Jones v Mulligan

[2000] NSWSC 476

CITATION:	JONES v MULLIGAN [2000] NSWSC 476
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 400004/99
HEARING DATE(S):	22/05/00, 23/05/00
JUDGMENT DATE:	26 May 2000
PARTIES :	Catherine Ann JONES v Marcus MULLIGAN
JUDGMENT OF:	Barr J at 1

COUNSEL :	Plaintiff: B Toomey QC/A Black Defendant: ID Roberts
SOLICITORS:	Plaintiff: Walsh & Blair Defendant: Connery & Partners
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Stevens v Head (1992-1993) 176 CLR 433
DECISION:	See paragraph 44

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Friday, 26 May 2000

400004/99 - Catherine Ann JONES v Marcus MULLIGAN

JUDGMENT
1   HIS HONOUR: The plaintiff Mrs Caroline Ann Jones was injured in a motor vehicle collision in Launceston on 8 August 1997. The defendant, who was the owner and driver of the other car, has admitted liability. The collision was a serious one. The plaintiff was stationary at traffic lights and the defendant’s car ran into the rear of it at some speed. There was no attempt to brake. As a result, the plaintiff’s car was catapulted forward into a stationary car immediately in front of it. The plaintiff’s head and neck were jerked violently backwards, then forwards, as a result of the double collision.

2   Although the collision took place in Tasmania, it is the law of New South Wales that has to be applied in the assessment of damages. Stevens v Head (1992-1993) 176 CLR 433. The defendant wishes to reserve the right to argue in due course that the rule in Stevens v Head is wrong, but concedes for present purposes that I am bound to apply it. That means, among other things, that the provisions of the Motor Accidents Act 1988 apply.

3   Some hours after the collision the plaintiff became aware of increasing pain and stiffness in her neck, spreading down between the shoulder blades and up over the back of the head. The collision occurred at 4.30pm, and by 9pm the plaintiff decided to go to the emergency department of the Launceston General Hospital. She was examined there and x-rays of her neck and thoracic spine were carried out. It was suspected that she might have sustained a crush fracture of either the fourth or fifth thoracic vertebra and she was advised to stay overnight. However, she declined the invitation and went home. She was prescribed a strong pain killer.

4   The pain and stiffness in her neck steadily increased over the first twenty-four hours following the collision so that she could barely move. Her neck was so stiff and painful that she was unable to sleep.

5   One week after the collision the plaintiff returned to the clinic at the hospital and saw an orthopaedic surgeon. The x-rays were reviewed and she was told that no fracture of the thoracic spine could be seen. She was advised to start physiotherapy and she took that advise, having physiotherapy every day until she and her family left Launceston about five weeks after the collision. She wore a collar for a few weeks as well.

6   The plaintiff was born on 23 February 1965. In 1981 she completed Year 10 at Nyngan High School. In Nyngan she met the man she would eventually marry. She moved to Queensland and lived with her mother for some time, and then to Sydney. During that time she obtained various jobs, first as a cleaner for about nine months, then as a receptionist, then as a dental nurse. In 1984 she became pregnant with her first child. She returned to Nyngan and worked in a video store owned by the mother of her boyfriend. Her son was born in 1985. In 1991 she and her boyfriend moved to Wagga Wagga. In 1992 her daughter was born. She and her boyfriend later married. In 1994 she took up work at the Wagga Wagga Leagues Club as a steward, and eventually as a supervisor.

7   The plaintiff’s husband is a mining construction worker. His work required him to be in remote places and to work twelve hours per day over a seven-day week. The family began to follow a pattern designed to accommodate his work. They would move to a place where he would find work. He would go about his work. The plaintiff would assume full responsibility for the care of the children and in addition gain work locally. As well, she undertook full responsibility for the maintenance and repair of the premises where they lived from time to time. She became good at carpentry jobs and the like. As she said in evidence, she was pretty good with a cordless drill. She also pursued an active social life and was interested in sewing and other craft work. She visited the gymnasium regularly. She had a busy and fulfilling life.

8   In this way, the family moved from Oberon in New South Wales to Launceston, where the plaintiff was injured, and later to Orange where the plaintiff’s husband obtained work at a goldmine.

9   In September 1997 the family left Tasmania. The plaintiff stayed with relatives at Nyngan and continued physiotherapy at Dubbo. She had persistent and severe pain and stiffness in the neck, spreading down between the shoulder blades for the first two months after the collision. Gradually, with physiotherapy, there was a lessening of the severe stiffness in the neck, but the pain remained severe and persistent.

