Kaufman v Kozak
[2012] ACTSC 78
•May 29, 2012
KYLIE TRICIA KAUFMAN v WAYNE KOZAK
[2012] ACTSC 78 (29 May 2012)
PERSONAL INJURY – negligence – contributory negligence – assessment of damages – extent of injury – ongoing pain and disability – pre-accident medical history – credit of plaintiff – plaintiff employed as insurance claims officer
Court Procedures Rules 2006
No. SC 512 of 2008
Judge: Sidis AJ
Supreme Court of the ACT
Date: 29 May 2012
IN THE SUPREME COURT OF THE )
) No. SC 512 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:KYLIE TRICIA KAUFMAN
Plaintiff
AND:WAYNE KOZAK
Defendant
ORDER
Judge: Sidis AJ
Date: 29 May 2012
Place: Canberra
THE COURT ORDERS THAT:
(a)judgment be entered for the plaintiff in the sum of $40,600.00
(b)the defendant pay the plaintiff’s costs of the proceedings. This order is suspended for a period of 14 days to allow either party to list the matter for further argument on the issue of costs.
(c)the exhibits are to be retained for 28 days.
Mrs Kylie Kaufman claimed damages for injuries suffered in a motor vehicle accident that occurred on 5 June 2007 when the Triton utility driven by Mr Wayne Kozac ran into the rear of her Subaru station wagon at the intersection of Coulter Drive and Belconnen Way in the Australian Capital Territory.
The issues were:
(a)The extent of any negligence of the defendant and of any contributory negligence of the plaintiff;
(b)The extent of the injuries suffered by the plaintiff in the accident;
(c)The extent to which any injury suffered by the plaintiff in the accident caused or contributed to her ongoing pain and disability;
(d)The compensation, if any, to be awarded to the plaintiff for general damages, loss of income earning capacity, out of pocket expenses and domestic care.
Liability and contributory negligence
At the conclusion of the evidence the defendant conceded that he breached his duty of care. He pressed his claim that there was contributory negligence on the part of the plaintiff.
The circumstances in which the accident occurred were not in issue. The plaintiff was immediately ahead of the defendant in a line of vehicles turning left in a slipway from Coulter Drive onto Belconnen Way. The plaintiff reached the head of the line and moved her car forward. She stopped when she saw a vehicle approaching on Belconnen Way through the intersection to her right. This vehicle was in the traffic lane closest to the centre of the road and not in the lane into which the plaintiff was intending to turn.
Nevertheless the plaintiff was unsure of the intentions of the driver of that vehicle and she stopped. The defendant then ran into the rear of her car.
The defendant claimed that the plaintiff was negligent in stopping and failing to take account of the expectation of the drivers of following vehicles that she would continue to drive into Belconnen Way. The defendant was aware of the vehicle that was approaching from the right in Belconnen Way. He said there was no reason for the plaintiff to stop to allow it to pass.
I rejected the claim of contributory negligence for the following reasons:
(a)I considered that there was no negligence in the plaintiff’s precautionary approach to proceeding onto Belconnen Way;
(b)On the defendant’s evidence, the distance between the defendant’s vehicle and that of the plaintiff at the time she approached the intersection was more than adequate to allow him to bring his vehicle to a halt;
(c)On the defendant’s evidence, his speed was somewhere between one and five kilometres per hour. I considered that this speed was sufficiently slow to allow him to bring his vehicle to a halt.
It was very apparent that the sole cause of the accident was the defendant’s failure to respond to the plaintiff’s action in stopping her car when he had more than adequate opportunity to do so.
The extent of the plaintiff’s injuries
Although the accident occurred at relatively low speed the plaintiff claimed that the impact with her car was significant. Photographs of the station wagon taken after the accident indicated that its rear window was completely smashed and the rear panel of the door below the window was damaged. The defendant attributed the extensive damage to the station wagon to the bull bar on the front of the Triton utility.
The plaintiff said she was thrown around in the car as a result of the impact but that no part of her body came into contact with any part of the car as a result of the crash.
She claimed that she suffered the following injuries:
(a)whiplash injury to the neck;
(b)injury to lower back causing spondylosis at C4/5 and internal disc disruption at L5/S1;
(c)aggravation of pre-existing arthritis in acromioclavicular joint of the left shoulder;
(d)aggravation of pre-existing injury to sacroiliac joint;
(e)aggravation of chronic neck injury;
(f)injury to right shoulder;
(g)injury to right wrist;
(h)shock.
The plaintiff was treated after the accident by a number of specialists. She did not press her claim that ongoing pain and discomfort in her neck, shoulders, right sacroiliac joint and wrist were the result of the accident. She said the aggravation of pain in these areas resolved within months to their pre-accident levels. She maintained her claims that the accident caused injury to her low back and depression to the point where she was so significantly disabled that she was totally incapacitated for employment.
