Irene Bates v Nada Lucia No. SCGRG 93/732 Judgment No. 4136 Number of Pages 7 Damages

[1993] SASC 4136

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Damages - general principles - Appeal and cross appeal against assessment of damages - respondent suffered back injury as a result of motor vehicle accident - suffered from back pain previously - underwent various treatments with little effect - medical evidence uncertain as to when disc bulge actually occurred - magistrate awarded $33,795.90 - magistrate applied wrong multiplier for purposes of Wrongs Acts35a - magistrate assessed award of damages on wrong basis - award for future economic loss increased. Wrongs Acts35a. Wilson v Peisley (1975) 7 ALR 571, applied

HRNG ADELAIDE, 18 August 1993 #DATE 31:8:1993
Counsel for appellant:     Mr D Stratford
Solicitors for appellant:    Stratford and Co
Counsel for respondent:     Mr F Di Fazio
Solicitors for respondent: Lindleys

ORDER
Appeal dismissed.

JUDGE1 OLSSON J These are an appeal and a cross appeal against a judgment entered on 16 April 1993 by a stipendiary magistrate sitting in the Civil Division of the Magistrates Court. 2. By a summons issued on 21 January 1991 the respondent, who was plaintiff at first instance, sought damages from the appellant for personal injury said to have been sustained by her as the consequence of a motor vehicle accident which occurred on 17 February 1988. It was asserted that, on the day in question, the appellant reversed a vehicle driven by her into a stationary vehicle of which the respondent was the driver. By her original defence the appellant denied that the respondent's vehicle was stationary at the time, denied any negligence on her part and asserted that, in any event, the respondent had been guilty of contributory negligence. In a later, amended defence the appellant substantially focussed upon what was asserted to be the respondent's pre-existing condition and the likelihood of it having produced incapacitating symptoms in any event. 3. When the matter eventually came on for trial the appellant admitted liability. The action went forward before the learned magistrate solely for assessment of damages. The respondent personally gave evidence, as did a series of medical practitioners. 4. On 16 April 1993 the learned magistrate published written reasons setting out the findings which he made. 5. He found that, at the time of the impact between the vehicles, the respondent was 8 months pregnant. Several hours after impact she experienced lower back pain which, she deposed, gradually worsened. It was the view of the learned magistrate that it "will probably continue to worsen over the ensuing years". 6. At trial it was the case of the appellant that, although the respondent did sustain some temporary lower back injury, her third pregnancy, subsequent to the impact, and the vicissitudes of child rearing have played a more important causal role in relation to her present condition - and that the organic basis for the respondent's problems pre-existed the impact. It was argued that the accident had merely served to aggravate an already degenerate L5/S1 vertebral disc. As the learned magistrate recorded, there is no doubt that the respondent currently exhibits a central protrusion of the relevant disc, which bulges a little more to the right of the mid line than the left. 7. In his reasons the learned magistrate dealt definitively with the respondent's history. He expressly found that:-
     - she was 32 years of age and had borne three children of
    her marriage. Their dates of birth were 16 November 1984, 7 March
    1988 and 20 July 1990 respectively;
     - in the last month of the respondent's first pregnancy (ie
    October 1984) she experienced intermittent pain in the right side
    of her lower back. This was relieved by manipulative
    physiotherapy. She was thereafter pain free up to the impact, the
    subject of these proceedings;
     - the impact was a low speed impact, against which she braced
    herself. It caused $850 damage to her vehicle;
     - about 5 hours after the impact she experienced an onset of
    low, mid line, back pain. She consulted a medical practitioner
    the next day but, due to her advanced pregnancy, no treatment was
    attempted.
     - after the birth of the second child her back pain worsened.
    It was not relieved by medication or physiotherapy. Under medical
    advice she undertook a twelve month muscle strengthening course.
    The pain did not really abate, although it seemed a little less
    acute towards the end of her third pregnancy.
     - following the birth of the third child the back pain
    increased. It was exacerbated by activities related to bringing
    up the children. She developed pain in both hips and her husband
    had to do the housework. In late 1990 and early 1991 she
    underwent acupuncture and used a TENS device. However, neither of
    these treatments assisted.
     - on 4 July 1991 an epidural injection by Mr Fry gave some
    relief, but only temporarily. He had a CT scan performed and this
    revealed the disc bulge. The possibility of a fusion was
    discussed, but the respondent, not surprisingly, elected for more
    conservative measures.
