Ion by his next friend Despina Ion v Harmer - [2013] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ION by his next friend DESPINA ION -v- HARMER [2013] WADC 100

CORAM: FENBURY DCJ

HEARD: 21 & 22 JANUARY 2013

DELIVERED : 20 JUNE 2013

FILE NO/S: CIV 79 of 2012

BETWEEN: ANTHONY JAMES ION by his next friend DESPINA ION
Plaintiff
AND
CHRISTOPHER HARMER
Defendant

Catchwords:

Personal injuries - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr K R Pratt
Defendant: Mr D R Cline

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Nil

FENBURY DCJ: Anthony Ion, seeks damages for personal injuries he suffered in a motor vehicle accident that occurred on his 13^th birthday, 9 March 2009.
Anthony was born on 9 March 1996. Because he is not yet 18 years old, he sues by his next friend, his mother, whose name is Despina Ion.
The accident involved two motor vehicles colliding at a roundabout. The negligence of Mr Harmer, the other driver, has been admitted. The court is only required to assess damages for the injuries that Anthony received.
Anthony was in the right rear seat behind his mother who was driving him to school. The other car hit the 'top left hand side' of Anthony's vehicle and it spun to the right. He had braced himself before impact by hanging onto the seatbelt with both hands. He was 'shaken sideways' and hit his head on the window.
Immediately after the impact, Anthony said there was 'silence' and 'me just being excited because it was my first crash'.
Anthony did not suffer any pain straight away. But he felt a 'very small pain towards night' where 'my shoulder and my neck joined to the right side and my lower back'.
Anthony said the pain increased overnight and the next day his mother took him to see Dr Pollard who was the family GP. Anthony said in evidence that when he saw Dr Pollard he had pain in his neck, 'my shoulder joins to the right', his lower back and his right ankle.
In contrast Dr Pollard's written notes of that consultation indicate Anthony complained of 'pain in neck and upper back'.
Anthony said that after that first consultation with Dr Pollard, 'the pain was increasing for about two months' after the accident, being pain to 'my right shoulder on my neck joint and my lower back'. He said that his pain interfered with his school work, his back pain 'wouldn't allow me to sit properly in my seat without feeling some pain so I'd always have to change my posture during class'.
He said the pain had 'stayed the same' since then. He said it was a 'constant 2 1/2 out of 10, I'd say. Its there. Its really agitating'. The pain Anthony referred to was 'where my right shoulder and my neck join and my lower back' (ts 7).
Anthony described that his pain interfered with his ability to play sports. Prior to the accident he played tennis and basketball and he was interested in rugby union. He had started playing rugby just before the accident. He played in the scrum, in the second row. This caused pain in his left shoulder. After two months he ceased playing because he felt too much discomfort.
Anthony has not returned to rugby union which he enjoyed and which his friends were playing.
Anthony described that he had undergone physiotherapy from time to time when his back was painful. This provided relief but only for a few hours. He said that the pain in his back would 'act up' when he tried to play sports, especially basketball and jogging and especially in the lower back. He said he did not keep playing sport and he also stopped running because his ankle hurt. When his ankle 'acts up', it is '6.5 on a scale of 10 for pain'.
In examination-in-chief, with respect to his ankle, Anthony said that he suffered from ankle symptoms the second day after the accident:
Since the second day:
A:it, like, come out of nowhere, just affects me when I'm walking and it just happens, and I'd have to start limping.
Q.… is that sort of all of the time or only - or only some of the time the ankle injury - that pain sorry?
A:Yeah. And at some times. It doesn't happen too often.
Q.Okay. So how often would it happen? Once a year? Once every three months?
A.Once every couple of weeks.
By reference to his secondary school studies, Anthony did not describe significant interference because of pain. However when he went body boarding or bike riding in Year 12 the pain returned.
He also said that he used to suffer from headaches 'once every two weeks'. This had been the same since the accident and it was not alleviated by Panadol.
In examination-in-chief, ts 10, Anthony complained of headaches after the accident. He said they came on probably the next day or a few days after. He said he gets headaches once every two weeks and this has 'pretty much been the same since then'. He takes Panadol when they happen but 'they don't really help too much'. On a scale out of 10 with respect to headaches, Anthony estimated 7 when they were 'bad ones'. Otherwise they might be '3 out of 10'.
In cross-examination Anthony said that he does not play any sports now but that he does engage in outdoor education activities. He is not able to do jogging or physical education. He went body boarding the previous year at school.
Anthony admitted that he had suffered other injuries from time to time through skateboarding. In 2008 he had banged his head sufficiently significantly to have a CT scan. He also injured a leg.
He also suffered a blow to the head with a hockey stick on one occasion. Anthony was taken through his medical notes. He agreed that 'something had happened at school' but was disinclined to speak about it.
In cross-examination, Anthony described that he had been body boarding at the beach since the accident. He did this through school. He did this once a week for about 15 minutes. He also engaged in swimming classes.
Anthony described that he had been seeing Dr Panegyres, a neurologist, for his headaches. He understood that they were migraine headaches. He said he had never had headaches before the accident. He did not seem to understand about migraine headaches.
Anthony said that he had joined the Cadets about two months after the accident and he had remained with them for two years. He was able to complete fitness tests but 'not without trouble'.
Anthony described playing in the second row in the scrum during rugby at school. He admitted that his position was physically stressful and that it put pressure on his neck and back. He admitted being able to carry out the physical requirements but he said he was not able to do so 'without trouble'. He said he found the game difficult and it did put a strain on his neck and back and he gave it up because it was 'too difficult to continue'.
