Jones v Schultz
[1991] TASSC 173
•11 October 1991
Serial No B59/1991
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Jones v Schultz [1991] TASSC 173; B59/1991
PARTIES: JONES, Kaye Maree
v
SCHULTZ, Raymond
FILE NO: 1005/1988
DELIVERED ON: 11 October 1991
JUDGMENT OF: Zeeman J
Judgment Number: B59/1991
Number of paragraphs: 24
Serial No B59/1991
File No 1005/1988
KAYE MAREE JONES v RAYMOND SCHULTZ
REASONS FOR JUDGMENT ZEEMAN J
11 October 1991
On 8 April 1987 a vehicle being driven by the plaintiff came into collision with another vehicle driven by the defendant. The plaintiff was injured in that collision. This action was brought by her to recover damages arising out of those injuries. The defendant did not dispute that he had been negligent. On 13 January 1989 interlocutory judgment for damages to be assessed was entered with the consent of the parties. My task is to assess those damages.
The plaintiff is a married woman aged 31. She has two children and is shortly expecting a third. I refer to the domestic situation of the plaintiff and her husband in further detail later in these reasons. The children are aged 10 and 2. As a result of the collision, the plaintiff hit her knees on some part of her motor vehicle underneath the dashboard or steering column, and hit her right shoulder against the bucket seat. The plaintiff's initial complaints were that she had a bad headache and pain and restricted movement in the neck. She received treatment from her general practitioner who prescribed analgesics. She also underwent acupuncture treatment (which was not successful) and physiotherapy. Her principal ongoing complaints are painful conditions of the left knee and the right shoulder, both of which are said to have been caused in the accident.
A major component of the plaintiff's claim is her claim for loss of past and future earning capacity. At the time she was injured the plaintiff was employed as a process worker at Cadbury's. She continued in that employment until 30 July 1989 when she took accouchement leave which continued for a period of one year. It was the plaintiff's case that had it not been for her injuries, she would have returned to work on 1 March 1990, but that she was not able to return to work either then or at the later time when she ceased to be entitled to take leave, as a result of which her employment was terminated. The plaintiff's claim, as particularised, alleges that she continues to be unable to return to work; that she is not fit to perform work of the type which formerly she performed at Cadbury's; and that she is unlikely to obtain suitable employment in the future. The particular injuries said to have resulted in her incapacity for work are those said to have been caused to her right shoulder and to her left knee. An element in the plaintiff's claim for damages was the assertion that as a result of the pain which she suffered during the period immediately after the accident she became irritable and bad tempered, and that that had a significant adverse effect on her relationship with her husband. She claimed that what had been a relationship which she described as being "good, really good" became quite unhappy. She said that finally her husband moved out of the matrimonial home. It ought to be noted that although the plaintiff and her husband still claim to be separated, the husband is the father of the two children conceived by the plaintiff during separation and the husband currently spends as much time with the plaintiff as will not prejudice her entitlement to Social Security benefits.
As the case developed, the following matters emerged as requiring determination for the purpose of assessing the true nature and extent of the disabilities suffered by the plaintiff as a result of her injuries:
1The extent, if any, to which it could be said that the plaintiff's undoubted left knee condition might be said to be causally related to any injury suffered in the accident.
2The extent, if any, to which her left knee and the right shoulder conditions have affected the plaintiff's ability to perform the tasks she formerly performed in the course of her employment with Cadbury's and her normal household tasks.