     - during the later part of 1991 various more conservative
    treatments were, in fact, attempted. The learned magistrate
    summarised them as under:-
        "On 23rd September, 1991, the plaintiff saw Dr. Mitchell
    after unsuccessful chiropractic treatment. Dr. Mitchell put the
    plaintiff on a programme of prolotherapy at the Vales Private
    Hospital comprising a series of 8 day attendances for glucose
    therapy injections from 26 September, 1991, to 2nd April, 1992.
    (Prolotherapy consists of injecting an irritating substance into
    the back to excite a local inflammatory response which, hopefully,
    will increase the generation of fibroblasts and collagen to
    produce a more elastic, but stronger set of ligaments that
    surround the relevant vertebra in the spinal column.
     At the same time, manipulation is executed by a physiotherapist
    to attempt (amongst other things) to increase mobility. This work
    was undertaken by Dr. Mitchell in conjunction with Mr. Kittell
    the physiotherapist). This course improved the plaintiff's
    condition (though it did not wholly eradicate her pain).
    According to the plaintiff its effects were more lasting than
    those of other therapies she had undertaken."
     - in mid 1991 the respondent resigned from her then employment
    and did not resume full time employment for about twelve months
    thereafter. The learned magistrate described the situation in
    these terms:-
        "In June, 1991, the plaintiff resigned her
    secretarial/clerical job with the Conservation Council and only
    resumed full-time employment a year later - in July 1992 - when
    she commenced work at the Registry of the Flinders University.
    Her reasons for resigning in the first place were mixed. It was
    because of her child-rearing duties. She found it exhausting and
    taxing to juggle three children in the mornings (child car
    centres, school etc) and then to drive to work. When she got to
    work she felt sore; her back was in severe pain, which lasted all
    day. She took painkillers (Panadol) to allay it, as well as the
    more potent medication Panadeine Forte, a prescription drug. It
    was also because she was primarily concerned to obtain work that
    was closer to her home. It was after she resigned her job that
    she underwent prolotherapy."
     He noted that she copes with her present work by resort to
    painkilling tablets 2-3 times per day and occasional
    physiotherapy.
     - the respondent now only performs limited household activity
    and her husband does a good deal of the housework. In reviewing
    the medical evidence the learned magistrate pointed out that none
    of the doctors could say when the disc bulge would first have
    occurred. It was originally thought that the pain only resulted
    from musculo-ligamentous strain. However, he considered, for
    reasons expressed by him, that the medical evidence indicated the
    presence of some pre-existing pathology (probably a disc bulge or
    lesion) as at the time of the 1988 impact. He therefore concluded
    that the subject accident brought about an aggravation of such a
    pre-existing condition. 8. He then proceeded to attempt to relate post accident symptoms to such a situation. He concluded that the respondent possessed a strong and determined personality and was stoic and resilient in her approach to her symptoms. 9. He expressly commented:-
    "I, therefore, can not accede to the defence contention
    that the plaintiff reconstructed her testimony. It may be that
    the accident has assumed a somewhat exaggerated focus in the
    plaintiff's mind but I do not believe that she consciously
    exaggerated her symptoms or plight to either the medical
    specialists or this Court. But I am compelled to conclude that
    the plaintiff's symptoms are not wholly attributable to the
    subject motor accident. Rather, I conclude that they are the
    accumulated and on-going result of a number of life-factors of
    which the motor accident was one. ... It may be that the
    accident has become an unconscious pretext for her present
    condition, but more than that I can not say or speculate. In my
    view this last finding is open to me because, although the medical
    experts conceded that the supervening (or concurrent) life factors
    cannot be ignored as being causally related to the plaintiff's
    symptoms, the accident itself was never categorically disregarded
    or discounted, as a continuing cause of those symptoms, by any of
    them." 10. Against that background the learned magistrate made the following express findings:-
     "(i) that the subject accident did constitute an aggravation
     of a pre-existing disc lesion whose precise aetiology is unknown;
     (ii) that the plaintiff would have suffered similar, though not
    as extreme, pain and discomfort at some time in her life even if
    the accident had not occurred;
     (iii) that the accident accelerated the onset, and exacerbated
    the degree, of lower back pain experienced by the plaintiff;
     (iv) that I am unable to make any quantification of the degree
    of contribution of the accident to the pain and discomfort
    experienced by the plaintiff in consequence of the accident;
     (v) that the plaintiff has suffered some, albeit indeterminable,
    permanent residual disability, pain and discomfort in consequence
    of the accident and other life factors operating conjunctively on
    her pre-existing disc lesion.