The plaintiff’s claim was complicated by two factors:
(a)Her extensive pre-accident medical history; and
(b)Her knowledge of the requirements for third party claims acquired in the course of her employment up to the date of the accident as a claims officer with NRMA.
These factors led the defendant to submit that the plaintiff was well versed in the way in which a claim might be pursued to a successful conclusion and that she manufactured or overstated the extent to which her current condition was the result of the accident. The defendant submitted that I should not accept that the plaintiff was a credible witness.
The plaintiff said that after the accident she felt shaken and sore and she felt immediate pain in her neck and lower back. Her husband drove her damaged car from the scene of the accident. She drove his car to her office. Her pain worsened as the day progressed. Pain in her shoulders developed at a later stage. She was upset and emotional.
Her employer sent her to Calvary Hospital in a taxi where she was prescribed Panadeine Forte and Mobic and provided with a certificate for time from work. Later the same day she consulted her general practitioner who suggested that she use a heat pack and referred her to physiotherapy.
MRI scans of the plaintiff’s cervical and lumbar spine were performed on 26 June 2007. The reasons for the scans were recorded as: Neck and lower back injury. Has been falling over. The report stated:
Minimal spondylosis at C4/5. Central and right sided disc bulge at L5/S1 without neural compromise. No other significant abnormality is seen elsewhere.
The pre-accident medical history
Neck Pain: The plaintiff had ongoing intermittent neck pain prior to the accident. She said these symptoms commenced in her early 20’s and that they affected her from time to time. At the time of the accident, neck pain was one of a number of neurological symptoms of which the plaintiff complained
She said her neck pain was aggravated by the accident but that pain in this area abated shortly after the accident.
Shoulder pain: The plaintiff suffered from long standing pain in her left shoulder. She was referred to Dr Roberts for treatment. One week prior to the accident the plaintiff’s left shoulder was injected with cortisone. A further injection was administered in April 2008. In August 2008 Dr Roberts performed left shoulder arthroscopic debridement and open excision of the distal clavicle. The plaintiff said the outcome of this surgery was successful in relieving her left shoulder pain.
Dr Roberts reported in March 2008 that the plaintiff told him that her left shoulder pain was much worse since the accident. The plaintiff denied that she told any doctor that her left shoulder problems were related to the accident. She agreed that she told doctors that the condition of her shoulder was aggravated by the accident but that she subsequently accepted that this was not so. She said she was unaware that the out of pocket expenses sought to be recovered included the cost of the shoulder surgery undertaken in August 2008.
The plaintiff said she had no particular problem with pain in her right shoulder prior to the accident. She was reminded that she told Dr Klar in November 2006 that she had pain on movement of her right shoulder and that he referred her to Dr Roberts in respect of this problem also. She said the problem in the right shoulder was limited to movement and was not constant as it had been in the left shoulder. The right shoulder was scanned and shown to be arthritic.
Migraine headaches: The plaintiff suffered for many years with migraine headaches for which she was medicated.
Knee pain: The plaintiff consulted Dr Klar from 2004 with problems in both knees. Dr Klar reported that the plaintiff informed him that she injured her left knee when playing golf in March 2004. Dr Klar performed a surgical procedure in 2005 on the left knee. He reported that the plaintiff continued to have significant pain in the left knee after this surgery.
The plaintiff fell in 2003 in the course of her employment and injured her right knee. An arthroscopy was performed on the right knee in 2007 and the symptoms in that knee continued to increase. The plaintiff complained in July 2008 that her right foot was dragging. She said she assumed that this was the result of the condition of her right knee.
It was put to the plaintiff that she attempted to bring a claim for injury to the left knee as a result of the fall in 2003. She said that she fell onto both knees but only the right knee received treatment at the time of the fall and that she only ever made claims in respect of the right knee.
In April 2005 Dr Klar responded to a request from the plaintiff’s solicitors for an opinion on whether the injury to the plaintiff’s left knee was caused by the fall in 2003. He said it was his opinion that the cause of the damage to the plaintiff’s left knee was the injury she received when playing golf.
The matter was clearly the subject of further discussion because Dr Klar reported that the plaintiff told him in October 2005 that the pain in her left knee started after the fall in September 2003. The plaintiff denied that she told Dr Klar that she wished to correct the history of injury to the left knee to relate it to the 2003 fall. She said Dr Klar initially told her that there was a relationship between the fall and the condition of her left knee but later changed his opinion and she therefore did not proceed with the claim.
The defendant submitted that this history indicated that the plaintiff intended to pursue a dishonest claim for compensation in respect of the left knee. I did not accept that this material provided evidence that the plaintiff did more than consider extending her claim to include her left knee and that in the absence of medical support for the claim she did not pursue it.
