Jensen v Worth and Suncorp General Insurance Limited
[1999] QDC 185
•20 July 1999
IN THE DISTRICT COURT
HELD AT MAROOCHYDORE
QUEENSLAND
[Jensen v. Worth and Suncorp General Insurance Limited]
[Before Samios DCJ]
Plaint No 263 of 1998
BETWEEN:
JENETTE DAWN JENSEN
Plaintiff
AND
ROGER WORTH
First Defendant
AND
SUNCORP GENERAL INSURANCE LIMITED
(ACN 075 695 966)
Second DefendantJUDGMENT
Judgment delivered: 20 July 1999
Catchwords: PERSONAL INJURIES - quantum - neck injury - back injury - headaches
Counsel for the plaintiff: Mr. Grant-Taylor
Counsel for the defendants: Mr. Miles
Solicitors for the plaintiff: Butler McDermott & Egan
Solicitors for the defendants: Bradley & Co
Hearing Date(s): 6 & 7 July 1999
IN THE DISTRICT COURT
HELD AT MAROOCHYDORE
QUEENSLAND
[Before Samios DCJ]
[Jensen v. Worth and Suncorp General Insurance Limited]
Plaint No 263 of 1998
BETWEEN:
JENETTE DAWN JENSEN
Plaintiff
AND
ROGER WORTH
First Defendant
AND
SUNCORP GENERAL INSURANCE LIMITED
(ACN 075 695 966)
Second DefendantREASONS FOR JUDGMENT -SAMIOS D.C.J.
Delivered the 20th day of July1999
The plaintiff was born on 2 November 1968.
On 30 July 1996 the plaintiff was the driver of a Holden that came into a collision with a Toyota being driven by the first defendant. Immediately before the collision the first defendant was executing a u-turn in front of the Holden being driven by the plaintiff. The Holden driven by the plaintiff collided with the side of the Toyota being driven by the first defendant. The Holden being driven by the plaintiff was travelling at approximately 60 kilometres per hour when the collision occurred.
Liability is not in issue. Except that the plaintiff and the defendants have agreed the quantum of the plaintiff’s special damages and the interest thereon, quantum of the plaintiff’s damages remains in issue.
The plaintiff said in evidence that as a result of the impact, her head came forward and went back. Further, her leg hit something in the car on her left hand side, and her teeth went partly through her tongue. The plaintiff was able to get her daughter and herself out of the Holden. As the plaintiff waited for the police to come, she had intense pain around her neck and down her back. Further, her tongue was bleeding and her leg was quite sore to walk on.
Following the collision, the plaintiff was taken to the Nambour General Hospital. At the hospital, the plaintiff complained of feeling faint and had neck and upper back pain. She also complained of pain in her left shin, and of having bitten her tongue. When the plaintiff was examined at the hospital, she was found to be quite anxious. Further, the examination noted she had a contusion of her left upper shin and a minor abrasion to her tongue. She was also tender generally in her neck and upper back. X-rays of her neck and upper back showed no abnormality. The hospital made a diagnosis of soft tissue injury to the plaintiff’s neck. The plaintiff was discharged with advice and analgesia.
Although the plaintiff was not admitted to the hospital, she said in evidence she left the hospital in a neck brace. Further, that night at home she was in pain. She said she ached everywhere. She described the pain as immense pain around the neck, the back area and the leg. Further, her symptoms did not improve. On the contrary they got worse. The plaintiff said in evidence she had trouble walking on her own unaided and was in constant pain and started to get headaches which she described as “severe migraine headaches”. She therefore went to see her local general practitioner, Dr. Parker.
An affidavit of Dr. Parker in evidence before me confirms the plaintiff’s evidence that the plaintiff consulted Dr. Parker. The evidence of Dr. Parker is that this consultation with respect to the plaintiff’s injuries arising out of the collision occurred on 1 August 1996. Dr. Parker’s evidence is that on that occasion the plaintiff gave a description of what happened to her in the collision which is consistent with what the plaintiff told the staff of the Nambour General Hospital and with what she said in evidence before me. Dr. Parker also states that on 8 August 1996 when the plaintiff next attended, she complained of generalized pain which was most severe in her lower back, and which had arisen since the date of the collision. Dr. Parker prescribed medications and referred the plaintiff to Jennifer Frangos for physiotherapy. Dr. Parker states that on 15 August 1996 the plaintiff attended complaining of headaches and vomiting in relation to same and was again prescribed medications. The plaintiff attended on 10 September 1996 complaining of bad migraine headaches occurring over the last three days, and which the plaintiff had not experienced prior to the collision some six weeks prior. The plaintiff further attended on Dr. Parker in relation to her migraine headaches on 22 October 1996 and 30 January 1997. Dr. Parker also refers to the death of the plaintiff’s husband in tragic circumstances on 8 February 1998. However, Dr. Parker confirms after a review of her file records and her notes that the plaintiff was suffering from migraine headaches prior to the death of her husband.