     (vi) that the accident remains as one, ongoing or persistent
    cause of the plaintiff's symptoms and, in all probability, will
    continue to do so, although other life factors have contributed
    and will continue to contribute significantly to the recurrence or
    perpetuation of the same, or substantially similar symptoms." 11. Having made those findings the learned magistrate selected the scale figure 8 for the purposes of section 35a of the Wrongs Act and assessed $8,000 for non economic loss, using a multiplier of $1,000. 12. He allowed $7,000 for past economic loss and $10,000 for future economic loss. Future medical expenses were allowed at $500. 13. Despite submissions on the part of the appellant that the costs of the prolotherapy should not be allowed, because there had been no formal medical reference for it and it was outside mainstream orthopaedic practice, the learned magistrate allowed it in the sum of $7,295.90. 14. The assessment totalled $33,795.90, to which interest at 10% was added from 21 January 1991 to date of judgment, in respect of those elements of damages as are permitted by section 35a of the Wrongs Act. Costs were awarded up to 5 July 1992 on the District Court scale and thereafter on scale 2 of the Third Schedule to the Magistrate Court Rules. 15. The appellant complains that the assessments for past and future economic loss and interest were manifestly excessive and against the weight of the evidence. By her cross appeal the respondent says that they were manifestly inadequate and that the learned magistrate employed an incorrect multiplier for the purposes of section 35a. It is common ground that the appropriate multiplier was $1,070; and that the correct assessment of section 35a damages ought therefore to have been $8,560. 16. It is, I think, unnecessary fully to reiterate the arguments of counsel advanced on this appeal. They are duly enshrined in the transcript. 17. In my opinion Mr di Fazio, of counsel for the respondent, is correct when he argues that a perusal of the learned magistrate's reasons for decision strongly suggests that he adopted a process of reasoning which was not supported by the evidence and was inconsistent with what fell from the High Court in Wilson v Peisley (1975) 7 ALR 571. 18. There can be no doubt that, given the earlier period of transient pain which, after treatment, entirely resolved following the first pregnancy late in 1986, the respondent was asymptomatic prior to the subject impact. The impact triggered off symptoms within a period of a few hours, which steadily worsened. Those symptoms have persisted, in greater or lesser degree, ever since. 19. Although the medical witnesses also accepted that the respondent had a degenerate back which, sooner or later, would have been bound to give rise to symptoms of lower back pain, none of them expressed an opinion as to when that stage would necessarily have been reached. At best from the appellant's viewpoint, Mr Fry, an orthopaedic surgeon, commented:-
    "... I thought the motor car accident was just an episode
    in a degenerate back history that had been made evident in 1980 or
    whenever it was when she was pregnant and the motor accident was
    not the sole cause of what was seen later on in xrays. What you
    suggest, that in fact there was a history beforehand, more of a
    history of episodical problems of the back which in the
    circumstances of known pathology at the bottom of the back does
    not surprise me." 20. However, Mr Fry was there speaking from the perspective of a medical practitioner, rather than applying his mind to the legal concepts involved. 21. This, then, was a classic situation falling within the dictum of Barwick CJ in Wilson v Piesley when the learned Chief Justice said:-
    "... It is clear in my mind from my perusal of the trial
     judge's carefully expressed reasons for judgment - described in
    the Supreme Court as 'this careful and complete judgment' - that
    whilst he realized that the respondent's pre-existing condition
    afforded no answer in point of liability to the appellant, yet
    that condition and its propensity, being something not caused by
    the appellant and pregnant of psychological damage to her in the
    future, in the ordinary course of her life, must be placed in the
    scales when deciding what sum should be awarded for what the
    appellant had cause.d The trauma of the accident for which the
    appellant was responsible no doubt made a present reality of that
    which was ever a real possibility. Thus, whilst the appellant
    must pay for bringing out that condition, what he must pay must,
    in my opinion, justly reflect the fact that that condition was not
    merely latent in the respondent but that events, not of an unusual
    or unlikely kind, could and might in the ordinary course of life
    have evoked that condition had not the appellant's negligence
    intervened. The judge included this possibility in the
    vicissitudes of life which he was bound to bring to account in
    connection with the assessment of economic loss. In my opinion,
    he was not in error in so doing. No question arises in this case
as in such cases as Watts v Rake (1960) 108 CLR 158; (1961) ALR
333, and Purkess v Crittenden (1965) 114 CLR 164; (1966) ALR 98,
    as to onus of proof. The existence of pre-existing condition and
    of its propensity for harm to the respondent was fully made out." 22. What the learned magistrate was bound to do, in light of his own primary findings of fact, was to assess the loss of past and future economic capacity resulting to the respondent by virtue of the initial and ongoing symptoms generated by the negligent act of the appellant and then make a contingency deduction - no doubt of substantial proportions - of the nature adverted to by Barwick CJ. In so doing the broad axe had to be wielded. 23. But what it was not appropriate to do on the evidence - because there was no sufficient evidence to justify such a course - was to assess on the basis that, at any given point in time, there was a complex of causative factors operating (and which, by inference, would have operated in any event at that time) to give rise to the symptoms experienced. 24. The fallacy of so doing readily becomes apparent in relation to the reason why the appellant resigned from her position with her employer at the time of the impact. In essence she deposed that, by mid 1991, the pain experienced by her had achieved a persistence and intensity that she was unable to cope with what was then, for her, the daily round. She lived at Hallett Cove and drove her vehicle to her then part-time employment in Adelaide three days per week. As she described the situation:-
    "Q. Can you tell His Honour why you resigned.