Heart defect: The plaintiff suffered from a congenital defect in her heart in the nature of a bicuspid aortic valve. She was treated for this condition by a cardiologist who advised her to avoid strenuous exercise. She said as a consequence she gained weight. She also suffered from palpitations but said that was a side effect of medication. It was not claimed that the accident affected this condition.
Neurological problems: In late 2006 the plaintiff started to suffer from a range of symptoms that affected various parts of her body. The symptoms included pain, numbness affecting the whole of her body, in particular the right leg and face, blurring of vision, shaking in the legs, tremor in the hands, muscular twitches, weakness in the right leg, nerve pains, difficulty swallowing, balance difficulties and back pain. The plaintiff was admitted to Canberra Hospital on 18 January 2007 for investigation of these symptoms. After a number of tests the plaintiff was discharged on 24 January 2007 without diagnosis. The hospital notes recorded that at the time of discharge the plaintiff was dissatisfied that her pain had not been adequately managed. She was referred to the care of the chronic pain team. These neurological problems continued up to and after the date of the accident. The plaintiff said they were exacerbated for a period and then stabilised to their pre-accident levels. She continued to experience muscle jerks and numbness affecting most of the muscles of her body. She continued to experience numbness in her hands and feet and sleep disturbance because of pain and muscle jerks.
Since the accident the plaintiff consulted Dr Joshua, rheumatologist, because her hands were swelling, she was suffering from chronic sweating and the cause of her muscle jerks remained undiagnosed. Dr Joshua referred her to Dr White who diagnosed a condition described as Syndrome X. There were no reports of Dr Joshua or Dr White in evidence.
The plaintiff also had nerve conduction tests. She said the result of these tests was a diagnosis of carpal tunnel syndrome affecting both the right and left hands.
Depression: The plaintiff said she first suffered from depression in her early 20s, although notes made during her admission to Canberra Hospital in January 2007 recorded that she attempted suicide at the age of 14. In 1996 the plaintiff suffered from some serious psychiatric problems. During her hospital admission in January 2007 she was referred to a psychiatrist who noted that she appeared not to be depressed or suffering from psychiatric illness. The clinical notes of her general practitioners recorded that in the months prior to the accident the plaintiff was suffering from depression. A note of 7 May 2007 recorded that the plaintiff was frustrated by the lack of a diagnosis for her multiple complaints, that she was depressed, lacked motivation and was not enjoying life. On 26 May 2007 the clinical notes described the plaintiff as teary and depressed and recorded that she had seen a counsellor. There was no report from the pre-accident counsellor.
Weight management: The plaintiff’s medical records described ongoing problems with weight gain. I have already noted that this was attributed to the advice that she not undertake strenuous exercise because of her heart defect. Immediately prior to the accident she was taking Reductil for weight reduction.
The claimed back injury
In November 2007 the plaintiff consulted Dr Pik, neurosurgeon, who requested a discogram to determine whether surgery was warranted for her continuing low back pain. The discogram was undertaken in February 2008. The plaintiff did not tender Dr Pik’s report following the discogram. It was tendered by the defendant as part of the material produced on subpoena by Dr Pik.
Dr Pik reported to the plaintiff’s general practitioner on 13 July 2008:
The discogram showed no pain on injection of the L3/4 disc and the L3/4 disc appeared normal. The L4/5 disc also appeared normal on injection but the patient experienced 6/10 pain on injection. A subsequent injection did not cause any pain. The L5/S1 disc was degenerate on injection and caused 8/10 pain which the patient described as identical to her usual pain.
I have explained to Kylie that although the L5/S1 disc showed a concordant pain response, I am very concerned that the injection of the normal looking L4/5 disc caused her back pain. This is highly suggestive of a poor response to surgical treatment for her low back pain. Therefore, I have not recommended any back surgery for Kylie’s symptoms at this stage.
The plaintiff sought a second opinion and consulted Dr Mobbs, neurosurgeon, who performed surgery at the L5/S1 level with interbody fusion in August 2009. As predicted by Dr Pik this surgery did not relieve the plaintiff’s low back pain.
Dr Mobbs reported that the surgery was technically successful. Dr Mobbs reported in September 2009 that the plaintiff told him that her mechanical low back pain was significantly improved but that she developed new symptoms of a deep ache in her right hip that radiated into her buttocks.
Dr Mobbs found no indications of neurological deficit and said that x-ray of the plaintiff’s lumbar spine indicated that the outcome of the surgery was the best that he might have expected. He said he was baffled by the plaintiff’s right-sided hip pain. He suggested that the pain might be caused by sacroiliitis or musculoligamentous strain in the right hip. He proposed that the plaintiff undertake physiotherapy and hydrotherapy to maintain movement of the lumbar spine and right hip joint. He wished to review the plaintiff after a further four weeks and to undertake further radiological investigation if her condition was not improved.