Ms. Frangos, the physiotherapist, has provided two reports which are in evidence before me. Her report dated 5 December 1996 confirms that she has treated the plaintiff for her cervical and thoracic whiplash since 16 August 1996 when the plaintiff first presented, reporting the symptoms had arisen as a result of the collision. In her report, Ms. Frangos states that the plaintiff’s primary symptoms at this initial consultation was headaches. Further, the plaintiff described these headaches as severe, throbbing migraine and not really relieved by medication, rest or hot packs. The plaintiff also complained of constant right sided thoracic pain. In this report, Ms. Frangos states that the plaintiff’s symptoms had been slow to improve, worst of all her migraine type headaches. The frequency at that time as noted by Ms. Frangos in her report, was that the plaintiff was experiencing about two headaches per week. In Ms. Frangos’ second report dated 16 September 1997, she states that the plaintiff’s symptoms were slow to improve, with extensive consultations and continuing home exercise programs. However, a point was reached where the plaintiff was pain free, headache free and fully functional according to Ms. Frangos. However, Ms. Frangos states:
“On palpitation and movement examination she still had joint changes and decreased range of movement at all affected levels. ... Since her initial discharge from treatment on 3 July 1997, Jenette has consulted me three times for recurrence of ‘L sided migraine’ type headaches”.
The plaintiff said in evidence that she was not a headache sufferer before this accident and had not suffered migraine headaches before this accident. However, the headaches that she has complained of have persisted. When she gave evidence the plaintiff stated that when her headaches are at their worst, she sleeps on a mattress in the lounge room and locks both doors so that her children can have the free run of the house. Although she is affected by light and noise, the house is quiet because the children know that when the plaintiff has one of these migraines “it’s time out for Mummy, and they more or less - they’re used to the idea of being quiet”.
The plaintiff stated in her evidence that she does not have any problems with the injury to her tongue or her shin. However, her neck and back still give her problems. She has trouble with twisting or turning and cannot lift heavy loads in the washing machine and she has to be very cautious about what she lifts or how she turns. Further, she has continued to have headaches. However, these come and go in phases. She has experienced a headache lasting up to 12 hours. At one stage she was getting these headaches which she described as “migraines” at least every two to three days. Sometimes she had missed having a headache for 10 days or it might even be as much as two weeks, but then she might have four headaches in a week. The pattern is varied with respect to her headaches. The plaintiff described the headache to Dr. Coyne, a neurosurgeon, as a thumping headache involving all of her head. She told him that her occipital region behind her eyes was particularly symptomatic. The plaintiff told Dr. Coyne that her headaches can be precipitated by tiredness, stress, or the sound of her children screaming. Although there had been some improvement in her headaches over time, they still remained a problem for her. While the frequency of the headaches had diminished compared to the initial stages after the accident, the intensity became more severe. She told Dr. Coyne that the headaches occur at intervals ranging between two days and three weeks. Further, they can last from several hours to all day in length. The plaintiff also told Dr. Coyne that she always has some neck or thoracic spine pain.
The plaintiff told Dr. Todman, a neurologist, that her headaches have been a frequent feature. At times the headaches are associated with nausea. She frequently has photo phobia with them and sometimes a sensation of bright spots in her vision with visual blurring. Again she told Dr. Todman that her headaches occur at varying intervals, but have been occurring at least on a weekly basis. They last on average for one to two days but some are longer. She also told Dr. Todman that driving in a motor vehicle or glare will trigger her headaches. The plaintiff also told Dr. Todman that her neck pain and back pain has continued since the accident.
In her evidence before me, the plaintiff stated that what she told Dr. Coyne and Dr. Todman was truthful about her neck, back and migraine complaints.
