Joyce McWhinnie v Bruce McWhinnie
[2003] ACTSC 107
•12 December 2003
JOYCE MCWHINNIE v BRUCE MCWHINNIE
[2003] ACTSC 107 (12 December 2003)
DAMAGES – personal injury – soft tissue injuries to leg and neck – no issue of principle
No SC 257 of 2002
Coram: Master Harper
Supreme Court of the ACT
Date: 12 December 2003
IN THE SUPREME COURT OF THE )
) No SC 257 of 2002
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JOYCE MCWHINNIE
Plaintiff
AND:BRUCE MCWHINNIE
Defendant
ORDER
Coram: Master Harper
Date: 12 December 2003
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $64,923.10.
The plaintiff was injured in a motor accident at Wanniassa on 3 August 2000. She was a passenger in a vehicle driven by her husband, which collided with the rear of another vehicle at an intersection. The plaintiff was sitting behind her husband: her daughter was in the front passenger seat. The plaintiff’s evidence was that on impact, the driver’s seat appeared to give way, and came back and struck her on the shin of the left leg. She also injured her left index finger, though she was not entirely sure of the mechanism of injury. Liability is admitted.
The plaintiff was born on 23 September 1951, and was aged 48 at the time of the accident. She is now 52. She lives at Wagga Wagga with her husband. They have four married children and a number of grandchildren. Her literacy skills are poor and she has never been in the workforce. She relies on a disability support pension, and had done so for some years prior to the accident.
The accident scene was attended by ambulance staff who recorded a soft tissue injury to the left tibia and a complaint of pain and contusion of the left index finger. Good movement in all limbs was noted, with no complaint of loss of consciousness or of back or neck pain. The plaintiff was taken by ambulance to the Canberra Hospital, where a precautionary x-ray confirmed that there was no fracture of the left tibia or fibula. She was given Panadol for pain relief, and sent home on crutches.
The next day she saw Dr John Broderick, a general practitioner at Erindale Immediate Health Care, for advice as to whether she was fit for the car trip home. Dr Broderick thought she was, but suggested frequent breaks in the journey so that she could get out of the car and walk about.
On 9 August 2000, the plaintiff visited her usual general practitioner, Dr McCorkindale, at the Fernleigh Medical Centre at Wagga. He thought she had a soft tissue injury to the left shin, in the form of a periosteal contusion, and prescribed ice and analgesia. The plaintiff’s evidence is that she and her husband spent three days at her daughter’s home in Canberra before arrangements were made through insurance channels for a rented car for them to return to Wagga. During these three days, she developed pain in the upper back and shoulders and headaches, which persisted after she got home. She found that she could not rotate her neck in either direction without pain. Dr McCorkindale does not mention any complaint about headache or neck, back or shoulder complaints by the plaintiff during the consultation on 9 August 2000.
On 14 September 2000, the plaintiff consulted Dr Bell, a general practitioner then with Dr McCorkindale’s practice, who has since commenced her own practice and who still has the plaintiff as a patient. She complained to Dr Bell of headaches which, she said, had started around the time of the motor vehicle accident. She saw Dr Bell on three further occasions during September, and the doctor concluded that the accident had caused an exacerbation of pain due to pre-existing cervical osteoarthritis. The plaintiff was prescribed painkillers and anti-inflammatory medication.
Dr McCorkindale saw the plaintiff again on 27 November 2000, when she complained of aching in the lower left leg, which gave way under her from time to time. Dr McCorkindale reassured her that the leg pain would settle with time. He thought that the plaintiff would make a full recovery from her injuries, probably within about four months.
The plaintiff’s evidence is that she continues to suffer from headaches, neck and back pain, and pain in the left leg. She says she has pain in the lower back, which commenced at about the beginning of 2003. She denies any low back pain between the accident and that onset. She says that the headaches and neck pain restrict her capacity to perform her usual housework, and to play with her grandchildren. She also gave evidence that she has had paid home help, costing her about $12.50 per week, since the accident. She was asked whether she did all the housework before she had this home help, and said that she had always done it all herself.
A letter from the Service Coordinator, Wiradjuri Branch, Home Care Service of NSW, confirms that the service provides the plaintiff with two hours domestic assistance per week, the tasks being vacuuming and washing of floors, cleaning of bathrooms and toilets, hanging out, bringing in and folding washing, dusting of furniture and lawn mowing. The letter states that the service commenced on 4 July 2002, that is to say, some two years after the accident.
