Jackson v Jackson
[2005] QDC 346
•2 November 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Jackson v Jackson & Ors [2005] QDC 346
PARTIES:
SHIRLEY MARGARET JACKSON
Plaintiff
PETER DAVID JACKSON
First Defendant
QBE INSURANCE (AUSTRALIA) LIMITED
(ACN 075 695 966)
Second Defendant
MICHAEL SBRIZZI
Third Defendant
SUNCORP METWAY INSURANCE LIMITED
Fourth Defendant
FILE NO/S:
D4610/04
DIVISION:
District Court
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
2 November 2005
DELIVERED AT:
Brisbane
HEARING DATE:
1st September 2005 to 2nd September 2005
JUDGE:
Dick DCJ
ORDER:
1. That the Defendants pay to the Plaintiff the sum of $18,369.39
2. That the Plaintiff pay the Defendant’s costs to be assessed on the appropriate standard District Court scale
CATCHWORDS:
COUNSEL:
A Simpson for the Plaintiff
R Green for the First Defendant
SOLICITORS:
Baker Johnson for the Plaintiff
Eardley Motteram for the First Defendant
The Plaintiff’s claim is for damages for personal injuries she claims were caused by the negligence of the First and Third Defendants.
On Friday 20 July 2001, the Plaintiff was a passenger in a car driven by her husband, the First Defendant. The car travelled into an area of fog and smoke and slowed to approximately 40 kilometres per hour. The car then struck the vehicle in front. Immediately after, there was a rear end impact by another vehicle which initiated a second forward impact.
As a result of the accident the Plaintiff suffered immediate pain. She felt pain in the chest and right thumb. She felt pain in her knees which had struck the dashboard. She had a lot of bruising around her stomach and chest and a bruise on her arm (T9).
The day after the accident the Plaintiff noticed pain in the chest, her knees hurt, her right thumb hurt and she had developed the bruising.
The pain in her chest lasted for over two months. The knees had probably settled by the time she returned to work a week later (T10).
On her return to work, she noticed pain across her lower back which got worse during the day and was most obvious when she was sitting at the computer (T12).
She gave evidence that about three weeks after the accident she noticed pain in the groin on the left hand side. The Plaintiff cannot remember any particular activity connected with the onset of the pain. The pain increased as the day went on and was severe.
The Plaintiff saw a number of doctors regarding the groin pain.
Eventually she was referred to Dr David Morgan. She saw him on 1 November 2001.
Radiographic examinations were performed on 20 July 2001 and 8 October 2001. Both films demonstrated severe osteoarthritis in the left hip joint. Similar but less severe changes were noted in the right hip.
Dr Morgan recommended that the Plaintiff persist with non-operative therapeutic measures including a reduction in weight and changing her medication.
She next consulted Dr Morgan on 25 March 2002 and it was decided that she would undergo a left-sided hip replacement. This occurred on 9 April 2002.
When did the groin pain first appear?
The Plaintiff gave evidence that she first noticed the groin pain about three weeks after the accident.
Her husband said that she returned to work after a week and “I don’t remember the exact date but it wasn’t until probably about two weeks that she started complaining about the pain in her groin” (T59). He said she saw a doctor “a little but after when it was getting worse” (T64).
Her son, Ben Jackson, thought she started getting pain in her groin/hip area “maybe a week or two” after the accident (T9).
Her daughter, Sally, placed the outset “straight after” the accident.
On the day of the accident the Plaintiff was taken to Caboolture Hospital. The primary Nurse Assessment notes:
“Front seat passenger wearing seatbelt – bruising over L breast and both knees. R thumb pain ….” and “Knees hit dashboard. Hit Right Thumb-tender. Painful chest and painful supra pelvic region”; and later “Bruising evident in seat belt distribution ….”
Other notes record:
“Pt removed from vehicle. Pt stated sore knees and chest sore on inhalation. Pt not KOD Pt complains of upper abdo Pain ….Pain in sternum …chest wall… all limbs normal movements – no pain …neck pain … pain on inspiration only.”
Dr Holloway
On x-ray some lower thoracic degeneration was noted. Osteoarthritis was identified in both hip joints and the left knee was normal.
On 25 August 2001, the Plaintiff saw Dr Holloway who notes “Recent MVA. Severe bruising, whiplash etc”.
She saw Dr Holloway on the following dates:
§ 8 September 2001
§ 22 September 2001
§ 6 October 2001
§ 20 October 2001
The notes for these visits do not record a complaint of pain.
On 9 February 2002, Dr Holloway notes “still has severe pain, hips and knees”. Dr Holloway has reported that he did not treat her for the MVA and he did not examine her as she was under another doctor’s care for this.
The records show that on 19 May 2001, which was before the accident, the Plaintiff was prescribed Panadeine Forte tablets. Dr Holloway also notes “she has a history of osteoarthritis before her accident”. There is an entry on 2 June 2001 “Diagnosis Osteoarthritis”. She was administered a Depo-medrol injection. On 16 June 2001 note sore foot still. Try bone and joint cart.