The plaintiff has two children. Her first child, Corbin, was born on 30 May 1992. Her second child, Mikaela, was born on 28 March 1995. Before the accident, it was the plaintiff’s intention to return to work 18 months after the birth of Mikaela. However, because of her migraines and the problems with her back and neck she said in evidence there was no way that she could have worked. However, notwithstanding the effects of her injuries, because of the death of her husband she had to readjust her plans to return to work. The plaintiff said that even if she had returned to work as planned, she would have ceased work upon the death of her husband. Although the plaintiff said in evidence she thought that she would have had at least a year off with her children following the death of her husband before she would return to the workforce, other answers the plaintiff gave in her evidence were to the effect that she would return to the workforce after her youngest child had completed pre-school in the year 2000. That is, her return to work was likely to be in terms of the future at the commencement of the year 2001. However because of the intensity of her migraine headaches to date, the plaintiff said in evidence were that to be the position in the year 2001, then she would be unable to return to work.
The plaintiff placed before me in evidence three statements and a letter from former employers for whom the plaintiff worked during periods between 1991 and 1994. There was no cross-examination of the authors of these statements and letter. One of these employers, Mr. Lister, became the owner of a business called Main Street Realty in Maroochydore on or about 16 May 1994. He employed the plaintiff for a period of some six to eight months until the plaintiff departed to give birth to her second child. He states her duties entailed office and reception work and rental management which included attending to the banking for both the general and trust accounts and all general office duties of the business. He states:
“I would say that she was an absolutely reliable and trustworthy employee and a pleasant member of staff.
I would say that if Jenette returned to me seeking employment and was still capable of carrying out the employment duties she had previously undertaken, I would have no hesitation in employing her should a position be available”.
Mr. Lister in the letter states that if the plaintiff were working now as property manager - reception, he would pay her a net wage of $394.90 per week. Mr. Gallop, who employed the plaintiff as a secretary/office clerk between July 1991 and May 1992 when the plaintiff left to give birth to her first child states:
“During the period of her employment, I found Jenette to be an honest, reliable and enthusiastic person who took on her tasks and performed them well and efficiently.
...
I would say that if I had an available position, and if Jenette remained capable of performing the duties of her previous employment, I would have no hesitation in re-employing her.”
Finally, Mr. Madden who was the manager of Main Street Realty from November 1993 to October 1994 when the plaintiff was employed at that business states:
“As a staff member, Jenette was polite, punctual, efficient and completely trustworthy. The reason for her departure from the office was to give birth to her second child.
...
On the basis of my prior dealings with Jenette as an employee, I say that I would have no hesitation in employing her if I was in a position to do so, and required someone possessing her skills.”
The plaintiff also put before me her resume which deals with her employment history. Again, this was not the subject of any challenge. Generally speaking, it shows the plaintiff who had left school when she was 15½ years of age built up considerable experience and qualification for many occupations and that she was thought of extremely well by many persons who came into contact with her. The resume also shows that she had considerable initiative and ability, and was not someone reluctant to work.
The plaintiff said in evidence that following the collision because of her injuries she needed the assistance of her husband and her sister, Ms. Inskip. Ms. Inskip gave evidence before me and confirmed giving assistance to the plaintiff. No suggestion was made to Ms. Inskip when she gave evidence that the assistance she gave the plaintiff with general domestic duties and the plaintiff’s children was not justified.
The plaintiff also said in evidence that after the untimely death of her husband she left the house where she and her family were living and went to Boonah to live for about eight months, where her sister and her sister’s husband rendered her assistance.
The plaintiff also described in evidence the medication she has taken, confirmed the attendances for physiotherapy and visits to Dr. Parker since the collision.
Dr. Coyne’s evidence was that in his opinion the plaintiff sustained a musculo-ligamentous injury to her cervico-thoracic spine in the collision. Further, as a consequence of this, she continues to notice symptoms of headache and neck pain. Further, at 2½ years following the collision, he regards her symptoms as stable and that they are likely to continue at their current level for the foreseeable future. He assessed the plaintiff as having sustained a 5% permanent impairment of the whole person as a result of the cervico-thoracic musculo-ligamentous injury sustained in the collision.
Dr. Todman’s opinion was that the plaintiff’s symptoms which she has suffered since the collision can be directly attributed to the collision. In his report he refers to the mechanism of injury. That is, a form of whiplash injury to the spine, mainly the cervical spine, but with some injury to the thoracic spine also. In his opinion, structures damaged include the muscles and ligaments of the spine. Additionally, damage to cervical and thoracic facet joints has occurred to account for her ongoing symptoms. Further, the headaches which have occurred since the collision are consistent with a migraine headache. In his opinion, her current symptoms have stabilized and represent a permanent state of affairs. The only additional treatment he would suggest would be a course of migraine preventative therapy with a medication such as Sandomigran. He thought there might be a 50% chance of success that this might reduce the intensity of the headaches, although not cure the headaches. He would estimate a 10% permanent disability of the whole person related to the cervical and upper thoracic spine injury. Additionally, in his opinion, there is a 10% whole person impairment related to chronic post-traumatic migraines.