A consideration of those questions, and in particular the second of those questions, requires an examination of the credibility of the plaintiff as a witness. Her credibility was very much in issue in this case. The defendant called Kerrie Wells, currently the employment officer at Cadbury's. She has held that position since January 1990. She had been employed by Cadbury's in one or more other capacities for several years prior to that. She has known the plaintiff since about 1979. For some time they were friends, although that position changed in 1987 in circumstances to which I refer shortly. In examination–in–chief, Mrs Wells gave evidence as to a conversation which she had with the plaintiff in September 1990 at Cadbury's. The plaintiff had visited the factory on a tour. She detached herself from the tour group and visited Mrs Wells in her office. Mrs Wells said that the plaintiff enquired about returning to work. She said that she told the plaintiff that a return to work would need to be on the basis of the plaintiff performing a full range of duties, and that the plaintiff would need a full clearance from her doctor. Mrs Wells said that the plaintiff replied that as soon as she received her settlement from the Motor Accidents Insurance Board (which I infer was a reference to the damages which I am required to assess), she would return to see Mr Bye to get a clearance certificate. The plaintiff admitted having had a discussion with Mrs Wells, although she thought that it was on a different occasion, but denied the critical parts of the conversation, saying she did no more than enquire about the availability of light duties. Mrs Wells said that if the plaintiff produced such clearance she would have a good chance of being re–employed by Cadbury's, her previous experience standing her in good stead.
Counsel for the plaintiff cross–examined Mrs Wells as to the circumstances in which she and the plaintiff ceased to be friends. She agreed that in early 1987 she and the plaintiff had had a falling out and that they had had an argument. She was asked as to what the argument was about, and her explanation was as follows:
"Kaye was actually seeing a young gentleman and they were meeting at my place. This night this fellow turned up unexpected that I didn't know about. Kaye turned up and I was accused of having an affair with him."
Later, in re–examination, she said that from her observations the plaintiff and the male person were on friendly terms. She said that the plaintiff and the male friend had stayed at the witness' house. She said that the plaintiff told her that she was seeing a lot of the male friend, that she was keen on him, and that they were spending a lot of time together.
Counsel for the plaintiff did not invite me to reject the evidence given by Mrs Wells on the matter of the plaintiff's male friend. He did not cross–examine Mrs Wells in any manner whereby it was suggested that what she had said on the subject was incorrect. Counsel was given time to consider whether or not to apply to re–open his case, and counsel for the defendant indicated that he would not oppose such an application if made. No such application was made. I accept Mrs Wells' evidence on this question. Counsel for the plaintiff did ask me to reject Mrs Wells' evidence as to the conversation in September 1990. He suggested that what she had said may have been as the result of a faulty memory. However, having seen and heard Mrs Wells, I have no hesitation in saying that I unreservedly accept her evidence on this topic. I found her to be an impressive witness. I find that she was a truthful witness.
My findings as to Mrs Wells' evidence lead me to the following conclusions:
(a)The plaintiff was untruthful, or at least did not tell the whole truth, in her description of her relationship with her husband prior to the accident. I infer from the evidence of Mrs Wells that the plaintiff had a romantic attachment to a man not her husband earlier in the year in which she was injured, and at a time when she was cohabiting with her husband.
(b)The plaintiff was untruthful in her denials of the conversation which she had with Mrs Wells in September 1990. She made the enquiries related by Mrs Wells. I conclude that at the time she made those enquiries she felt able to return to her normal duties (although whether she was in fact able to perform those duties depends on a consideration of the medical evidence, as well as the plaintiff's evidence, to which I will refer later), and that she was motivated not to return to work for so long as her claim for damages remained undetermined, a major ingredient in which claim was an assertion that effectively she would never be able to obtain suitable employment again.
(c)The plaintiff was loose with the truth at times when to be truthful was perceived by her as having a possibly adverse impact upon the quantum of damages which might be assessed.