City Medical Practice
The Plaintiff attended the City 6 Day Medical Centre Practice on a number of occasions.
She first presented on 3 October 2001 with symptoms of low back pain for approximately one month (my emphasis), radiating into the front of her thighs and her feet. There was no pain at the back of her thighs and she was experiencing constant throbbing pain unrelieved by pain killers.
On examination she was tender over her lower back and both sacro-iliac joints. Blood tests and x-rays were ordered. These results were basically normal.
She was seen again a few days later and was still feeling pain across her lower back and in her left groin and aching down the front of her legs.
Dr Harvey
The Plaintiff saw Dr Harvey on 21 July 2001 (the day after the accident). He noted the bruise on the right arm, bruises from the seat belt, painful right thumb and some restriction of neck movement.
He saw her again on 24 July 2001. She complained of nausea and her medication was changed. On 8 August 2001, he notes getting well. On 12 October 2001 she complained of pain in both groins going down both legs. He ordered x-rays and referred her to Dr Morgan.
CTP Form
On 26 October 2001 the Plaintiff filled out a CTP Additional Information Form.
In it she said that the injuries sustained in the accident were bruising from seat belt pain in sternum requiring painkillers, strained right thumb and left knee, right foot. She complained that she still had some difficulties with right thumb, pain in sternum when doing some activities eg. lifting files and filing, whiplash. The document included a medical certificate from Dr Harvey who described the injuries as soft tissue injuries, whiplash injury to the neck.
While it is a little unclear, it appears that the first complaint relating to the groin made to a medical practitioner was on or around 3 October 2001. At that time she complained of pain radiating down her legs and in her left groin. It is difficult to tell from the report whether she said she had had that pain for a month or that she had suffered lower back pain for a month.
Having observed the Plaintiff, I am satisfied that she is a truthful witness. She has some difficulty remembering details in the period immediately after the accident. This is understandable. In the end result, I accept her evidence that the groin pain came on three weeks to a month after the accident.
Was there a link between the accident and the hip replacement?
It is submitted on behalf of the Plaintiff that the accident triggered symptoms in the previously asymptomatic hips and significantly hastened the need for a hip replacement. The Plaintiff relies on the coincidence of time in relation to the accident and the outset of pain and on the opinion of Dr Pentis. Dr Pentis, in his report dated 23 October 2001, opined that the injuries suffered by the Plaintiff in the accident aggravated degenerative changes in the spine, hips and knees. He said that if the Plaintiff was mobilising oddly after the accident it may have caused more pain in the arthritic hip. He said it was also possible that if she had hit her femur on the dashboard it might transfer pain to the soft tissues in the hip region. He said that if the injury was severe, the outset of pain would be immediate but that the pain might be masked and if the pain was consequent on walking oddly it may develop over a month or so.
Although Dr Pentis said in his report that the accident would have increased the need for such a procedure by a period of at least five years, in his evidence he conceded that the figure of five years was really a guess (T8).
The defendant relies on the evidence of Dr Boys and Dr Morgan.
Dr Boys examined the Plaintiff on 19 July 2002. The Plaintiff told Dr Boys that prior to the accident she was not specifically aware of any restriction of movement of the hips. She could not recall any groin complaint but can recall “aching legs” with discomfort extending down to the knees and shins on occasions. Dr Boys opined that the lack of any immediate complaint referable to the hip over the period of some three weeks following the accident would render tenuous any causal relationship between the onset of symptoms and the motor vehicle accident.
He rejected the proposition that the groin pain may have been masked by other pain and was of the opinion that if the blow to the knee had transmitted force to injure the hip then there would be symptoms immediately.
Dr Morgan performed the surgery on the Plaintiff. Interestingly, the Plaintiff now works for Dr Morgan as a receptionist.
Dr Morgan first saw the Plaintiff on 1 November 2001. The Plaintiff noted symptoms in both shins in May 2001 and discomfort with excessive standing and walking (on) concrete. The shin problems in May 2001 probably relates to the entry in Dr Harvey’s notes. The Plaintiff did not mention this in her evidence. I think she had forgotten it.
Dr Morgan was of the view that the accident had probably not contributed to the Plaintiff’s hip condition when he saw her. He was also of the view that if the hip had been disordered or deranged or aggravated significantly in a mechanical or pathological way in the accident, he would have expected symptoms immediately or within a day or two. He rejected the proposition that if the Plaintiff was mobilising oddly after the accident, it may have made the hips symptomatic. In relation to the proposition that a direct blow to the knees may have been transmitted through the thigh bone to the hip, he said the difficulty was the delay of onset of symptoms. Dr Morgan was firmly of the view that even if the hip replacement was hastened, it was hastened only by a matter of months.