Notwithstanding the views of Dr. Coyne and Dr. Todman, the defendants adduced in evidence a report from Dr. Reid, a neurologist, dated 10 May 1999 which I admitted into evidence pursuant to s.92 of the Evidence Act. Further, there was evidence from Dr. Boys, an orthopaedic surgeon.
Although the plaintiff, when she complained of headaches to Dr. Reid, used the term “migraines”, as far as Dr. Reid was concerned the plaintiff was describing intractable muscle contraction tension headaches. Dr. Reid states in her report that she has some difficulty in accepting that these current headaches can be specifically dated back to the collision of July 1996. According to Dr. Reid, many individuals who have not (Dr. Reid’s underlying) had a whiplash neck injury experience muscle contraction headaches due to tension of the craniocervical musculature after driving long distances and when they are stressed out with their children’s screaming. Dr. Reid states similarly that it is her impression that the plaintiff’s current neck and thoracic soft tissue aches and pains are related to posture and other lifestyle pressures and stresses. She states:
“This lady has had a very difficult time since July 1996 with her husband’s unexpected death and she is now left as a sole parent to bring up two young children. It is not, therefore, surprising that she would from time to time experience aching and spasming of the craniocervical musculature as a lifestyle and stress-related phenomenon. I feel empathy for this lady but that does not mean that her current symptoms can be simplistically dated back to the collision of July 1996 when, in my opinion, they are a reflection of current stresses and pressures.”
Further on in her report Dr. Reid said:
“As time passes and this lady’s children become more independent and she enters into a new relationship and gets her life on track, her symptoms should resolve. It is quite simplistic to relate her current complaints to the collision of three years ago. At the very most any permanent partial impairment she has from that event due to soft tissue strain is in the vicinity of 0%-2%.”
Dr. Boys was of the opinion after examining the plaintiff on 14 January 1999 that the plaintiff suffers muscular strain symptoms at the base of the neck and in the upper thoracic region. Further, she would appear to also suffer associated muscle contraction headaches. He notes the collision on 30 July 1996. In his opinion, a musculo-ligamentous strain of the supporting muscles of the lower cervical and upper thoracic region would be consistent with the mechanism of injury described on this day . In his opinion, the plaintiff’s levels of complaint would appear to be stable and permanent. In his opinion, the plaintiff suffers minor residual disability as a result of neck and thoracic strain. In his opinion, a 0%-2% impairment of bodily function could be quantified reflecting persistent spinal strain symptoms. He notes the plaintiff’s complaint of headache. He states in his report dated 14 January 1999 this has not been fully investigated and he would defer to his neurological colleagues in this regard.
It was submitted by the defendants that the medical evidence shows that when the plaintiff has been examined by various medical practitioners, some have found on examination that the plaintiff had no pain and a full range of movement of the cervical and thoracic spine. That is, Dr. Coyne, who saw the plaintiff on 5 February 1999, found on examination the plaintiff had no cervical or thoracic spine tenderness and the range of motion of the cervical, thoracic and lumbar spine was normal. Further, there was no focal neurological deficit in the limbs present. Dr. Boys who examined the plaintiff on 14 January 1999, found a full painless range of movement of the neck. Dr. Reid, when she examined the plaintiff on 10 May 1999, found the plaintiff to have a full range of neck and shoulder joint movements, and the detailed neurological examination of the limbs was normal. On the other hand, Dr. Todman found on his examination that the plaintiff had a reduced range of movement in the cervical spine in all directions, and there was tenderness in paravertebral muscles bilaterally. Further, he found tenderness and quite pronounced muscle spasm in both trapezius muscles.
A further aspect of the evidence referred to by the defendants in their submissions referred to the plaintiff’s descriptions regarding her headaches to various medical practitioners. That is, to Dr. Coyne she said her headaches could be precipitated by tiredness, stress or the sound of her children screaming. Further, there was no additional associated neurological features. To Dr. Reid the plaintiff said by way of example that driving long distances and children screaming could bring on her headaches. The plaintiff described to Dr. Boys headaches which Dr. Boys expressed as “intermittent poorly defined occipital and frontal headache” and that she described no nausea or vomiting or visual disturbance associated with these headaches. Whereas Dr. Todman in his report noted the plaintiff’s description of her headaches as usually having “a pulsating or throbbing quality and at times associated with nausea”. Further, that she “frequently has photo phobia with them, and sometimes a sensation of bright spots in her vision with visual blurring”.