The plaintiff did not return to Dr Mobbs. She has not consulted any neurosurgeon since her last consultation with Dr Mobbs in September 2009.
The plaintiff produced photographs of abdominal scarring that was the result of the surgery and the gastric banding that was undertaken to allow for weight loss that was necessary before the surgery could proceed.
The plaintiff’s evidence concerning this surgery was that it took some considerable time before she felt any improvement in her low back symptoms. She said that she continued to suffer from pain through her groin and on the outside of her right leg. Her biggest problem at the time of the hearing was that she was unable to sit for lengthy periods in an upright position. She was able to sit comfortably in a recliner chair. When standing, she found it more comfortable to move her weight from foot to foot. In the course of her evidence, the plaintiff alternatively sat and stood. When she stood, she rocked gently from foot to foot.
I had a number of concerns arising from the plaintiff’s evidence that caused me to consider carefully the objective documentary materials before reaching my conclusion that I did not accept that there was a causal connection between the accident and the current condition of her low back. In reaching this conclusion I was influenced by the apparently minor nature of the forces involved in the accident itself and the medical material from both before and after the accident that did not support the plaintiff’s claims.
Although the damage to the plaintiff’s car was significant, the force of impact must necessarily have been relatively minor given that the plaintiff’s vehicle was stopped and the defendant’s vehicle was travelling at most at 5 km/h. I accept that there are occasions when apparently minor motor vehicle accidents result in major injury. In such cases the court is usually provided with evidence of an expert in ergonomics to explain how an apparently atypical injury occurred. Evidence of this nature was not available in this case.
There was clear evidence that the plaintiff suffered back pain prior to the accident. The plaintiff said she had never denied that she had back pain from time to time when she worked as a nurse for some years. She said, however, that the back pain that was recorded in the Canberra Hospital notes during her treatment in January 2007 and thereafter in the clinical notes of her general practitioners related to pain in her right hip and not where pain was experienced after the accident, namely, in the midline of her low back. The site of her pain changed again after the surgery performed by Dr Mobbs so that it was affecting the right hip, groin and the back of her right leg.
The claim that the pain for which the plaintiff was investigated at Canberra Hospital in January 2007 was located in the plaintiff’s right hip was not supported by medical records. Her general practitioner recorded on 15 January 2007 that the plaintiff suffered a Flareup of pain in knees and shoulder and Low back since return to work. The note of 24 January 2007 recorded – admitted to TCH for a week for low back pain and numbness all over body . . . The reason for contact on that date was recorded as Low back pain.
Canberra Hospital clinical notes consistently referred to back pain and not hip pain. A note dated 18 January 2007 recorded Back: sacral bony tenderness on midline no spasm evident. Another note of the same date recorded a history of four days of lower back pain. The transfer record from the hospital for MRI referred to a five day history of lower back pain. MRI scans were performed on various parts of the plaintiff’s body but not the right hip. An incidental finding on the scan of the cervical and thoracic spine was of dessication of the L5-S1 disc without significant thecal or nerve root compression. The hospital referred the plaintiff to Dr Jay Govind of the chronic pain team to deal with the plaintiff’s complaints that included ongoing lower back pain.
Asked to clarify her symptoms the plaintiff said:
It started off with right sided I call sacroiliac, you can call it lower back if you want, pain … (Transcript 65.4).
Questioned about the hospital record that the plaintiff complained of tenderness in the mid-line of her back, an area separate and distinct from the region of the right sacroiliac, the plaintiff agreed that there was tenderness in that area when it was pressed.
On 5 March 2007 the plaintiff complained to her general practitioner of a flareup of low back paid on the previous day when she bent to pick up groceries. She complained of pain down both legs, especially on the right side. She was in severe pain with her range of movement restricted in all directions by pain. The general practitioner recorded that the plaintiff was tender mainly over the right sacroiliac joint and buttock muscles. On 7 March 2007 the plaintiff telephoned her general practitioner to advise that the Oxycontin he prescribed for her back pain did not assist. The dose was increased. Complaints of continuing pain were recorded on 8 March 2007 and 26 April 2007. On 26 May 2007 the plaintiff told her general practitioner that Ostevit and Norspan, pain relieving medications prescribed earlier, were not helping with her back pain.
Shortly after the accident the plaintiff attended Calvary Hospital. She described symptoms of neck, shoulder, knee and lower back pain. The hospital notes included a prior medical history of chronic back pain.
The plaintiff maintained that the back pain referred to in all of the clinical notes was in fact right sacroiliac pain. I did not accept this. It was not credible that between December 2006 and May 2007 these practitioners recorded back pain or low back pain when the plaintiff complained of right sacroiliac pain.