10   The move to Orange happened in October 1997 and, in accordance with her practice, the plaintiff got a job as a bar steward at the Ex-Services Club. She found the work very demanding, lifting and carrying heavy trays of glasses and the like. Her neck and thoracic pain were stirred up and she found it increasingly difficult to carry on. She was having physiotherapy every day. After a number of weeks her employer required her to have a medical examination. She failed and lost the job.

11   The plaintiff’s physiotherapist was concerned that he was making no progress with her and advised her to seek specialist opinion about her neck pain. Accordingly, her general practitioner referred her to Dr Mutton, an orthopaedic surgeon in Orange. According to Dr Mutton, x-rays showed degenerative changes from T4 to T8, with a mildly increased thoracic kyphosis and a mild scoliosis convex to the left, with a slight wedging of T7 and T8. He thought that the changes suggested old Scheuermann’s disease. He thought that the plaintiff had sustained a ligamentous injury to the cervical spine with a contusion to the thoracic spine, aggravating the pre-existing degenerative changes.

12   In January 1998 the plaintiff began to reside in Wagga Wagga. She was anxious to get back to work, but her general practitioner thought that she was not ready and arranged a further course of physiotherapy. In March she consulted Dr Geoffrey Coffey, neurologist. On examination, Dr Coffey noticed marked restriction of neck movements due to pain and stiffness and local pain over the mid-thoracic spine. X-rays were clear and there were no significant findings on neurological examination.

13   Dr Coffey advised conservative management, with daily neck exercises and regular swimming. He expected slow improvement but thought that the plaintiff might be left with residual stiffness and discomfort. He thought that she might always find that sitting for long periods in one position aggravated her neck pain and that heavy physical work, such as lifting and carrying trays of glasses and the like, might aggravate her discomfort. He considered her unfit for work.

14   At about the same time the plaintiff was referred to Dr Middleton, a rehabilitation medicine physician. She also noticed the mild early degenerative changes but noted that there was no history of previous back injury or spinal pain. She, too, advocated a conservative program of exercises for the next six to twelve months. She considered the plaintiff’s prognosis guarded. She agreed that he plaintiff was unfit for work and thought that her future fitness depended upon her making significant improvement with her neck and back pain and disabilities.

15   Through all this time the plaintiff continued to suffer a constant, pulling pain. She found it hard to find a comfortable position and did not sleep well. She became emotional and cried a lot. Whereas she had been responsible for all the jobs around the house, her husband and then her son found that they had to take over these jobs.

16   By September 1998 the plaintiff had made some progress and thought that she could go back to work for one day a week, so she went back to the Wagga Wagga Leagues Club and got a job which started at three to five hours per week, building up to five and ten hours when she was needed. She is still working between five and ten hours per week at that club. She does bar work, which involves lifting and stacking glasses, she attends to pay outs on poker machines and does some supervising.

17   After a few months doing that work the plaintiff saw Dr Martin Jude, neurologist. He thought that her primary problem was the persistence of mechanical neck discomfort and soft tissue injury, which were being appropriately treated. Although her progress had been slow, he thought that she had an increasing range of movement and suggested a trial of drugs to control pain and assist sleep. The plaintiff accepted a suggestion of local trigger point injections, and they gave her some relief.

18   In July 1999 the plaintiff was referred to a pain specialist, Dr Todhunter. He noted that the plaintiff was exquisitely tender over the spinous processes at T5-6 and over the facet joint line around the C4-7 levels. He noted reduced range of motion of the cervical spine. He undertook diagnostic facet joint blocks at C5-6 on both sides. That produced pain relief, so he carried out radiofrequency facet joint denervation at C5-6. These procedures produced significant reduction in pain and headaches, but the pain did not disappear and began to increase again in March 2000. The denervation procedure was accordingly repeated.

19   Dr Todhunter’s opinion is that the plaintiff has a permanent impairment, her cervical pain being secondary to facet joint trauma. That problem cannot be permanently cured and will not heal spontaneously. Repeated denervation procedures will reduce pain significantly, but their repeating will be necessary because of nerve regeneration.