With respect to the incident at school that Anthony declined to discuss in chief, he appeared to concede that he had some trouble sleeping and became depressed and teary during that time. However, he had a full range of back movement. Anthony agreed that he had a variety of investigative procedures on his back but that nothing was identified as being abnormal. He agreed that he has always been able to move his neck and back fully since the accident. He does not complain of loss of function but of pain and discomfort.
Anthony was asked questions about his activities with Cadets when he was at school. He agreed that after the accident, through the Cadets, he would go on camping expeditions for up to four days, sometimes in the bush. He slept on the ground in a two or three man tent. He admitted that he was able to do this.
In re-examination Anthony explained that he did not leave the Cadets because of any particular physical issue arising from the accident but because there had been a communication problem with those in command and he did not like being bossed around.
Anthony gave his evidence in a soft voice and was sometimes difficult to understand. He had a tendency to mumble. He was diffident and sometimes appeared disinterested.
I am satisfied to the required standard that Anthony did suffer some aches and pains following the accident. He had discomfort in his back, upper and perhaps lower, neck and discomfort from an ankle. So far as the ankle goes, I cannot quite see how that was caused by the accident but nevertheless I do not disbelieve Anthony that he had discomfort there. As for his claim relating to headaches, the evidence was they are caused by migraines. Although they came on after the accident I am not persuaded they were caused by it.
The plaintiff's general practitioner, Dr Mark Pollard wrote three reports which were exhibits 4.1 to 4.3 inclusive. The first report dated 25 May 2009 records injuries and symptoms as 'pain in neck, back, right ankle'. I have already noted that the contemporaneous notes made by Dr Pollard refer to 'pain in neck and upper back' with no mention of an ankle. The ankle is however mentioned on 24 March, some 15 days later. It is difficult to connect the ankle symptoms to the accident.
In the medical report of 25 May 2009, Dr Pollard mentions the role played by Anthony's mother, Despina, during the consultation. It was she who spoke to Dr Pollard and gave the history of the matter. There is nothing of any great significance in that, given Anthony's age. However, it can be seen that Anthony's mother did play a significant role. Dr Pollard reported:
He has been having difficulty breathing, dizziness and eye blinking. He has been referred to a neurologist to assess his symptoms. His mother reports that it is more noticeable since the accident and she is thinking it is possibly caused by the accident. She admits that it could be due to anxiety. Possibly this could be due to the accident, and possibly it may not. Anthony himself does not seem to think that the accident was all that upsetting. As he is with his mother, he looks to her in answering so I think there may be some uncertainty on his part.
In Dr Pollard's second report, a year later in May 2010, he reports Anthony's symptoms as some headaches, nausea, 'which is migraine'. He reports that Anthony's condition has improved considerably and may continue to improve. Anthony was doing quite well.
A year later, in June 2011, Dr Pollard said 'I have only seen him a couple of times since the last report. In February he was reporting pain in his back, head and neck. There was no loss of movement'.
And further, into the report:
He is young and should have a good future. As the symptoms are subjective it is difficult to predict what will happen in the future.
As to treatment, Dr Pollard said it 'would be the usual over the counter medicine for minor pain in modest doses'.
In the final report, exhibit 4.2 dated July 2012, Dr Pollard wrote that Anthony's ongoing injuries and symptoms were 'headaches, pain in lower back, neck, right ankle'. He said that 'his mother seemed to indicate that nothing was ever of any benefit for Anthony'.
Dr Pollard wrote 'I would be reluctant to prescribe strong drugs to a young boy'. And later, 'as the symptoms are subjective, it is difficult to predict what will happen in the future'.
It is clear from both his evidence and what he said in his reports that Dr Pollard felt that Anthony's mother was playing a significant role in the matter.
In his evidence-in-chief, counsel for the plaintiff Mr Pratt sought to substantiate a claim for special damages by leading evidence from Dr Pollard. Dr Pollard was not of much assistance as to that. Objection was taken about the vagueness and uncertainty of the evidence.
Dr Pollard was not particularly helpful in his evidence. I do not mean to criticise him personally but questions he was asked and issues about which he spoke did not really assist the court. At least that was my view about his evidence-in-chief.
In cross-examination he spoke of having referred Anthony for physiotherapy.
In cross-examination Dr Pollard was asked:
Q.So were you reliant on his mother to a very large degree on his symptoms and what was causing them and how bad he was; those sorts of things?
A.Yes it was.
…
Q.So is it the case that the little boy wasn't actually making a lot of complaint but it was coming from his mother?
A.Well, the impression is that his mother is aware of what's happening and she's speaking on his behalf. (ts 50)
…
Q.This is in the report 'Anthony himself does not seem to think that the accident was all that upsetting. As he is with his mother, he looks to her when answering, so I should think there may be some uncertainty on his part'.‑‑‑You seem to be implying, with respect, that perhaps there's not much wrong with this boy and that it's his mum that's being perhaps overly concerned about him. Is that fair?
A.Well, this was fairly early on after the accident.
Q.Yes?
A.So I wasn't entirely sure how much the boy was suffering, because he didn't speak for himself terribly much.
Q.Mm mhh?
A.But the fact that he looked to his mother doesn't indicate that there was anything that was not correct in what was being said.
Q.But it also doesn't indicate that he's really suffering much, but his mum was possibly more concerned, and perhaps rightly so, but it was because she was so concerned that she was bringing him back to you, and he was not really complaining?