A further concern was that those medical practitioners whose reports provided support for the plaintiff’s claims appeared not to have been provided with full details of her medical history.
Dr Brook, rheumatologist, reported to the plaintiff’s general practitioner on 8 March 2007 that the plaintiff complained, amongst other things, of pain high on the right sacroiliac region that was relatively localised. He said the plaintiff was quite lame due to the back pain. He noted that a bone scan undertaken at Canberra Hospital showed no sacroiliitis and he nominated local ligamentous structures as the source of her pain. He said the pain could be from facet joints or involvement of the sacroiliac joint but that in these cases it was usually more extensive. In August 2010 Dr Brook reported that the findings of local tenderness in the upper right sacroiliac region were still present and little changed since when he examined the plaintiff in 2007. He reported that the plaintiff told him that her pain was not much changed. His opinion remained that the pain was coming from local structures and clearly had not changed since 2007.
Dr Brook said that the low back pain which was the cause of the plaintiff’s disability was new since he examined the plaintiff in 2007. He said:
There was no hint of significant incapacity and indeed no hint of central low back pain when I saw her in 2007. From her description, it started after the motor vehicle accident.
On this basis he concluded that, although the degenerate disc probably predated the accident, the plaintiff did not have symptoms prior to the accident so that the accident of 5 June 2007 precipitated symptoms in an otherwise asymptomatic L5-S1 segment.
Dr Brook appeared to overlook the finding of tenderness over L5-S1 that he recorded in his first report and of the significant musculo-skeletal problems he described. He found tenderness at the same site on examination in October 2010. It was clear that he accepted the plaintiff’s statement that central low back pain commenced after the accident and that he was not provided with the full pre-accident medical history.
It was suggested that Dr Tuck, neurologist, supported the plaintiff’s claims concerning her low back condition. His report of 26 July 2007 did not deal with the extent to which her complaints of low back pain were causally related to the accident. He said that he considered it unlikely that the plaintiff suffered from an underlying neurological disorder.
One of the general practitioners who treated the plaintiff both before and after the accident, Dr Chen-Feng Lin, reported on 13 July 2011 that prior to the accident, the plaintiff had a history of chronic low back pain, left shoulder pain and right knee pain. He said that her presentation to Canberra Hospital on 18 January 2007 was for low back pain as well as other symptoms. His opinion was that the accident exacerbated the pre-existing back pain and that the surgery undertaken in August 2009 provided significant symptomatic relief that was short-lived.
Dr Lethlean reported in February 2008. He was informed that the plaintiff’s pre-existing sacroiliac pain was improving prior to the accident, exacerbated by it and, although it improved, the pain remained worse than prior to the accident. He said that the plaintiff considered that the sacroiliac pain was separate from the site of the low back pain. Dr Lethlean reported that there was no evidence of pre-existing symptoms or impairment and disability in the lumbosacral, L5-S1 disc area. On this basis he concluded that there was a new injury to the L5-S1disc, sustained for the greater part on 5 June 2007.
Dr Le Leu reported in February 2010. He reported that the plaintiff told him that she had a right sacroiliac problem that started in January 2007, the cause of which remained undiagnosed. She told him that the pain from the accident was lower down over the sacrum. His opinion was that the plaintiff’s ongoing significant and partially disabling symptoms were the result of the accident.
Dr Lim reported in September 2008. He noted that the plaintiff told him that the back pain that commenced in January 2006 and continued in January 2007 was predominantly right-sided, that she had right-sided lower back pain before the accident and that after the accident the pain was both central (midline) and right sided. Having been provided with a full medical history, Dr Lim summarised her back condition by stating that she had a significant history of lower back pain prior to the accident with predominantly right-sided pain in the months prior to the accident and earlier episodes of central lower back pain. He noted that the pain in the period immediately prior to the accident was sufficiently significant to require the use of potent narcotic analgesia and that it was associated with depression.
Dr Lim accepted that the CT discogram of February 2008 provided supportive evidence for L5-S1 discogenic pain and that the findings of the discogram were accompanied by degenerative changes in the nature of dessication and loss of disc height. He said this indicated that the disc derangement was longstanding and due to a gradual degenerative process consistent with the plaintiff’s long history of lower back pain. On this basis he disagreed with Dr Lethlean’s opinion.
Dr Lim concluded that the plaintiff’s complaints and disabilities were inconsistent with the physical effects of the accident. He gave five reasons for rejecting her claim:
(a)The physical effects of the accident were minor.
(b)The injuries diagnosed by Calvary Hospital and confirmed by the plaintiff’s general practitioner were minor and expected to have a good prognosis. She recovered sufficiently to return to her pre-accident duties within two days of the accident. He noted that the plaintiff reported to her general practitioner on the date of the accident that the chronic back pain from which she suffered before the accident was slightly worse and that it appeared that this slight worsening had resolved within two days when the plaintiff was certified as fit to return to work.