    A. With the children, I had to drop off in the morning, I had
    one at school, I had 2 at child care, by the time I left home and
    had piled the kids into the car and bending down, putting the baby
    in the car seat, I had to bend to get the baby in the car seat, I
    had to drive down to the school to drop my eldest son off, I had
    to bend into the car to get the baby out of the car so I could
    take my son to school, put the baby back in his car seat then I
    had to drive over to the child care centre then back in the car
    again, take him out of his seat, to take him inside, I stayed in
    the car for 45 minutes to drive to work, and by the time I got to
    work I felt as though I had done a day's work already.
    Q. What was the state of your back when you got to work after
    attending to those domestic chores.
    A. I was in severe pain.
    Q. Did that pain go away or remain with you during the day.
    A. It remained during the day.
    Q. How did you endure this, in what way.
    A. With pain killers." 25. As Mr di Fazio fairly stressed, what she was there describing was a situation in which the trauma generated symptoms, having become manifest, were being exacerbated by her daily life activities in a manner which, in the end, made it imperative for her to obtain different employment closer to home to avoid the stresses of travelling long distances to work, including dealing with the children en route. 26. There was, as I understand the situation, simply no adequate basis of evidence for saying that, had the accident not supervened, normal processes of degeneration would, inevitably, also have generated symptoms at that time and as a result of the activities above described. Prior to the accident she certainly coped with her day-to-day life activities, albeit that she did not then have three children to care for, and remained asymptomatic. There was simply no logical basis for concluding that, up to trial, there was a complex of present, independent, but interacting, causative factors giving rise to the respondent's symptoms, as the learned magistrate appears to have done. 27. Nor does there seem to be any suasive basis of evidence for concluding that, even at the present time, the respondent's symptoms are, in the relevant legal causation sense, "not wholly attributable to the subject motor vehicle" and "that they are the accumulated and ongoing result of a number of life factors of which the motor accident was one". No attempt has been made to point to any medical evidence to the effect that, had the accident not occurred, the symptoms currently being experienced would necessarily have, even by now, manifested themselves. At best it can be said that there was always the contingency that that might have happened. 28. As to past economic loss I am satisfied that, despite any criticisms of his conceptual approach, the assessment made by the learned magistrate was, on a broad axe basis, within acceptable bounds. I cannot accept Mr Stratford's analysis of the effect of the evidence and the inferences to be drawn from it, for the reasons above expressed. The respondent was accepted as a credit worthy witness. Her evidence was accepted at face value and it seems to me that the construction proper to be placed on it was that which I have outlined. 29. I consider the sum of $7,000 relatively modest on that basis, but not manifestly inadequate after contingencies and the respondent's own expressed plans are taken into account. The necessary broad axe approach can make no pretence of precision. 30. The assessment of $10,000 for future loss stands on a different footing. 31. Whilst it is quite true that any allowance for adverse contingencies, due to the respondent's degenerate back, must be substantial the plain facts are that:-

     (1) the respondent is still a young woman;
     (2) she has an enhanced vulnerability to future disability;
     (3) her medical history places her at a serious disadvantage in
    the labour market;
     (4) as the learned magistrate pointed out, she has real risks of
    lost opportunities for employment in the future, particularly if
    she loses or cannot continue in her present position. All of the
    stoicism in the would would not overcome that problem. As against
    that it remains a matter of conjecture as to when, and in what
    circumstances, symptoms from the respondent's degenerate back
    would, in the normal course, have intruded in significant degree
    in any event, so as to inhibit economic capacity. 32. Despite the contra arguments of Mr Stratford, of counsel for the appellant, I am compelled to agree with Mr di Fazio that $10,000 is a manifestly inadequate allowance for future loss of economic capacity, even on a broad axe basis. In my view a more appropriate figure would be $20,000. 33. Accordingly, the appeal must be dismissed. The cross appeal will be allowed for the purpose of increasing the assessment of section 35a damages to $8,560 and the assessment for future economic loss to $20,000. I will hear counsel as to any consequential orders and costs.