Immediately following her accident, the plaintiff complained of pain and restrictive movement in the neck and headaches. Her general practitioner, Dr Foley, prescribed pain killers and the wearing of a soft collar. The pain developed in the base of the neck and radiated into the right shoulder down to the right elbow. The plaintiff underwent physiotherapy, and in particular strengthening exercises, although she said that this did not assist her shoulder a great deal. In October 1987 she found that her shoulder was cracking on movement of the arm, causing a grabbing pain. She said that she could not lift her arm up above the shoulder and could not stretch it forward. She initially saw Mr Bye on 19 October 1987 when he found her to have anterior clunk over her right shoulder rotator cuff, particularly with adduction. An x–ray of her shoulder showed no abnormality. In December 1987 Mr Bye performed an examination of the right shoulder under anaesthesia and an arthroscopy, which was limited to the subacromial space due to the plaintiff's obesity. The subacromial space was found to be somewhat inflamed. Anti–inflammatory agents and physiotherapy were prescribed. Mr Bye again examined the plaintiff on 6 January 1989 when an examination showed her clunk to be more definitely related to the right acrimioclavicular joint. He suggested to her that she have an excision of the right clavicular joint, to which the plaintiff agreed. As a result, in May 1989, Mr Bye performed a right acromioclavicular joint decompression. This has left the plaintiff with an ugly scar at the top of her right shoulder. Generally I accept the evidence of the plaintiff as to her right shoulder condition up to the time that Mr Bye performed this procedure. The only reservation I make is that I am of the view that the plaintiff exaggerated the extent to which that condition affected her ability to perform her duties at Cadbury's. Up until that time the condition was not disabling, at least to the extent that it did not prevent the plaintiff from following her usual employment, albeit with some adjustment in her duties to accommodate the pain which she undoubtedly suffered from time to time.
However, I have less confidence in the plaintiff's evidence as to her shoulder condition at times subsequent to this procedure having been carried out. The extent of any present disability in the shoulder largely is to be measured by reference to what the plaintiff herself said were her present symptoms. An orthopaedic surgeon, Mr Browne, did not consider that the plaintiff now has any measurable impairment of function in the right shoulder. Ever since her accident, the plaintiff has undergone physiotherapy to a marked degree. Whenever the plaintiff has suffered from pain in the shoulder or knee, she has resorted to extensive programmes of physiotherapy. During 1991 that physiotherapy has continued, but almost exclusively in relation to the left knee. That is indicative of the plaintiff subjectively not feeling the need for treatment to the shoulder and points to the symptoms therein being minimal.
During the course of examination–in–chief, Mr Bye was asked to express his views as to the current effect of the plaintiff's right shoulder condition on her ability to perform the tasks required of her in the course of her employment at Cadbury's. The following exchanges occurred:
"QMr Bye, in relation to Mrs Jones' right shoulder disability are you of the opinion that that's permanent or will it improve or deteriorate?
AI think its – well, if she can improve her posture, and she tends to maintain a poor posture, but if she can improve her posture somewhat, the I think she'll gradually improve the muscle control of that shoulder, then I think that over a 4 or 5 year sort of time span she'll gradually have less ache though she will have ache in her shoulder. In the short term nothing – I don't think any single thing that anyone could do is going to make any big difference to it, but it's just going to be a gradual improvement the better she uses it and the more she uses it. Obviously if she overuses it then she'll get a lot of inflammation in that space that I've looked into and that then causes pain which causes the muscles to get weak and you get a downhill snowball. If you can quietly do things without causing pain then the muscles are gradually improved, the posture will improve, so I would hope that she would be better. I don't – I can't imagine that she's going to have a shoulder that will play a hard game of tennis but I could imagine that she'll have a shoulder where she'll be able to do most things, within reason.
QRight. Well I refer to my previous question concerning her employment at Cadbury's and the type of duties which she was performing there, do you foresee any prospect that she'll return to Cadbury's to perform those type of duties?
AI'd be quite confident that she couldn't do that now. I'd have no doubts about that unless it was very specific light duties, custom made virtually for her. If she can go 3, 4, and 5 years without a lot of pain with improving her posture and muscle tone then I could imagine she might be able to work part–time out there. I can't – I can't – but to prophesise what that shoulder is going to do in 5 years I think is a fairly pointless sort of estimate really, but as she's going at the moment she's not going as well as one would like.
QWell at the moment what specific duties would prevent her from, say, obtaining employment at Cadbury's?