When the plaintiff was cross-examined, she agreed she did not describe to Dr. Boys “nausea”, or “vomiting”, or “visual disturbance”associated with her headaches. However, the plaintiff said that although she does not vomit when she has these headaches she does sometimes feel nauseous. Further, she has had visual disturbances. Unfortunately, the plaintiff was not cross-examined in a way which allowed her, in my opinion, to answer as to whether she had ever suffered from some of these symptoms associated with her headaches referred to in the medical reports. I was left to wonder if the doctors specifically asked the plaintiff questions that were directed to specific matters. For example, to say as Dr. Boys did in his report dated 14 January 1999, “She describes no nausea or vomiting or visual disturbance associated with these headaches”does not make me confident that the plaintiff was asked had she ever suffered “nausea” or “vomiting” or “visual disturbance associated with these headaches”. Dr. Parker for example, in her affidavit, states that on 15 August 1996 the plaintiff attended complaining of headaches and vomiting in relation to same. Further, Ms. Frangos noted in her report of 16 September 1997 that on palpitation and movement examination the plaintiff still had joint changes and decreased range of movement at all affected levels. Dr. Pentis, an orthopaedic surgeon, whose report dated 26 June 1997 was in evidence before me and who was not cross-examined, found on examination of the plaintiff on 19 June 1997, tenderness in the cervico-scapular musculature and tenderness in the lower angle of the scapula on the right side and straining the neck and thoracic spine caused some slight pain in these regions. He did find “reasonably good range of movement” which I attribute to be his findings on examination of the movement of the plaintiff’s spine. However, he was not asked what he meant by “reasonably good range of movement” and I infer by the use of his word “reasonably” that it was not completely free movement. Further, it was his opinion that the plaintiff would be left with a residual weakness in the area and a propensity to easier aggravation of the neck. Notwithstanding what the plaintiff told Dr. Coyne about what precipitated her headaches, he accepted that as a consequence of the plaintiff’s musculo-ligamentous injury, she has continued to notice symptoms of headache and neck pain and was of the opinion her symptoms were likely to continue at their current level for the foreseeable future. He assessed a 5% permanent impairment of the whole person. He did not say he did not accept that the plaintiff was genuinely suffering from headaches as a consequence of this collision.
When Dr. Todman was cross-examined regarding the variation of movement of the spine as found by him compared to the movement of the spine found by Doctors Coyne, Reid and Boys, he said there may be some variability from day to day and that the plaintiff clearly has muscle spasm in her neck. He said the plaintiff has pain when she moves from side to side and he did not think that could really be in dispute. When Dr. Boys’ report is looked at in more detail, it can be noted that although he found a full painless range of movement of the neck and a full range of movement of the shoulders, he noted a complaint by the plaintiff of thoracic strain in the upper ranges of flexion, abduction and with shoulder protraction. Dr. Todman described the reduction as moderate in all directions, however he qualified it by saying it was not severe. He also referred to the restriction as being of the “full duration of movement” and that aspect was not clarified as to whether that meant holding the plaintiff’s neck in a certain position, that is, to the left or the right for a particular period of time, and whether what Dr. Boys and others have reported on is the plaintiff’s ability to make movements to the left or the right or flexion and extension for very short periods of time.
Although the evidence of Dr. Parker, Ms. Frangos and Dr. Pentis is of the plaintiff in 1996 and 1997, whereas the findings on examination of the plaintiff by Doctors Coyne, Reid and Boys are of the plaintiff in 1999, I am not persuaded that the plaintiff has not suffered the symptoms she complains about since the collision to date. I would expect and accept that as the plaintiff has modified her activities over time and takes time to perform necessary activities and has not worked that she may be pain free and have free movements of her spine on examination. That she had pain and restricted movement when examined by Dr. Todman I accept could be because of the variability referred to by Dr. Todman and could be due to what the plaintiff did before his examination or whatever Dr. Todman did during the examination. The plaintiff said after his examination she did develop a headache.
Dr. Parker’s evidence shows the plaintiff has vomited in the past. She may no longer vomit, however is still suffering from the effects of her injuries. Ms. Frangos and Dr. Pentis do confirm restriction of movement of the spine which I accept shows the plaintiff suffered serious injuries in the collision. The collision I accept was at a speed of 60 kilometres per hour according to the plaintiff.