10. The plaintiff said that she continued to see Dr Bell for prescription of medication when required. She said that she had developed diabetes since the accident and also high blood pressure.
11. The plaintiff’s evidence in chief was that prior to the accident, she was in good health. The only pre-accident medical problem she conceded was a hysterectomy in 1988. She admitted in cross-examination that she could have had headaches before the accident. It appears from copies of handwritten notes produced on subpoena by Dr McCorkindale’s practice that the plaintiff went to the surgery on 9 November 1983 complaining of tight neck muscles; on 6 April 1984 complaining of headaches and a tight feeling behind the eyes; on 29 October 1984 complaining of severe headaches; on 27 February 1985 complaining of headaches; on 12 October 1991 complaining of neck pain and headache; on 24 August 1992 complaining of headaches; on 12 March 1996 complaining of a pain in the left side of the head; on 21 April 1997 complaining of painful neck movement and headache; on 20 November 1997 complaining of sharp pains in the right side of the head; and on 6 May 1999 complaining of migraine. When this was put to the plaintiff in cross-examination, her answer was generally that she could not remember, or words to similar effect.
12. The notes included references to visits by the plaintiff to the surgery with complaints relating to her left leg: on 26 June 1984, complaining of pain on the left side of the back extending down into the left leg; on 3 August 1984, of pain in the left shin and leg; on 21 December 1994 complaining of aching and locking in the left leg and giving way of the left knee; on 9 January 1997, complaining of pain in the left shin; on 5 August 1998 complaining of cramps in the left leg; and on 8 November 1999, complaining of a painful left knee. The plaintiff agreed that some of these notes were accurate but in other cases was unable to remember.
13. She agreed that she had applied for a disability support pension after her children left home. It appears that this was in 1995, although the plaintiff could not recall the exact year. She denied that she had complained of chronic anxiety and of low back pain made worse with heavy work. It is clear from the notes that on 7 June 1995, the plaintiff attended the surgery seeking a disability pension of the basis of her poor education, anxiety and low back pain. On 26 June 1995, a disability pension form was signed by the general practitioner referring to chronic anxiety, poor education and low back pain.
14. The notes also disclosed visits to the surgery by the plaintiff on 5 January 1984 with complaints of tension symptoms; on 23 November 1987 with stress problems; on 7 June 1995 with chronic anxiety; on 16 February 1996 with emotion tearfulness and on 14 June 2000 with depression. Again, the plaintiff did not remember these consultations.
15. The plaintiff had an x-ray of the lumbosacral spine on 15 June 1995, some five years before the accident, on referral by Dr McCorkindale, which revealed degenerative changes of slight to moderate degree. I note that this x-ray was taken between the dates of the two consultations in relation to the plaintiff’s application for a disability support pension.
16. She was referred on 11 April 2000, about four months before the accident, for an x-ray of the left knee which was suggestive of early osteoarthritic changes within the joint.
17. On 22 March 2001, the plaintiff went back to see Dr Broderick, the general practitioner she had seen the day after the accident in Canberra. It appears that this appointment may have been arranged by the defendant’s insurer for the purpose of a report, although this would be somewhat unusual considering that Dr Broderick was a treating doctor. In any event, Dr Broderick records a complaint of continuing pain in the lower left leg, which he attributed to a resolving sub-periosteal haematoma. The plaintiff also complained of frequent generalised headaches, which Dr Broderick thought might or might not have been related to the motor vehicle accident. He understood from the history she gave that her housework duties were unaltered. He thought that the plaintiff should make a full recovery from her injuries, although her reported apprehension about getting into cars and driving could persist for some time.
18. The plaintiff’s solicitors qualified a number of specialists as expert witnesses in the plaintiff’s case. Dr Brooder, a neurologist practicing at Albury, saw the plaintiff in September 2001 and June 2002. He prepared two reports and gave oral evidence. On the history he was given, he related the plaintiff’s neck pain and headaches to the motor vehicle accident. He thought that her symptoms would respond to physiotherapy combined with painkillers and anti-inflammatory medication. He thought that her long term prognosis was reasonably favourable, and that her symptoms would progressively improve. She might continue to suffer from neck pain and headaches intermittently. On clinical examination, he did not note any apparent functional disability. At his second appointment with the plaintiff, she complained of a general deterioration in the severity of her symptoms, but Dr Brooder remained of the view that her long term prognosis was reasonably favourable. He agreed in cross-examination that he was reliant on the plaintiff’s subjective reporting of her symptoms. The material emerging from the general practitioner’s notes amounted to a somewhat different history. He concluded that it could reasonably be assumed that the motor vehicle impact caused aggravations to pre-existing degenerative changes resulting in an increase in neck pain and more frequent headaches than before the accident.