AOh, the speed that they have to work at. I mean even if she was able to support her elbow so that she didn't have much on her shoulder and she was just picking up the bad chocolates as they were passed, I think that – doing that all day at the rate that those people work I think that would set up this inflammation that goes on in her shoulder and I think she'd last a very short time just doing that now."
In cross–examination, the following exchanges took place:
"QPutting aside the immediate post–operative period obviously when there was associated soreness with the operation and so on, would it be fair to say that there has been some improvement in the overall function of the shoulder as a result of that operation you performed?
AFrom talking to her I feel yes. The fact that she was able to use the crutches when I operated on the left knee I think is indicative that the shoulder had something going for it.
QWell would it be fair to say that as a result of that operation she would not be restricted to any greater extent than she was able to undertake, from a physical point of view, than what she was before the operation? In other words the operation, or the effect of the operation hasn't restricted her ability to undertake physical activities to any greater extent than prior to the operation?
AI would like to think – well no, I would like to think in the long term, because the mechanics of the shoulder has been improved that she will be able to do more at five, six years post–op than she could before the operation, the operation being done for pain. In the interim she has to regain some muscle power and control of that shoulder girdle, which muscle power and control she'd been losing pre–op because of the pain and to some extent, which would be worse than by my operation, involves an assault on the shoulder itself.
QI understand.
ASo that – and given that you've got poor muscle power before the operation it is going to take a long time for that to develop when you've got someone who maintains poor posture anyway.
QImmediately prior to the operation there had been a lessening of the muscle power in the shoulder?
AMm.
QAnd then the operation?
AAnd then I would hope a gradual improvement of muscle power over a five or six year period.
QSo over what period would you expect that muscle power to regain its pre–accident – sorry, its pre–operation status?
AA bit difficult to figure out – I mean a couple of years. It depends on her and what she asks of her shoulder and what she does, but I guess a year or two or three afterwards.
QBy now you would have expected her to have regained the same muscle power that she had before the operation?
AThat's not an unreasonable – it is not an unreasonable thing to say, no. That's reasonable.
QSo from this point in time at least she would be able to undertake the same physical activities, with the same degree of –
AShe might be able, or she could, yes.
QAs she could prior to the operation?
APerhaps she could."
Mr Bye's evidence needs to be considered in the context of the plaintiff's evidence as to the nature of the tasks which she in fact performed at Cadbury's after her accident and her present apparent desire to resume employment at Cadbury's so soon as her damages claim is finalised. As to the former, immediately after her accident, the plaintiff was performing the functions of a check weigher which required less physical exertion involving the arms than other tasks. Nevertheless, it is clear from her evidence that quite quickly she resumed performing all tasks which she had performed prior to her accident. She claimed that she encountered difficulties in the performance of those tasks. She exaggerated those difficulties. Mr Bye's opinion as to the present extent of that disability is significantly dependent upon what the plaintiff has told him from time to time. Even on that basis he was rather tentative as to whether the plaintiff could or could not now make such use of her shoulder as she had been able to make prior to her accident. The plaintiff has not persuaded me that her decision not to return to work after the birth of her second child was as the result of any then existing symptoms in her right shoulder. I accept that for some period after the shoulder surgery in May 1989 the plaintiff was disabled by her shoulder condition to the extent that it would have prevented her from doing the work which she had formerly performed at Cadbury's. I would assess that period as being no more than two years, although in any event the plaintiff would not have worked for part of that period because of the birth of her second child.