20   In his last report of 9 December 1999 Dr Coffey hoped for slow improvement in the neck and mid-thoracic pain and stiffness, but suspected that the plaintiff would be left with continuing symptoms. He considered her fit to work part-time on light duties. He thought that she should remain under the care of a pain clinic and that she might need psychiatric assessment.

21   Accordingly, the plaintiff was referred to Dr Westmore, who diagnosed adjustment disorder with a depression of mood. He thought that the plaintiff should be on anti-depressants and recommended a six-month trial. He thought that if her pain became more disabling her mood state would deteriorate and that psychiatric assessment might become necessary. He thought that the long-term prognosis from a psychiatric perspective was related to her pain and disability.

22   The plaintiff’s position now is that she always experiences pain but that the levels vary from day to day and so does her ability to perform tasks. Her working life is made difficult because she cannot predict what she will be able to achieve on any given day. She takes a tranquilliser and a sleeping tablet. She expects periodically to undergo Dr Todhunter’s denervation procedure. She has a TENS machine, which gives her some temporary, but not permanent, relief. She will continue to follow the advice of her medical practitioners.

23   Her symptoms have spoilt her personal life. She has suffered a loss of libido and intimate relations are less pleasurable for her. She becomes angry very easily. She is unable to carry out the jobs around the house that she used to.

24   She continues with the work at Wagga Wagga Leagues Club, but manages only between five and ten hours per week. As things stand she cannot do more.

25   The defendant does not accept that the plaintiff’s condition is as bad as has been made out. The plaintiff said in cross-examination that she could produce pain from the top of her neck down to the mid-thoracic region merely by touching the vertebrae with one finger. Relying on that evidence, counsel for the defendant submitted that the plaintiff was unduly introspective about her condition and prone to consequent exaggeration. I am prepared to accept that the plaintiff is probably introspective about her condition and apt in all the circumstances to be more than ordinarily sensitive to pain, but I think that there is a genuine underlying condition for her complaints.

26   I have come to this view notwithstanding medical evidence tendered by the defendant. Dr Harvey, in a report dated 23 September 1999 thought that the plaintiff had no physical disability that would prevent her from working full-time as a bar steward if she wanted to do so. He thought her prognosis excellent and would expect a complete recovery in time. He thought that her symptoms had no organic basis. In coming to these views Dr Harvey thought that it impossible that a patient should suffer any very significant injury to the neck and back if she did not suffer symptoms for two hours after the collision.

27   Dr Gonski thought that the history did not suggest a serious injury and concluded in the absence of radiological findings that there was no organic disability. He thought that no treatment was necessary and that the plaintiff should be fit to return to her full duties.

28   In a lengthy report, Dr Lowy reviewed the various available medical reports and commented in detail upon the procedures and treatment already carried out. He concluded that the plaintiff’s “chronic pain behaviour” had been further entrenched by unnecessary medical treatments by Dr Todhunter. Dr Lowy commented upon the resort to what he regarded as unnecessary radiological procedures, and was of the opinion that they compounded the problem and the “confusion”. Following his examination of the plaintiff he observed that she inconsistently and grossly overreacted to light and normal palpation over a wide range of her neck, cervical spine, upper back and thoracic spine. His criticisms were long and trenchant and he found himself unable to explain the plaintiff’s complaint of pain on any physical or injury basis. Correspondingly, he was unable to explain the plaintiff’s claim of reduced work capacity on the basis of any injury sustained in the collision, other than perhaps for a period of eight or even twelve weeks afterwards.

29   I note in this connection that Dr Coffey in an examination in December 1999 noticed the appearance on an MRI scan of a general straightening of the cervical spine due to muscle spasm with minor degenerative changes. I think that this condition would be unlikely to be detected if the plaintiff were exaggerating the symptoms in the manner contended for by the experts whose opinions have been tendered on behalf of the defendant. As Dr Todhunter observed in his report of 27 October 1999, it is well known that there is a poor correlation between x-ray changes and chronic pain conditions. To me, the very fact that the plaintiff is prepared repeatedly to undergo the very unpleasant procedure of denervation demonstrates that there is a serious debilitating condition that she will go to some lengths to alleviate.

30   I watched and listened carefully to the plaintiff as she gave her evidence. I noticed the difficulty she had in coping with what, if I may say so, was an admirably brief and sensitive cross-examination. I believe her.