19. Dr Benanzio, orthopaedic surgeon, saw the plaintiff in June 2002. He provided a written report and gave oral evidence. He related the left shin symptoms to a superficial cutaneous nerve lesion, requiring no treatment. He thought that the accident had caused a cervical strain which acted on pre-existing but asymptomatic degenerative changes, precipitating symptoms. Dr Benanzio was initially given a history that the plaintiff was taken by ambulance to the Canberra Hospital complaining of headache and neck ache as well as pain and bruising in the right shin. Dealing with the question of causal connection between the accident and the headaches and neck symptoms, Dr Benanzio took the view that a complaint of pain immediately after the accident would establish the causal link, whereas symptoms occurring for the first time three weeks after the accident he would not regard as directly caused by the accident. He would describe this as a recurring condition which had already happened before. As to prognosis, his view was that if one accepted the plaintiff’s complaints of headaches and neck pain continuing for some three years since the motor accident, the probability was that those symptoms would continue indefinitely, rather than settle into remission.
20. Dr Gertler, a psychiatrist in Sydney, saw the plaintiff at the request of her solicitors in June 2002. From the history he was given, he diagnosed a mild adjustment disorder, with anxious mood, possibly accompanied by a post-concussional syndrome. That latter, I think, can be excluded by the lack of any evidence of a head injury at the time of the accident. The plaintiff conceded to Dr Gertler that she had always been somewhat anxious, but said that this had become much worse since the accident. Dr Gertler did not have a history of the plaintiff’s pre-accident attendances on her general practitioner with complaints of anxiety and depression.
21. The solicitors for the plaintiff also referred her to Ms White, an occupational therapist in Wagga Wagga, who provided a written report and gave oral evidence. I think that her assessment of the plaintiff’s condition was a little more pessimistic than the reality.
22. Counsel for the plaintiff tendered two reports by Dr Huntsdale, a Sydney orthopaedic surgeon, which had been commissioned by the solicitors for the defendant but not tendered in the defendant’s case. Dr Huntsdale saw the plaintiff in August 2002. He was told by the plaintiff that her health had been satisfactory before the accident. He accepted that her major disabilities were low back pain and headaches, and formed the view that these had been caused by the motor vehicle accident, and that her prognosis was guarded. He thought that her neck had largely settled.
23. Following his written report, Dr Huntsdale was provided with copies of the clinical notes and x-ray reports, and made further written comments. On seeing the pre-accident notes and the x-rays, he remarked that the plaintiff seemed anxious to attribute all her symptoms to the motor vehicle accident, but he did not believe that he had seen anything in the material to change his overall opinion, except that the plaintiff was “less than forthcoming” about whether she had had any back pain before the accident. His conclusion was that the plaintiff’s injuries were soft tissue in nature and should not cause any long-term disability.
24. Counsel for the defendant tendered a videotape of surveillance of the front of the plaintiff’s home in Wagga Wagga, taken in December 2002. The film showed the plaintiff helping her son to hang up Christmas lights along the eaves of the house for a period approaching two hours, bending from the waist to pick up hammers and lights from the ground, holding a ladder and passing things to her son above shoulder height. She was also shown wheeling a garbage bin, although this appeared to be empty. At one point the hammer was seen to fall from the top of the ladder and strike the plaintiff’s son on the head, and she took some time providing first aid. She was also shown sweeping the front porch, banging the front doormat against a verandah post, and tearing up a corrugated cardboard carton into pieces and placing it in a bin. The plaintiff was not seen to engage in any particularly strenuous activity, certainly nothing which could be described as heavy work, but she did not exhibit any symptoms suggestive of neck, low back or left leg pain or restriction of movement.