I turn to the injuries to the plaintiff's knees. I accept that the plaintiff's knees came into violent contact with part of the interior of the plaintiff's motor car as a result of the accident. In so far as the injury to the right knee is concerned, it is not suggested that that has been productive of any inability on the part of the plaintiff to earn income. A small cyst developed on that knee. That cyst was painful if pressed. It was removed by the plaintiff's general practitioner. I accept that there may have been some pain to the right knee, but in the overall picture, the condition of that knee is of little significance. More important is the left knee. The plaintiff gave evidence that shortly after the accident that knee started to crack when it was bent and that it was very swollen and painful. She consulted an orthopaedic surgeon, Mr Turner, principally as to the left knee, several days after the accident. On 29 July 1987 Mr Turner performed an arthroscopy. The plaintiff had little to say as to the condition in the left knee for the period of some years after that procedure was performed. She said that in April 1990, after the left knee had kept giving way and gradually getting worse, she sought further specialist medical advice. This was obtained from Mr Bye, who, in June 1990, performed a left knee arthroscopy. In January 1991 he performed a left knee patella stabilisation, and in March 1991 a manipulation of the left knee. In January 1991 Mr Bye expressed the view that once the plaintiff's patella problem stabilised over a period of some six to nine months post–reduction, then she should be able to return to some light duties. The critical question is whether the plaintiff's long term problems with the left knee can be said to be causally related to the injuries which she sustained in the accident. The plaintiff had had problems with her left knee prior to her accident. On 23 December 1986, Mr Turner performed a left knee arthroscopy on the plaintiff. He then observed that she suffered from grade 4 chrondromalacia of her patella and he performed a chrondoplasty, a procedure whereby the rough articular surfaces were smoothed. It is not a curative measure, but one which can be expected to provide temporary symptomatic improvement. On 30 July 1987 Mr Turner performed a further arthroscopy on the plaintiff's left knee. He noted what he described as grade 3–4 chrondromalacia of the articular surface of the patella. He said that the chrondromalacia was marginally less worse than it had been prior to surgery in December 1986. Mr Turner's opinion was that without the trauma of the accident, the plaintiff's knee would, in any event, have deteriorated, although particular trauma might have accelerated the process. He expressed the opinion that his clinical observations in July 1987 suggested that the impact had not been particularly severe. Mr Turner's final conclusions were expressed as follows:
"AWell based on my observations of her knee, and – clinically and arthroscopically, I thought that she had been symptomatically made worse for a period of time, generously put at six months, and I didn't believe that there had been any objective change in the pathology in her knee as a result of the accident or any alteration in the likely end result, if you like, of her knee pathology.
QYes thank you. And at the expiration of that period that you've generously placed at six months, any symptoms persisting beyond that period would be related to what, in your opinion?
AThe pathology that was present before the accident occurred."
I accept Mr Turner's opinions. Those opinions are not inconsistent with those expressed by the other orthopaedic surgeons who gave evidence. Those surgeons acknowledged that having carried out arthroscopies on the left knee not long before and not long after the accident, Mr Turner would be in the best position to express opinions on the effect of the accident on the pathology of the left knee. It follows that in so far as the plaintiff's inability to work at Cadbury's after the expiration of her period of accouchement leave may be said to have been caused by her left knee condition, I am not persuaded that that inability is causally related to the defendant's negligence.
The plaintiff's claim for damages based upon a loss of earning capacity, both past and future, is to be considered in the light of these findings. It is common ground that from the date of her accident until May 1989 the plaintiff lost net wages of $1,238.38 in respect of absences from work. Those absences were to enable her to undergo medical procedures or obtain medical treatment. I am persuaded that those procedures and that treatment were reasonably required as a result of the injuries which the plaintiff sustained in the accident. Whilst the plaintiff was disabled by her shoulder condition for some time after undergoing shoulder surgery in May 1989 the plaintiff is not to be compensated upon the basis that she would have returned to work were it not that the surgery had disabled her. The plaintiff also suffered from a disabling condition in the left knee which was not causally related to her accident. The plaintiff was no longer cohabiting with her husband and as a result receiving a social security allowance which may have reduced her incentive to obtain employment. The plaintiff had the care of her two young children, the younger of whom was born in September 1989. At best it can be said that the plaintiff lost some earning capacity in the aftermath of the shoulder surgery which she might have utilized to some extent had she not been disabled by reason of her shoulder condition. I do not consider that the loss is great. I make some allowance for the pre–trial period after May 1989. Taking into account that allowance and the loss of earnings up until May 1989, I tentatively attribute $2,500.00 to the plaintiff's past loss of earning capacity.