On this issue I accept the preponderance of the medical evidence that the accident did not cause or hasten the hip replacement.
I do not accept that the Plaintiff had the groin pain from the time of the accident but that it was masked. The Plaintiff consistently reported a litany of symptoms to the hospital and various doctors. There is no reason to expect that she overlooked one of many areas of pain.
I do not accept that she was mobilising oddly following the accident. She does not give evidence of difficulty in mobilising until the hip symptoms appeared.
I accept the evidence of Dr Morgan and Dr Boys that a blow to the knees causing an injury to the hip would have caused symptoms almost immediately.
I am of the opinion that Dr Morgan is in the best position to assess when the hip replacement would have been necessary.
Lower Back Pain
The first report of lower back pain to a doctor was to the City 6 Day Medical Practice on 3 October 2001 when tenderness was noted on examination.
In addition, there is evidence from the Plaintiff that she noticed the pain in her back on her return to work and evidence from a work mate that the Plaintiff complained of lower back pain after she returned to work.
Dr Pentis examined the Plaintiff and noted tenderness in the lumbar musculature or ranging and palpating the spine. Dr Pentis was of the view that the Plaintiff’s injuries also aggravated degenerative problems in the spine.
Dr Boys did not specifically examine the lumbar spine and Dr Morgan did not address this issue.
At the time of the examination Dr Pentis assessed the incapacity affecting the spine in the vicinity of a 10% loss of the efficient function of her spine. He conceded in cross-examination that he would expect some improvement from the time of the examination (T83).
The Plaintiff saw Lesley Stephenson, an occupational therapist, on 12 October 2002. At that time the Plaintiff complained that she experienced stiffness in her lower back after sitting or standing for an extended period of time and pain after walking long distances.
The Plaintiff gave evidence that since she began working for Dr Morgan (about five weeks before the trial), she had noticed lower back pain on bending over to get files from low drawers.
Right Thumb
The Plaintiff’s right thumb was injured in the accident.
When she saw Dr Pentis on 16 October 2001 she still had problems with the thumb which he assessed as an aggravation of degenerative changes and for which he assessed a 3% loss of function of the right upper limb.
When the Plaintiff saw Ms Stephenson in October 2002, the right thumb did not appear to be causing significant problems.
By the time of the trial she had resumed her craft work and the injury to the thumb had resolved to a large extent.
Knees and Chest
The Plaintiff suffered soft tissue injuries to the knees and chest and bruising to the abdomen and arm. These injuries were initially very painful but settled over about two months. As said earlier, she returned to work after approximately one week.
Griffiths v Kerkemeyer
The evidence is complicated in relation to the assistance by way of gratuitous care and services required as a result of the accident. I accept the submission that, as a result of my findings, damages under this head cannot be awarded for matters associated with the hip symptoms and that this would limit this claim to about two months post collision.
The evidence of what assistance was provided is inconsistent. I am left with the abiding impression that the Plaintiff was a very competent housekeeper who asked little of her family and was given little.
I accept the Defendant’s submission that it is difficult to perform a precise mathematical assessment and I award $1,200.00 for past care together with interest of $100.00.
Future Gratuitous Care and Services
An allowance will be made under this head for future care and services which may be required in respect of the lower back pain. A global award of $500.00 is appropriate.
Out of Pocket (Past)
An award under this head must exclude all claims related to the hip replacement.
A sum of $239.05 covers the HIC charge in relation to general practitioner attendances prior to October 2001.
Future Needs
The award under this head is limited to possible flare ups of pain in the lower back. I award $500.00.
Past Economic Loss
In relation to her employment with Baker Johnson, I am satisfied it ceased because she found it untenable as her hip symptoms increased and not because of the injuries which occurred in the accident.
I accept that the time off work required for the hip surgery and recuperation would have been necessary whenever the surgery was performed regardless of the accident.
Future Economic Loss
The evidence of Ms Stephenson is that there has been only a minor loss of functional capacity. Dr Boys was of the opinion that there was no impairment precluding employment.
The Plaintiff is presently working for Dr Morgan and evinced a clear desire and intention to continue in that employment. The Plaintiff is presently aged 58. The only ongoing problem is the back pain which I think would have only the most marginal effect, if any, on her prospects of gaining future employment.
I make the following awards:
Pain and suffering and loss of amenities $15,000.00
Interest on $10,000.00 for 4.08 years at 2% $816.00
Out of Pocket (Past) $239.05
Interest on Out of Pocket (Past) at 6% $14.34
Past Griffiths v Kerkemeyer $1,200.00
Interest on Past Griffiths v Kerkemeyer $100.00
Future Griffiths v Kerkemeyer $500.00
Future Medical Expenses $500.00
I order that the Defendants pay to the Plaintiff the sum of $18,369.39.
I further order that the Plaintiff pay the Defendant’s costs to be assessed on the appropriate standard District Court scale.
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