25. I am satisfied that the motor vehicle impact was a reasonably severe one, and that the plaintiff suffered an injury to her left shin and left index finger which resulted in immediate pain. The finger recovered over a period of days. The plaintiff had had previous problems with her left knee and left shin, and these may have predisposed her to a worse outcome from this injury. I think that she had immediate pain in the left shin but that over time she has been left with an area of numbness which is permanent and untreatable, but which does not contribute to pain or restriction of movement in the leg, or other symptoms.
26. It appears that the plaintiff was not immediately aware of neck or shoulder symptoms, but I accept that these developed over the weeks after the accident, reaching a point by 14 September, some six weeks after the accident, where it was clear that the symptoms were not merely transient and that some treatment was required. There is no evidence of any other traumatic incident which might have triggered these symptoms between 3 August and 14 September 2000, and it seems to me that the most likely explanation is that the symptoms were due to a soft tissue injury to the neck occasioned at the time of impact. Whilst the time period might be a little longer than would enable Dr Benanzio to infer direct causation within the medical sense of that expression, I am satisfied that the neck symptoms were caused by the accident for the purposes of the present action. I am also satisfied that the neck injury caused the plaintiff to suffer from headaches. She had experienced bouts of neck pain and headaches at times before the accident, but irregularly at intervals over a period of years, and I accept that the neck pain and headaches since the accident have been much more frequent and intense, though probably not constant.
27. I also accept that the plaintiff now suffers from debilitating back pain which interferes with many of her activities, but I am not satisfied that there is any causal link between the motor accident and the low back pain. The plaintiff’s evidence is that her present symptoms did not appear until the beginning of 2003. The plaintiff was a poor historian with a poor memory for dates and periods of time, and I think it more likely that the low back pain had emerged by mid-2002 when the home care service domestic assistance commenced. The tasks in relation to which the plaintiff receives that assistance appear to me more likely to be impaired by low back pain than by headaches and neck pain.
28. Although the plaintiff was generally doing her best to give her evidence honestly, I accept the criticism that she had a tendency to blame all of her problems on the motor vehicle accident, and to minimise her pre-accident medical problems.
29. A post-accident x-ray of the cervical spine (22 September 2000), ordered by Dr Bell when investigating the plaintiff’s complaint of headaches, revealed osteoarthritic changes from C4 to C6, probably consistent with the aging process rather than indicative of any trauma. The injury has caused symptoms in the neck well before they would otherwise have occurred, and the plaintiff’s age and the condition of her neck make it unlikely that spontaneous recovery can be expected. I think it likely that the plaintiff will continue with pain and restriction of movement in the neck, and consequent headaches, indefinitely. When considered in combination with the unrelated disabilities caused by the condition of her lumbar spine, her quality of life will be considerably affected.
30. It seems to me that an appropriate figure to compensate the plaintiff for the pain and suffering and loss of enjoyment of life flowing from her injuries is $55,000, which I apportion as to $20,000 for the past and $35,000 for the future. By way of interest on the past component I award $1,500. Treatment and other out of pocket expenses are agreed at $423.10. This figure is not necessarily reflective of the severity of the injuries: the plaintiff has access to various subsidised services as a disability support pensioner and through her aboriginal background.
31. She has a need for continuing treatment by her general practitioner, and for painkiller and anti-inflammatory medication. For future treatment expenses I allow $3000.
32. There is no claim for loss of earnings or loss of earning capacity. I am satisfied that the plaintiff had a need for domestic assistance following the accident, which was filled by her husband and daughter though not on a regular basis, so that damages under this head are not capable of precise calculation. I propose to adopt a figure of $15 per hour and to allow $5,000 for the past including interest. I am not satisfied that the evidence justifies any allowance for the future: the assistance received by the plaintiff in my view relates to her low back disabilities and is unconnected to the accident.
33. The individual components are as follows:
General damages $55,000.00
Interest thereon $1,500.00
Treatment expenses (past) $423.10
Treatment expenses (future) $3,000.00
Griffiths v Kerkemeyer $5,000.00
Total $64,923.10
34. The total appears to me proportionate to the injuries suffered by the plaintiff in the motor vehicle accident. Accordingly there will be judgment for the plaintiff in the sum of $64,923.10. I shall hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.
Associate:
Date: 12 December 2003
Counsel for the plaintiff Mr F M G Parker
Solicitor for the plaintiff Commins Hendriks
Counsel for the defendant Ms D Fitzsimons
Solicitor for the defendant Phillips Fox
Date of hearing 7, 8 July 2003
Date of decision 12 December 2003
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