31   Of course, it is appropriate to pay due respect to the opinions of the medical experts who have undertaken the responsibility of advising and treating the plaintiff. I do so here and accept their evidence, particularly that of Dr Coffey and Dr Todhunter, about the aetiology of the plaintiff’s symptoms and as to her prognosis. In combination with the favourable impression I have received of the plaintiff, that acceptance leads me to the conclusion that the plaintiff has the pain and disabilities she now claims to have and that they stem solely from the collision, most probably from the facet joint trauma referred to by Dr Todhunter.

32   It is necessary to determine what the probable future course of the plaintiff’s condition will be. In doing so I will ignore the opinions of the experts who say that she has no disability or no disability stemming from the collision. Dr Courtenay, neurologist, observes that there has been minimal improvement apart from temporary relief, that the prognosis is poor and that the plaintiff is unable to do any work. I think that that paints too gloomy a picture. Dr Coffey, who is also a neurologist, continues to hope for slow improvement but says that the plaintiff’s continuing symptoms will require her to restrict her activities. Dr Middleton, a rehabilitation specialist, thinks it most likely that the plaintiff will continue to have some head, neck and upper back pain and disability at much the same level as now. Dr Todhunter considers that the problem cannot be fixed permanently and that only temporary relief can be offered.

33   I think that the proper conclusion is that the plaintiff’s condition is permanent but that it has not been established that there will be no improvement in the future. I think that her symptoms may well improve, though I do not think the chances are great. I shall accordingly reduce her damages for the future by only a modest amount.

Non-economic loss

34   In consequence of the collision the plaintiff has suffered constant, though varying, pain and restriction of movement and will continue to do so. Although her symptoms may improve, she will never be rid of them altogether. She will undergo unpleasant denervation procedures for relief from time to time. She will be unable to work full-time or to do all the other tasks she otherwise would have done. Her personal life, including the intimate relations between herself and her husband, have been seriously interfered with. I assess the severity of the plaintiff’s non-economic loss at forty percent of a most severe case. That produces a figure of $109,200.

Past economic loss

35   I accept the basis of the calculations in the plaintiff’s schedule of damages and accordingly allow the calculated amount of $36,874.

Past medical expenses

36   These are agreed at $9,231.10.

Future medical expenses

37   For one visit to a pain relief specialist, two visits to a general practitioner and up to ten visits to a physiotherapist I allow $500 per year. For the cost of denervation treatment I allow $1,800 per year. For medication I allow $400 per year. These allowances total $2,700, or $52 per week. The plaintiff is thirty-five years old and has a life expectancy of forty-seven years. The five percent multiplier is 961.5. This produces an allowance of $49,998 which I reduce for the vicissitudes of life and the prospects of an improvement in the plaintiff’s symptoms, with a consequently reduced need for these services, to $30,000.

Future economic loss

38   According to the plaintiff’s agreed schedule of earnings the plaintiff has earned during the present financial year at the rate of $156.50 per week. She would have earned $365 net per week. I will allow her the difference, namely $209, to the age of sixty-five years. The multiplier is 822. That produces $171,798, but to that figure I shall apply a substantial discount to allow for the vicissitudes of life and for the prospect of some improvement in her condition, which will allow her to work longer hours, and for the prospect of her obtaining lighter work of the kind she has done in the past, for example, as a receptionist or a sales assistant. I allow $100,000.

Domestic assistance

39   I accept the evidence of the plaintiff and her husband that at the present time the plaintiff receives from her husband and their son the value of about two hours per day in domestic assistance. The husband cooks the main family meal each evening, and in my estimation that alone accounts for not less than one-half of the figure claimed.

40   The evidence does not permit the precise calculation of the value of past domestic assistance, and I allow $10,000.

41   I will discount the number of weekly hours for the future to allow for the prospect of an improvement. I allow twelve hours per week at $17 per hour. The multiplier is 961.5. I shall apply a further fifteen percent discount to allow for the vicissitudes. This produces a figure which I will round down to $166,500.

Superannuation loss

42   According to the evidence of Mr Peter Carroll, which was not challenged, the present net value of employer financed superannuation for a thirty-five year old employee earning $200 per week is a little over $12,000. I allow $12,000.

43   The Fox v Wood component was agreed at $7,130.26.

44   The total allowance I make is $480,935.36. The defendant has a defence for amounts paid of $32,092.99. Accordingly there will be a verdict and judgment for the plaintiff in the sum of $448,842.37. the defendant must pay the plaintiff’s costs in an amount to be agreed or assessed.

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Last Modified: 10/06/2000