A.Well, he is a young boy, and obviously parents speak on behalf of their children, and … we assume that the parents have the best intentions for their children.
Dr Pollard then explained having referred Anthony to Dr Peter Panegyres, a neurologist. This related to Anthony having complained of difficulty in breathing, dizziness and eye blinking.
These symptoms were not alleged to be caused by the accident.
Dr Pollard conceded that when he has described Anthony's symptoms as 'subjective' he meant that Anthony has complained of pains but that no objective physical signs were found.
Dr Pollard was taken through his notes. It can be seen that Anthony suffered from a variety of other medical conditions from time to time, including Hashimoto's Disease and its effect upon his thyroid gland.
Having regard to Dr Pollard's evidence it is apparent that Anthony suffered mild/moderate pain and discomfort in his neck and back after the accident as a result of soft tissue injuries sustained in what was a relatively minor collision.
However, he suffered no loss of function and retained a full range of movement in his spine.
About three months after the collision he was plainly well enough to engage in school boy horse play and sports. For example, he was struck on the left side of the face with a hockey stick which caused swelling and bruising but otherwise no significant injury.
By reference to the medical notes he also seemed to have suffered a variety of other complaints and ailments in the period since the accident. He complained of headaches in August 2009, and was 'a bit upset at school'. Soft tissue injury is mentioned in addition to 'anxiety'. In September it appears that his headaches were improving. He had a full range of movement in his neck. Side effects from his thyroid difficulty were recorded towards the end of 2009. In January 2010 he was brought in by his mother who sought a referral. She said that Anthony was anxious and depressed. On 14 January there is the first record, in the notes, of Anthony complaining of pain in his lower back. This is 10 months after the accident.
In February he complained of occasional headaches, dizziness and insomnia. Thereafter his complaints appeared to shift between anxiety, coughs and sore throats. In July 2010, he complained of headaches but also upper back pain. His medical attendances during the period appear frequent but many of them are not related to any residual problems relating to the motor vehicle accident.
In May 2011, some 2 years and 2 months after the accident, Dr Pollard recorded that Anthony was 'having anger issues. Bit depressed. Sleeping all day. Trouble with foster brother, Ty Beck. Hits him. Threatens to kill him. Attention seeking +++. With him one year. Behavioural disorder'. There was a complaint of depression and discussion of a mental health care plan for Anthony.
In June 2011, Dr Pollard records Anthony 'complaining all the time about back and legs. Pain right ankle. Pain upper and lower back. Headaches'. On examination Anthony had a full range of movement in his neck, back and ankles.
The picture that emerges from the medical attendances Anthony had with Dr Pollard as recorded in his notes is that Anthony has suffered relatively mild soft tissue injuries as a result of this accident but has always had a full range of movement in his relevant areas, his neck, his spine. The significance of the frequency of his attendances upon his medical practitioner is explicable as much by a variety of non-accident caused factors, or is certainly complicated by the present of those factors and does not support an assertion that he suffered significant injury following the accident.
Anthony was referred to Dr Peter Watson, neurosurgeon for a medico‑legal report.
Mr Watson saw Anthony on 13 August 2012 near 3 1/2 years after the accident. He recorded that Anthony's main ongoing complaint was of pain in the right shoulder and pain in the lower back in the upper lumbar and lower thoracic region. He reported that Anthony said that this was particularly noticeable when he tried to participate in sport or physical education.
On examination Mr Watson wrote:
Today Anthony was able to move his neck in all directions without limitation. Neurological examination of the upper limbs is normal. Tone, power, sensation and reflexes are in tact. With respect to the lumbar spine, he can flex to touch ankles, straight leg raise normally. Tone power sensation and reflexes of the lower limbs are all normal.
(Medical report of 13 August 2012)
In his concluding remarks Mr Watson said that it was 'of concern … the degree of ongoing lumbar spine pain which is still troubling Mr Ion I have suggested that he commences a swimming programme …' and later 'I don't believe that he is likely to require any surgical treatment or any pain management injections or blocks.
Anthony also saw Simon Bowman physiotherapist, whose report dated 24 October was tendered by consent. Mr Bowman thought that Anthony's posture was a factor in his ongoing complaint of low back pain.
Dr Nicholas Anastas gave evidence for the defendant. He is a consultant orthopaedic surgeon.
Dr Anastas wrote two reports dated 8 September 2009 and 19 September 2012.
He first saw Anthony on 8 September with his mother. On page 1 of his first report Dr Anastas states:
With some help from the mother, he gives the history of developing pain down his right leg on the day of the motor vehicle crash. The day after the motor vehicle crash, he developed pain behind his right shoulder and in the lower back area.
With respect to Anthony's neck Dr Anastas wrote:
On specific questioning he stated that his neck pain has improved since onset … he has neck pain on and off. The pain is felt at the back of his neck, but mainly on the right side, and behind his right shoulder.
He also reports that Anthony had difficulties as follows:
His neck and low back cause him difficulty engaging in sit‑ups, push ups, playing his guitar for more than 10 minutes or looking down for more than 5 minutes when doing homework.
On examination Dr Anastas found that Anthony was 'tender to palpation in the left trapezius muscle of the base of his neck, whereas he complains of symptoms on the right side'. With respect to the thoraco‑lumbar spine 'he is tender to palpation to the left of the thoraco‑lumber junction whereas he complains of symptoms on the right side'.