Besides these differences between descriptions of the symptoms associated with the headaches and the movement of the spine on examination by various medical practitioners, the defendants also relied upon the events surrounding the death of the plaintiff’s husband. The defendants contended that as those circumstances surrounding the death of the plaintiff’s husband were tragic to say the least, the emotional impact and the subsequent stress upon the plaintiff is truly the cause of the plaintiff’s ongoing complaint of headaches. In addition to other evidence directed to persuading me that was so with respect to the plaintiff, the defendants adduced in evidence what the plaintiff said to Mr. Justice Derrington when the person who shot the plaintiff’s husband was sentenced. In my opinion, everything the plaintiff said in her victim impact statement to Mr. Justice Derrington one would expect to have been said by the plaintiff in her circumstances. However, there is nothing in that statement or in any other circumstances adduced in evidence that persuades me that the death of the plaintiff’s husband and the plaintiff’s reaction to it, and the circumstances surrounding her has the consequence that the death of her husband has caused or contributed in any way to the symptoms the plaintiff has suffered from since the death of the plaintiff’s husband.
I have no hesitation accepting the plaintiff as a truthful and reliable witness. There is no reason for me not to accept the statements of her pre-collision employers, Messrs Lister, Madden and Gallop. Their statements describe the plaintiff as “honest”, “reliable” and “trustworthy”. That is the view I have formed of the plaintiff after observing her in the witness box giving evidence and being cross-examined. The plaintiff gave her evidence with complete candor. She made concessions adverse to her interests, especially about matters such as when she would have returned to the workforce after having children and when, in the hypothetical situation, she would have returned to the workforce following her husband’s death. As I have said, the contents of her resume show the plaintiff to not only have had a good work history, but to have been considered by many others to be a good person. The plaintiff’s sister also gave evidence of the need to provide her sister with assistance, particularly in the two months following the collision, and from time to time thereafter until the death of the plaintiff’s husband. I formed a favorable impression of the plaintiff’s sister who gave her evidence in what I consider to be an honest and helpful manner, and nothing was revealed of her during cross-examination to alter that opinion. In my opinion, unless the plaintiff was someone who was genuinely unable to do her work whether it was at “work” or at home she would not stand by and let someone else do it for her. Further, I do not consider that her sister would have had the need to provide that extra assistance unless the plaintiff genuinely required it. Further, the contention that the death of the plaintiff’s husband caused or contributed to the plaintiff’s headaches, whether described as migraine or whatever description is applied to her headaches suffered by her after the death of the plaintiff’s husband, is not something that I accept. That is, I do not accept that contention when there was no challenge to the evidence of Dr. Parker nor to the evidence of Ms. Frangos that both those persons were treating the plaintiff for the effects of her injuries which included headaches. The complaint of headaches was made by the plaintiff soon after the collision, and treatment continued thereafter and prior to the death of the plaintiff’s husband.
Because I accept the evidence of the plaintiff, I therefore prefer the evidence of Dr. Todman as against the evidence of Dr. Reid and Dr. Boys. That is, because I accept the evidence of the plaintiff that her symptoms of neck pain, back pain and headaches occurred before the death of her husband and have persisted thereafter, Dr. Todman provides, in my opinion, the evidence of mechanism by which one can understand the reason for the plaintiff having suffered from these symptoms since the date of the collision to the present time and why she is likely to continue to suffer these symptoms on a permanent basis in the future. Although Dr. Reid thought it was quite simplistic to relate the plaintiff’s current complaints to the collision of three years ago, in my opinion, it is Dr. Reid who has taken the simplistic approach when providing a medical opinion regarding the cause of the plaintiff’s complaints of neck pain, back pain and headaches of whatever description. That is because, in my opinion, Dr. Reid’s approach overlooks the history dating from the collision up to the date of the death of the plaintiff’s husband. Furthermore, Dr. Reid, in my opinion, is at a disadvantage because I did not form the impression of the plaintiff that she was someone who might succumb to the emotion and stress in the way contended for by the defendants with the support of Dr. Reid’s opinion. That is, the plaintiff conceded the impact upon her over her husband’s death. The plaintiff’s sister, Ms. Inskip, confirmed that the plaintiff was very upset over the death of her husband, and that the plaintiff was very emotional. However, what the plaintiff’s sister also said in evidence was the plaintiff was very strong willed and a brave woman and that they call her “the iron woman”. That is a view I share with the plaintiff’s sister. I think it was a very brave woman who went to the Supreme Court and orally delivered her victim impact statement in the terms of that victim impact statement to Mr. Justice Derrington. Dr. Reid put forward no acceptable explanation to me as to why the “lifestyle stresses” referred to in her report are now more likely to provoke the headaches than the trauma of 30 July 1996.