(c)The plaintiff had significant health problems in the period immediately prior to the accident.
(d)His analysis of work attendances after the accident indicated that non-accident related factors contributed to the plaintiff’s ongoing work incapacity.
(e)His examination of the plaintiff indicated that her ongoing symptoms and disabilities were not causally related to the accident.
Dr Lim suggested that the plaintiff was suffering from a psychiatric disorder. His opinion was that the plaintiff was fully recovered by the injuries suffered in the accident.
Dr Lim examined the plaintiff again in February 2010. The plaintiff told him that the surgery for anterior fusion of the L5-S1 segment had not improved her pain and that she continued to suffer from intense pain in her lower back that extended into her right groin and right leg. She felt a sensation of hotness in her right foot and a cold patch at the back of her right thigh.
Although the plaintiff maintained that prior to the accident her back pain had been in the right sacroiliac joint, Dr Lim pointed out that this part of her claim was not supported by the clinical notes of her general practitioners. He referred to records of the several consultations with the plaintiff from 5 January 2007 to 7 May 2007 in relation to lower back pain, none of which referred to right sacroiliac joint pain. On 5 March 2007 the pain was noted to be in the lower lumbar region on the right side and the plaintiff was tender over the L5 vertebra, more to the right. The following day it was recorded that the pain radiated down both legs, more on the right side. Dr Lim said that pain arising from a sacroiliac joint might occasionally radiate into the adjoining leg but not into the contralateral leg.
Dr Noll initially examined the plaintiff in September 2008. In relation to her complaint of back pain, Dr Noll was informed that the plaintiff developed pain in the right sacroiliac region in late 2006 and that investigations failed to reveal evidence of sacroiliitis. There had been no specific diagnosis for this pain but the plaintiff told him that although she still had pain in her left sacroiliac region at the time of the accident she felt that it was improving. I have assumed that the reference to the left sacroiliac region was an error. Dr Noll concluded that the plaintiff suffered a soft tissue injury to her back at the time of the accident that was superimposed on a degenerative disorder of the lumbosacral spine. He said there was no evidence to indicate that the pre-existing disorder affecting the right sacroiliac region related to the back symptoms of which the plaintiff complained after the accident.
At the time of his second report of February 2010 Dr Noll had received copies of the clinical notes of the plaintiff’s general practitioners from which he noted that she complained of a flareup of low back pain in March 2007. He reported that the injury sustained in the accident was superimposed on the pre-existing disorder of the lower back. He accepted that the accident aggravated her condition. He expressed the opinion that she was taking an excessive amount of narcotic type medication and that pain management was required.
In a further report of November 2010 Dr Noll pointed out that lumbosacral pain was commonly referred to the region of the sacroiliac joint and that the general practitioner’s description of acute right-sided lower back pain radiating to the lower extremities after bending was typical of an acute exacerbation of lumbosacral pain and not of any disorder relation to the sacroiliac joint. He maintained his opinion that there was evidence of a significant pre-existing symptomatic disorder of the plaintiff’s lower back.
The claimed depression
As was the case concerning her back pain, the plaintiff denied that she was suffering from depression at the time of the accident, although there were references in the notes of her general practitioners as late as 27 May 2007 that indicated that she was receiving counselling for depression arising from her multiple health problems.
The first record of psychological assessment after the accident was contained in the report of Dr Mahoney, to whom the plaintiff was referred by her general practitioner. Dr Mahoney reported in September 2008 that the plaintiff consulted her on one occasion prior to the date of that report.
There were some inaccuracies in the medical history provided to Dr Mahoney. In particular, she was informed that the plaintiff’s medical problems were abating at the time of the accident and that after the accident her bilateral shoulder and knee problems were not considered to be serious. The overwhelming problem was said to be her constant significant back pain.
After administering a number of tests, Dr Mahoney diagnosed Major Depression and Chronic Pain Syndrome. She recommended cognitive behavioural treatment to address the plaintiff’s symptoms and provide pain management strategies. She said the plaintiff’s prognosis was fair, having regard to the prior history of a number of episodes of depression. Dr Mahoney accepted that the accident substantially contributed to the plaintiff’s depression because the plaintiff was now in the situation where her back problem was permanent. She accepted that there were other factors that contributed including the plaintiff’s pre-existing undiagnosed neurological symptoms and the death of her mother. She said that the contribution of these factors to the plaintiff’s depressive condition appeared to be minor.
The extent to which the plaintiff received treatment from Dr Mahoney was unclear. There was no subsequent report from Dr Mahoney but the plaintiff informed Dr Glaser, psychiatrist, that she initially consulted her weekly and subsequently monthly for treatment for depression.