Dr Anastas summarized by saying 'he has demonstrated a full range of rotation, lateral flexion and extension'.
In his diagnosis Dr Anastas said that it was 'unlikely that he would have suffered anything more than a minor muscular sprain of his cervical spine and mid‑back region'. Dr Anastas's recommended treatment was 'a programme of isometric neck exercises and appropriate lower back exercises'. He did not think further procedures or investigations were required.
In his conclusion Dr Anastas wrote:
This young man was born on 9 March 1996. His motor vehicle accident crash on 9 March 2009 was now about 6 months ago. At his age, after this period of time, and with the nature of his injuries, one would have expected sufficient stabilisation of his condition to allow finalisation of his claim at this stage on the basis of this report. I have difficulty in explaining his continuing symptoms to a muscular sprain by the motor vehicle crash now some six months earlier on 9 March 2009.
Clearly Dr Anastas's view was that Anthony will recover fully from minor soft tissue injuries by six months.
It appears that Anthony did not become symptom‑free by that period of time. Counsel for the plaintiff, Mr Pratt, pressed the court with a view that Dr Anastas has given a 'generic' opinion which would suggest that he has not really looked at the case particularly carefully and is simply giving a generalised view about incidents of this kind suffered by persons of this age.
It seems to me that Anthony Ion does have some symptoms and aches and pains following the accident but they do not seem significantly to have affected his activities. However they have lasted for some time. Anthony seemed an honest enough witness although he was unenthusiastic, diffident and laid back in his demeanour.
In my view it is of some significance that after the accident he joined the cadets and participated in their activities for about two years. Those activities involved camps in the bush and what might be described as fairly rough and uncomfortable living on weekends from time‑to‑time. Anthony's ability to participate in that activity indicates symptoms of minor discomfort and of little inconvenience.
Counsel for the defendant put it that Anthony had suffered a modest soft tissue injury to which there was no objective evidence. He submitted that Anthony's parents, his mother in particular, were overly concerned for their child and that this is a factor. It was submitted that Anthony, if he was suffering from the complaints that he alleges, would have been unlikely to have participated in cadets let alone attempted rugby union after the accident. He observed that the general practitioner Dr Pollard had recorded complaints but that the mere recording of complaints is not proof of significant injury. Counsel submitted that headaches were migrainous and unrelated to the accident.
He submitted that there was no proof of special damages of sufficient quality to sustain a finding.
Counsel for Anthony Ion referred to his outline of submissions wherein it was put that Anthony's claim 'is restricted to a claim for damage as a non‑pecuniary loss (general damage), past travelling expenses, past medical expenses, future travelling expenses and future medical expenses'.
It was submitted that Anthony had given his evidence in a forthright manner. It was put that it was 'possible' that he does suffer as he complains. Counsel observed that it appeared 'the neck seems to have been a problem'.
Counsel submitted that Anthony 'hasn't made too much' of his symptoms. He urged the court not to deal with Anthony generically as, he suggested, Dr Anastas had done. He wound up his submissions by saying that the claim was for discomfort in the neck, mid‑back and ankle and that although Anthony was able to do 'things' it was not 'without trouble'.
In my view Anthony suffered mild, moderate pain and discomfort in his neck and back after the accident as a result of soft tissue injuries that he sustained in this relatively minor collision.
However he suffered no loss of function and retained a full range of movement in his spine. He did not require prescription medication. About three months after the collision he was well enough to engage in school horseplay and sports. As I have observed he also spent two years with the cadets.