Although Dr. Coyne came to the view that the plaintiff had a lesser permanent impairment of the whole person as a result of the cervico-thoracic musculo-ligamentous injury sustained in the collision, I am persuaded because of the severity of the symptoms described by the plaintiff, and my preference for Dr. Todman’s evidence that the plaintiff’s disability and impairment are at the levels described by Dr. Todman for the cervical and upper thoracic upper spine injury and the chronic post-traumatic migraines. The effect therefore is that the plaintiff not only has headaches which are substantially impairing her but also a substantial disability of the cervical and thoracic spine.
I do not consider the plaintiff has over-stated her symptoms or their consequences. Her symptoms have affected her enjoyment of indoor cricket and walking. She said in evidence that while she can drive for an hour or so, she has to stop. Her lifestyle has been significantly affected by these injuries. Her interaction with her children has suffered. To have to close off a room and allow the children to adjust to the absence of their mother is an example of the effect of these injuries upon her. The plaintiff is very young, now being only 30 years of age. Two suggested avenues for relief were made in the course of the proceedings. One is for the plaintiff to engage in the whiplash injury program at the University of Queensland which is of recent origin. There is no definitive evidence of what the prospects of success would be for that program, nor its cost. The second avenue is the medication Sandomigran suggested by Dr. Todman as to which there is a 50/50 prospect of reducing the intensity of the headaches but not resolving the headaches for the plaintiff.
In all the circumstances I allow the plaintiff $30,000 for pain, suffering and loss of amenities of life.
Further, I allow the plaintiff interest at 2% per annum on $10,000 for 2.9 years which is a sum of $580.
As I have said, the plaintiff had an excellent work record before the collision. I find on the evidence she had very little time without work between jobs and had little difficult securing employment. Further, she was well qualified and well experienced in office work and secretarial skills. She even expressed in evidence that she would desire to be in the workforce to ensure that she retains her workplace skills. It was the plaintiff’s intention to resume work about 18 months after Mikaela’s birth. Because of her work history in the years immediately before the collision, I find she was more likely than not to have worked in a real estate office or similar employment environment between early 1996 and 8 February 1998 when her husband died. The tax returns and group certificates in evidence demonstrate that over the 12 months between late December 1993 (when the plaintiff returned to work after the birth of her first child) and about December 1994 when she ceased work to prepare to give birth to Mikaela, the plaintiff earned some $9,796.76 net. I find it is more likely than not that the plaintiff would have earned a similar amount in one year. Therefore, for the 15 month period between November 1996 and February 1998 I find it is more likely than not that the plaintiff would have earned a figure of $12,245 if it had not been for the injuries she suffered in the collision. The defendants submitted that I ought to discount past economic loss for a number of factors. That is, she may have had difficulty finding employment and she may have made a decision not to return to employment after having been off work after the birth of her second child. I do not accept that those factors justify discounting the plaintiff’s past economic loss claim. That is because the evidence before me persuades me that the plaintiff had every intention of returning to the workforce at the time she said she would, and that she would have had no difficulty finding employment if not with the very persons who have provided the statements concerning the plaintiff, but other employers. My estimation of the plaintiff is that she was a person who could do exactly what she said she intended to do and would be very sought after by an employer despite what might be said to be the competition. On the evidence before me in the area of work for which the plaintiff had qualifications and experience she would have had little or no competition. Therefore, I allow the plaintiff $12,245 for past economic loss.
I consider interest ought to be allowed on past economic loss at the rate of 10% per annum from the midpoint of the period over which the loss was sustained, that is, from about the middle of 1997 to date. The tax returns and group certificates before me show over this period the plaintiff received approximately $3,100 in social security payments. Accordingly, I allow interest at 10% per annum on the amount of $9,145 of the past economic loss over a period of two years. Therefore, I allow the plaintiff $1,825 for interest on past economic loss.
I also allow the plaintiff loss of past superannuation at 5% of the amount of past economic loss. I therefore allow the plaintiff $610 for past superannuation loss.