In November 2011 the plaintiff consulted Dr Clarke on referral from her general practitioner. The plaintiff told Dr Clarke that she tried to address her mental health issues with minimal external assistance in the four years since the accident. By November 2011 she apparently decided that she needed assistance. Dr Clarke agreed with Dr Mahoney’s diagnosis of Major Depression. Her opinion that the plaintiff’s psychological disabilities were the result of a relapse triggered by the accident was based on the information provided by the plaintiff and her husband. Dr Clarke also recommended a course of treatment. The claim for out-of-pocket expenses indicated that there was only one further consultation with Dr Clarke that took place in March 2012.
Dr Glaser, psychiatrist, examined the plaintiff in April 2009. He noted the plaintiff’s longstanding history of significant physical and psychiatric problems. He noted that one month prior to the accident the plaintiff developed symptoms of depression. He said that at the time of interview the plaintiff had no current clinically significant psychiatric symptoms. She continued with mild symptoms that she had before the accident and had none of the symptoms that might be expected following a motor vehicle accident. In his opinion, the plaintiff was not restricted in her daily activities by any psychiatric disorder.
Dr Glaser was provided with a copy of Dr Mahoney’s report. He expressed the firm view that only limited weight could be given to Dr Mahoney’s opinions because she was provided with little detail of the plaintiff’s physical and psychiatric state immediately before the accident. He said there was no record that Dr Mahoney was aware of the worsening pain in the plaintiff’s back and other areas of her body, her increasing requirement for narcotic painrelieving medication or her increasing depressive symptoms in the period prior to the accident.
Weight gain
The plaintiff claimed that inactivity that was the result of her back injury caused her to gain weight after the accident. There was ample evidence in the plaintiff’s records of weight problems that she attempted to manage both before and after the accident. I was not satisfied that her weight gain was a consequence of the accident.
Summary
I have summarised as length the medical opinions provided concerning the plaintiff’s complaints of ongoing and severely disabling symptoms of back pain and depression. The purpose of this summary was to highlight the extent to which the opinions that accepted a causal relationship between the plaintiff’s low back condition and the accident were influenced by the plaintiff’s assertion that she was symptom-free in this area prior to the accident when clearly she was not.
There was no record in the Canberra Hospital notes to suggest that the plaintiff complained of right sacroiliac pain. The plaintiff’s general practitioner, Dr Lin, stated in unequivocal terms that the plaintiff had a prior history of chronic low back pain and that it was for this symptom as well as others that she was admitted to the Canberra Hospital in January 2007.
Dr Pik and Dr Mobbs made no reference to the plaintiff’s pre-accident medical records. Dr Brook’s acceptance that the plaintiff’s low back pain started after the accident was contrary to his pre-accident finding of symptoms in this area and to the medical records.
Dr Lethlean’s acceptance that there was no evidence of pre-existing symptoms in the plaintiff’s lumbosacral L5-S1 area was contrary to the medical records. Dr Le Leu was misinformed that low back pain commenced after the accident.
Dr Noll was initially not fully informed. On receipt of a full medical history he accepted that the plaintiff’s condition was the result of aggravation of an existing condition rather than a new injury.
Dr Lim, provided with a full history, expressed the opinion, also stated by Dr Brook and Dr Noll, that it was well recognised that lumbar spinal pain could radiate into the buttock and therefore appear to be coming from the sacroiliac joint region. In addition acute back pain could cause muscle spasms in the gluteal muscles resulting in acute pain at and around the sacroiliac joint region.
There was no doubt that the plaintiff’s claim bore the hallmarks of deceit and exaggeration. She pursued her claim that her back pain commenced from and was the result of the accident in the face of clear medical evidence to the contrary. Treatment that might normally be expected to resolve or ameliorate her complaints of pain universally failed. The increasing doses of narcotic medication with which she was prescribed failed to relieve her pain. Her surgeon, Dr Mobbs, was unable to explain the new symptoms of which the plaintiff complained after surgery that he considered to be successful.
I concluded that the evidence supported the defendant’s position that the plaintiff suffered a short term exacerbation of her pre-existing painful conditions in her neck, low back and shoulder. I proceeded to assess her claim on that basis.
Assessment
General damages: I accepted that the accident was responsible for a short-term exacerbation of the plaintiff’s neck, shoulder and low back condition. The medical records indicated that the plaintiff’s pain settled sufficiently to allow her to return to her pre-accident work without restriction within two days of the accident. By 12 June 2007 the plaintiff was complaining of multiple symptoms including that her right knee was locking and occasionally causing her to fall, that her neurological symptoms were worse as was her neck and back pain.
The plaintiff continued with mixed symptoms and with variations in her capacity to manage full time employment through July, August and September 2007. In September she travelled to Cambodia and experienced a pain-free period that she attributed to the warm weather.