Damages for non-pecuniary loss

As the parties are aware s 3B of the Motor Vehicle (Third Party Insurance) Act 1943 imposes a statutory limit on the power of the court to award damages for non-pecuniary loss. Section 3C(2) provides that the amount of damages to be awarded for non-pecuniary loss is to be a proportion of the maximum amount that may be awarded and determined according to the severity of the non-pecuniary loss. Pursuant to s 3C(3) the maximum amount of damages that can be awarded for non-pecuniary loss is amount A which can only be awarded in a most extreme case. Section 3C(4) provides that if the amount of non-pecuniary loss is assessed to amount B or less no damages are to be awarded for non-pecuniary loss. Amount A and amount B at the time of this determination are $364,000 (being the maximum amount payable) and $18,000 (being the threshold amount below which no award is made). Eighteen thousand dollars is just under 5% of $364,000.
The law requires me to reach a view about what might constitute a most extreme case' for an award of damages. As the authorities have identified, quadriplegia would fall into that class. The court is then required to apportion the case at hand as somewhere between nil and $364,000, but in a ratio which the court is required to fix bearing in mind the statutory maximum set for 'a most extreme case'.
In my view Anthony's minor injuries following this minor accident place his non-pecuniary loss at no more than 5% of a most extreme case.
Having regard to the helpful schedule provided by counsel, Anthony's damages therefore exceed the threshold by $200. As a matter of law the award for non‑pecuniary loss can only be $200.

Economic loss

There is also a claim for past and future travel expenses and past and future medical expenses. These claims were not quantified and the evidence supporting them is scant.
However, there must have been some travel expenses incurred in the past. How much and at what rate is a matter of guesswork. I would assume Anthony was driven about in the family car. He has not had extensive attendances or treatment. I do not really think there is likely to be much in the way of travel expenses incurred in the future. I would award a nominal sum of $150 for travel expenses.
In respect of medical expenses I have not been provided with any evidence at all as to those that are unpaid. Nor has there been any or any significant evidence as to Anthony's use of medication. An occasional reference to Panadol is all. Similarly, however, it is likely that sums were expended from time to time on over the counter medications. I award $150 for past and future medical expenses.
The amount of damages assessed including non‑economic and economic loss is $500.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ION by his next friend DESPINA ION -v- HARMER [No 2] [2013] WADC 100 (S)

CORAM: FENBURY DCJ

HEARD: 21 & 22 JANUARY 2013 & ON THE PAPERS

DELIVERED : 20 JUNE 2013

SUPPLEMENTARY
DECISION :3 DECEMBER 2013