With respect to future economic loss, as the plaintiff said, upon the death of her husband she would have ceased work, and on her evidence would not have returned to the workforce until probably the beginning of the year 2001 when Mikaela commences her primary schooling. Dr. Todman did say that the plaintiff may be capable of returning to some part time employment. However, he said the number of hours was hard to estimate. He certainly thought she was not capable of full time employment. I find it is more likely than not that had the plaintiff not been injured she would have returned to at least part time employment in a real estate office at the beginning of the year 2001, and possibly full time employment. She said in evidence that if full time employment was available that is what she would have accepted. I find it is more likely than not that the plaintiff will now be denied, on account of her persisting headache complaints, any opportunity to return to full time employment, and that her prospects of even part time employment are now materially prejudiced. In all the circumstances I consider it is appropriate to allow the plaintiff in the first instance an average weekly loss of $150 net over the period of 32.5 years between the plaintiff’s notional return to work early in the year 2001 and retirement at the age of 65. However, this amount ought to be discounted by 40% to reflect factors such as the prospect that the plaintiff may be relieved of some of the intensity of the headaches by the therapy of Sandomigran and may participate in some program at the University of Queensland whiplash clinic. Mr. Grant-Taylor, counsel for the plaintiff, provided me with the following calculations which I adopt:
Allow 34 years (x 866) loss of wages @ $150 net loss per week $129,900
Deduct the next 1.5 years (x 75.5) loss at $150 net per week (on the
basis that the plaintiff would not have returned to work in any event
until early 2001) $11,325
Sub-Total $118,575
Discounted by 40% $47,430
Total $71,145
I therefore allow the plaintiff $71,145 for future economic loss.
I also allow the plaintiff loss of future superannuation at the rate of 6% per annum on the future loss which is a figure of $4,265.
As I accept the evidence of the plaintiff and her sister, Ms. Inskip, I allow the plaintiff $2,510 for past Griffiths v. Kerkemeyer damages.
Further, I find that it is more likely than not that the level of the plaintiff’s symptoms and disability and impairment she will have the need in the future for some 30 minutes services each week over a period of 45 years. The figure of 45 years is below the plaintiff’s life expectancy. It was agreed $10 per hour was a reasonable rate to apply for Griffiths v. Kerkemeyer damages. Using the 3% interest tables, a figure of $6,490 is the result. I use the 3% interest tables because I find it is more likely than not that the services in the future will be provided voluntarily by relatives and friends of the plaintiff, and that the plaintiff will not pay for these services (Fire and All Risks Insurance Co Limited v. Mott and Anor (Court of Appeal 11904/98, judgment delivered 15 June 1999)). This figure should then be discounted by 40% for the sane reasons that were relevant to the claim for future economic loss. Therefore, I allow the plaintiff $3,895 for future Griffiths v. Kerkemeyer damages.
On the basis of the expenses the plaintiff has incurred for pharmaceutical, medical and traveling expenses to date, I find it is more likely than not that the plaintiff will incur those expenses in the future and I allow the plaintiff $10 per week over 15 years to meet those expenses. Therefore, I allow the plaintiff $5,550 for these items.
I also allow the plaintiff interest on the past lost superannuation at 10% per annum over two years since the midpoint of the period over which the loss was sustained which is a figure of $120. I also allow the plaintiff interest at 2% per annum on the past Griffiths v. Kerkemeyer damages over 2.9 years which is a figure of $145.
Therefore, summarizing the damages I have assessed, I allow the plaintiff the following:
Pain, suffering and loss of amenities $30,000.00
Interest at 2% on $10,000 thereof over 2.9 years $580.00
Past economic loss $12,245.00
Interest at 10% on $9,145 thereof (after allowance for interim
receipt of social security payments of approximately $3,100) over
2 years since mid point of period over which loss was sustained $1,825.00Past loss of employers’ contributions to superannuation at 5% of the
claim for past economic loss $610.00
Future economic loss $71,145.00
Future loss of employers’ contributions to superannuation at 6% of
the claim for future economic loss $4,265.00
Past Griffiths v. Kerkemeyer damages $2,510.00
Interest at 2% on $2,510 over 2.9 years $145.00
Future Griffiths v. Kerkemeyer damages $3,895.00
Future pharmaceutical, medical and traveling expenses at $10
per week over 15 years $5,550.00
Agreed special damages $4,485.60
Interest at 5% on $3,577.85 thereof over 2.9 years $518.78
Total: $140,994.38
I give judgment for the plaintiff against the second defendant for the sum of $140,994.38.
I will hear submissions on costs.
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