I considered that this was the point at which, realistically, the aggravation of the plaintiff’s pre-existing symptoms resolved to their pre-accident levels.
I therefore assessed the plaintiff’s general damages on the basis that she suffered a relatively short period of aggravation of significant pre-accident musculoskeletal conditions.
I awarded the plaintiff $30,000.00 for general damages and interest in the sum of $3,000.00 on the whole of this sum for a period of five years.
Income loss: At the time of the accident the plaintiff was employed as a Grade 2 claims manager by NRMA. Her supervisor, Mrs Galvin, gave evidence that she was a valued and competent employee who contributed in areas outside the requirements of her position by mentoring junior staff and streamlining the claims management processes. Mrs Galvin said that the plaintiff continued to manage her workload notwithstanding her multiple pre-accident medical problems. She did suggest to the plaintiff that she take time off to try to overcome them. The result was that in January 2007 the plaintiff arranged for admission to Canberra Hospital for treatment.
The plaintiff claimed that she was totally incapacitated for employment as a result of the accident. Clearly, I did not accept this proposition. Had I been persuaded to accept the plaintiff’s claim that her low back condition was a consequence of the accident, I would not have accepted that she could never return to some form of income earning activity. The opinions of a number of medical experts, including Dr Le Leu, suggested that the plaintiff was capable at least of part-time employment. The plaintiff herself stated that her goal was to establish a cake-making business, although she had not at the date of the hearing pursued this goal to any significant extent.
The plaintiff’s employment records indicated that after the accident she took leave on workers’ compensation for 18 full days and that she worked for reduced hours for 34 days up to the end of October 2007. After that she took no significant periods of leave until May 2008.
On the basis that the plaintiff earned $715.64 per week at the time of the accident, I allowed for these absences the sum of $4,115.00. I rounded this sum to $5,000.00 to take account of interest, superannuation and the Fox v Wood component.
I was not satisfied that any injury suffered in the accident caused the plaintiff future income loss.
Out-of-pocket expenses: The plaintiff tendered a schedule of out-of-pocket expenses that totalled $91,987.75. She withdrew the claim of $2,042.83 that related to shoulder surgery undertaken by Dr Roberts in August 2008 but otherwise pressed the balance of the expenses listed. Unfortunately, the schedule did not identify the purpose for which many of the amounts claimed were expended. A significant sum was claimed for pharmaceuticals without specifying what they were, and for narcotic and other painkilling medications that the plaintiff used prior to the accident. $2,800.00 was claimed for psychological consultation with Dr Mahoney when, according to the report of Dr Clarke, the plaintiff did not receive treatment for her psychological condition until November 2011.
None of the expenses itemised in the schedule were incurred in the period immediately following the accident. I was invited to take an educated guess at what those expenses might have been. I did so by noting that the plaintiff attended upon her general practitioners on about 20 occasions between the date of the accident and the end of October 2007; that the reasonable cost of each consultation was $65 and that the sum involved should be reduced by one half to take account of the consultations that dealt in whole or in part with the plaintiff’s other medical problems. The result was an allowance of $650.00. I allowed an equal sum for medication and other incidental expenses.
The amount allowed for past out of pocket expenses therefore was $1,300.00.
I was not satisfied that any injury suffered in the accident generated a requirement for future out-of-pocket expenses.
Domestic care: The plaintiff claimed considerable sums for assistance with her domestic duties. She gave evidence, however, that prior to the accident she required some assistance because of her conditions affecting her knees and shoulders and it was apparent that, apart from a relatively short period immediately after the accident, no increased level of care was generated by any additional physical restrictions placed upon the plaintiff after the accident.
Once more, doing the best I could with the limited information available, I allowed the plaintiff four hours per week for 13 weeks after the accident at the rate of $25 per hour in the sum of $1,300.00. I considered that this sum was sufficient to take account of interest also.
Summary: The result was an award of $40,600.00 in favour of the plaintiff comprising:
General damages $30,000.00
Interest 3,000.00
Past income loss 5,000.00
Past out of pocket expenses 1,300.00
Past domestic care 1,300.00
$40,600.00
ORDERS
Judgment for the plaintiff in the sum of $40,600.00.
The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for a period of 14 days to allow either party to list the matter for further argument on the issue of costs.
The exhibits are to be retained for 28 days.
My reasons are published.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: Kayla Martin
Date: 29 May 2012
Counsel for the Plaintiff: Mr GA Stretton SC
Solicitor for the Plaintiff: Stacks
Counsel for the Defendant: Mr J Guihot
Solicitor for the respondent: Moray & Agnew
Date of hearing: 14, 15, 16 May 2012
Date of judgment: 29 May 2012
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