I am not persuaded that the plaintiff has established that she suffered any substantial loss of future earning capacity causally related to the defendant's negligence. If there has been a significant loss then it arises out of the plaintiff's left knee condition which in turn is not the result of the plaintiff's accident. At best, it might be said that she suffers some slight disability in the right shoulder and that that disability may affect her position on the labour market in the future. Some allowance must be made for this but in the circumstances it should be very modest. I tentatively attribute $7,500.00 to the plaintiff's loss of future earning capacity.
The plaintiff may require some physiotherapy and some medical attention in so far as her right shoulder is concerned, although these are not likely to be significant items. Her current medical treatment and physiotherapy is largely related to her left knee. I tentatively attribute the sum of $500.00 as representing the cost of future physiotherapy and medical attention. Similar comments may be made in relation to the future need for analgesics. Again, these will largely relate to the knee condition. I tentatively attribute the sum of $250.00 to this item.
I turn to the plaintiff's claim for general damages in so far as it relates to matters of a non–economic nature. I accept that the plaintiff suffered some degree of pain and discomfort particularly during the early months after her accident and in connection with the various relevant medical, surgical and other procedures carried out. The plaintiff has a scar on the left knee as the result of the arthroscopy performed soon after the accident, although it was agreed that to some extent that scar was in the same position as a pre–accident scar which was the result of the arthroscopy carried out in December 1986. The scar is not of a disfiguring nature. More significant is the scar on the shoulder. It is particularly unattractive and I accept does cause some discomfort from time to time. At least for periods of some months after the accident and after the shoulder surgery, the plaintiff had difficulty in adequately performing various domestic duties, particularly tasks such as vacuuming, hanging out washing and ironing. I accept that the plaintiff has suffered, and occasionally continues to suffer, from headaches. I consider a sum of about $15,000.00 as being appropriate under this head.
Rounding off the various sums which I have tentatively attributed to the various ingredients of general damages, I assess the plaintiff's general damages at $26,000.00.
I turn to the plaintiff's special damages. The Motor Accidents Insurance Board has paid the sum of $13,022.84 for past medical and hospital expenses and it is agreed between the parties that the whole of that amount is recoverable by way of special damages. The plaintiff has paid a further sum of $70.00 by way of fees to St. Helen's hospital and the defendant admits that that amount is payable by way of special damages. The plaintiff claims the sum of $30.00 for hospital fees paid in June 1990. That related to an admission for an arthroscopy of the left knee in circumstances where I am not satisfied that it was causally related to the accident. This amount will not be allowed. The total amount allowed by way of special damages for medical and hospital expenses is $13,092.84.
The plaintiff has incurred travelling expenses in seeing a physiotherapist, Mr Albert Poon, on a large number of occasions. I am satisfied that those visits were reasonable, but I am not satisfied that in so far as those visits were to obtain physiotherapy treatment to the left knee after the expiration of six months from the date of the accident the costs of travelling are recoverable. There are also claims for travelling expenses to see Dr Foley, Mr Bye, Mr Turner, Mr Browne, Mr Clements, Mr Mills and Miss Halliday and to various hospitals. Doing the best I can with the material I have, I allow $700.00 under this head. There must be set off against the damages recoverable by the plaintiff payments made by the Motor Accidents Insurance Board totalling $25,306.03, represented by the sum of $13,022.84, to which I have referred, and the sum of $12,283.19 paid to the plaintiff by way of disability allowance.
In summary the plaintiff is entitled to the following:
General damages 26,000.00
Special damages:
Medical and hospital expenses 13,092.84
Travelling expenses 700.00
$39,792.84
Less payments by Motor Accidents
Insurance Board 25,306.03
$14,486.81
There will be judgment for the plaintiff against the defendant in the sum of $14,486.81.
0
0
0