1993 calendar year. The schedule of past economic loss tendered by the plaintiff shows a claim for twenty six weeks from 1 July 1993 to 31 December 1993. However, as the course which she attended was full time for the whole year, I do not see a basis for holding the defendant to account for this period. The plaintiff worked for six months with Ray White Real Estate, earning slightly less than the average all employees’ weekly sum. As no point has been made on behalf of the defendant that this latter amount is an inappropriate benchmark for the plaintiff’s earnings, the difference of $55 should be allowed. The plaintiff did not work for the next eighteen months, saying that the first two months of this was necessary rest for her back and, although her evidence is a little unclear about this, she did not go back to work as, being married to Mr Terrell at the time, this was not necessary. Accordingly, I do not think it appropriate to award damages for more than the two months recuperation period. As to this time, the question arises whether I should regard her as having been completely incapacitated for work. Doing the best I can, I think that the plaintiff was capable of working between three and four days a week, and for want of a better measure, I think that the fair allowance for the plaintiff’s loss is 25% of average weekly earnings, hence I allow $900 for this period. 37    The plaintiff said that she returned to employment at Ray White’s in November 1995 and worked there until June 1997. During this period, it appears that her net weekly earnings were about $130 less than the average to 30 June 1996 and then about $80 less than average to 30 June 1997. Rounding out the numbers, as I consider that precise arithmetic is inappropriate, I allow $8,500. The plaintiff claimed that during her eighteen months’ employment, she needed to take time off to rest but, it appears, she did not suffer any loss of wages for such occasions. 38    Following the plaintiff’s departure from Ray White Real Estate, she worked in a number of temporary jobs, finally obtaining permanent employment in December of 1997, remaining there until December 1998. I accept that the plaintiff’s loss for this period is fairly represented by the difference between her net weekly earnings and average weekly earnings because of the limitations which her incapacity placed on her employment potential. She has not worked from 25 November 1998. I allow in respect of this period the sum of $5,000, again rounding out differences. 39    The plaintiff said that she left her last position because she was feeling unwell and decided to take time off to rest and then to obtain more temporary work. Although I accept that she may have been unable to work for perhaps four weeks after ceasing full time employment, there is no evidence that she has not been able to work since that time. Accordingly, I allow $2,000 for the period to the end of 1998. As I have mentioned, at trial the plaintiff said that she could not work at all because she was, as she put it, “going through a particularly bad episode at the moment with my back”. There was no evidence as to how long she had been feeling this way. I consider that the appropriate course is to award a sum which reflects in a broad way my view of her earning capacity to date, which I assess at 75% of average weekly earnings. This yields a sum to judgment of $9,500. In respect of past superannuation, I estimate the loss at $2,500. 40    The total awarded under this head is $23,400.

Future Economic Loss

41    It was not disputed that her work expectancy is twenty three years, yielding a multiplier of 71.2. The appropriate staring point is $118 per week. Discounting 15% for vicissitudes, this yields an amount of $72,327. So far as loss of future superannuation is concerned, I calculate this to be $8,680. 42    Total awarded under this head is $81,007.

Griffiths v Kirkemeyer

43    Except as mentioned below, I consider that three hours a week domestic assistance is a reasonable allowance in this respect. There is no dispute that, so far as the past is concerned, the average rate is $12.92 an hour. I have concluded that both the plaintiff and Mr Terrell contributed to the expenses of a housekeeper whilst they lived together. Otherwise, I accept that, during this period, Mr Terrell did not assist the plaintiff, to some extent, with household and personal tasks except on the odd occasion. It is unreal to deal with this period in any arithmetical way. I allow for this period (which, so far as I can determine, was about seven years), the sum of $10,000. 44    The remaining number of weeks to judgment is 331, yielding a sum of $12,830. So far as the future is concerned, I do not consider that more than three hours a week is appropriate, although I accept that the plaintiff’s physical condition has now become chronic and is unlikely to improve. It is not disputed that the relevant sum is $15.33 an hour. This yields, after discounting for vicissitudes, $35,866.

The total under this head is $58,696.

Medication

45    The plaintiff claims $65 a month as an average expense in the past. I consider that the evidence to support this estimate is insufficient to permit an allowance of this sum. Accordingly, doing the best I can, I allow $50 a month, yielding the sum of $8,688. For future medication I allow the amount of $60 per month to take into account increased prices (including GST), giving $11,698. 46    The total is therefore $20,836.

Future Treatment

47    I think it is reasonable to allow the plaintiff three visits a year to a general practitioner. At $38.85 a visit this amounts to $2,057. A specialist consultation each year should be allowed. At $75 a visit, this amounts to $1,321. So far as physiotherapy is concerned, Dr Milder proposed a two year programme three days a week and Dr Bryce, continuing “intermittent” treatment for five to ten years. Overall, I consider that $12,000 is a reasonable allowance for this item. The total under this head is thus $15,378.

Future Economic Loss

48    For the reasons already given, I assess he plaintiff’s capacity at 75% of average weekly earnings of $469.01. The weekly figure representing her loss is thus $117.25. Applying a multiplier of 721.1 less 15% for vicissitudes, the total amount is $71,866.

General Damages

49    I have already mentioned the plaintiff’s back problems. She also suffers from frequent painful headaches. The injuries to her face cause not only some distress arising from the slight residual scarring but also discomfort. I accept that the plaintiff can no longer dance or teach at ballet, although the former could not have been regarded as a life-long activity. I also accept that sexual activity the plaintiff can enjoy is limited to an unsatisfactory and somewhat frustrating extent. The plaintiff can no longer play golf, a sport she enjoyed. Work will always be limited. Overall, I consider that general damages should be assessed at $60,000.

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Last Modified: 09/26/2000