Lang v Taylor - [1999] WADC 35

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

LOCATION: PERTH

CITATION: LANG -v- TAYLOR [1999] WADC 35

CORAM: BLAXELL DCJ

HEARD: 19, 20 MAY 1999

DELIVERED : 13 AUGUST 1999

FILE NO/S: CIV 1057 of 1997

BETWEEN: KAROLINA LANG
Plaintiff
AND
JONATHON DANIEL TAYLOR
Defendant

Catchwords:

Negligence - Motor vehicle accident - Assessment of damages for personal injuries - Fractures to left femur and fibula, and soft tissue injuries - Aggravation of symptoms by pre-existing histrionic personality disorder

Legislation:

Nil

Result:

Damages assessed at $54,073.49 including $50,000 for non-economic loss

Representation:

Counsel:

Plaintiff: Mr J G Hanly
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Nil

BLAXELL DCJ: The plaintiff is a 67 year old pensioner who claims damages for personal injuries suffered in a motor vehicle accident on 6 April 1991. At the time of the accident the plaintiff was riding her bicycle along Berwick Street, East Victoria Park, when it was struck from behind by the defendant's motor vehicle. As a result the plaintiff sustained a number of significant injuries including fractures to the left femur and fibula, together with psychological symptoms.
The defendant admits that the accident occurred as a result of his negligence, and the matter has come before me for assessment of damages.
The plaintiff's background circumstances
The plaintiff was born in Austria on 12 July 1932 and was educated until approximately 14 years of age. After leaving school the plaintiff worked in various manual occupations such as factory hand, nanny, and nursing assistant. At the age of 29 years she emigrated to Australia where she worked in a number of occupations as a cook, housekeeper, or bar worker. She has resided permanently in Perth since 1962.
The plaintiff never married and she successfully raised a daughter and a son who are now aged in their mid-30's. As I understand the evidence the plaintiff has not worked for any significant period since the birth of her first child.
At all material times the plaintiff has resided in a house at East Victoria Park, and for many years she has lived there on her own. There is ample evidence to show that at the date of the accident the plaintiff was very physically fit for her age and was accustomed to riding her bicycle rather than driving a car. These bicycle excursions occurred every day and included regular trips into Perth.
Prior to the accident the plaintiff also had a history of involvement in community activities such as "Friends of Royal Perth Hospital". Because of this the plaintiff enjoyed a good reputation amongst her neighbours, and I accept the evidence of one of them (Mrs Stephanie Monck) that the plaintiff at that time as an "upright, proud lady" who was "always friendly, effervescent, (with) lots of opinions on lots of different things, lots of life in her". I also accept the evidence of the plaintiff's general practitioner, Dr Kargotich, that prior to the accident the plaintiff's general demeanour was such that she was "not one to complain of minor injuries". She was also outspoken, highly motivated, and "very genuine".
Because of the multiplicity of the plaintiff's symptoms subsequent to the accident, it is relevant to note that there were two prior occasions on which she had been injured. On 12 June 1982 she fell off a ladder and fractured her left wrist. It is the plaintiff's evidence that subsequently her wrist "never got right" and that sometimes she has needed to put on a bandage "just to make it a bit stronger and … a bit secure".
In approximately 1986 the plaintiff was involved in another accident when she was knocked off her bicycle by a motor vehicle. As a result she received a laceration to the right forehead which according to the plaintiff "took a few months to stabilise".
The evidence of Dr Katrina Alexander also shows that the plaintiff consulted her doctors a number of times between 1989 and 1991 concerning pain and tenderness in the left wrist, left and right ribs, and in her back. Furthermore, x‑rays in October 1989 revealed that there was arthritis in the left wrist. Although these symptoms did not prevent the plaintiff from continuing to ride her bicycle, she asked her doctors on a number of occasions whether her condition made her eligible for sickness benefits or the invalid pension.
The plaintiff's evidence as to the accident and its aftermath
On 6 April 1991 the plaintiff was riding her bicycle along Berwick Street, East Victoria Park, when it was struck from behind by the defendant's vehicle. According to the plaintiff the roobar of the vehicle hooked on to her bike and she was carried on top of the car for approximately 35m before falling to the road.
In her evidence the plaintiff has given a very vivid and unusually detailed account of all that then occurred. While she was lying on the road surface (which was "hot as a barbecue plate") she was approached by the defendant who then swore at her. Although she was aware that she had suffered injuries and was "beyond repair", she did not at that time feel any pain. She also strongly objected to being removed from the scene by ambulance and would have preferred to have been left by the side of the road, even if this had resulted in her death.
The plaintiff also resisted being treated at Royal Perth Hospital, and was angry when her daughter authorised an operation by the orthopaedic surgeon, Mr Cameron Thrum, which resulted in a "pipe" being inserted into her left leg. During her evidence the plaintiff broke down at times when describing particular events at the hospital, and she seemed to be genuinely indignant that treatment was administered without her consent. The general tone of her evidence is that what occurred during the course of her treatment at the hospital has caused her greater distress than the initial direct effects of the accident.
The plaintiff was discharged from Royal Perth Rehabilitation Hospital on 9 May 1991 at which time she was walking (with difficulty) on crutches. The plaintiff then returned to her home, and as I understand her evidence she initially had to care for herself because her son was living in Melbourne and her daughter in Tom Price. However, the plaintiff was able to obtain assistance from the Silver Chain Association and from Meals on Wheels.
After a period of approximately two or three weeks the plaintiff's son returned from Melbourne and soon afterwards arranged for her to be admitted to the Braille Hospital in Victoria Park. (He having a commitment to work in Antarctica). The plaintiff remained in the Braille Hospital for approximately five weeks before discharging herself on 11 July 1991.
It is the plaintiff's evidence that for approximately 18 months following the accident she experienced constant pain in her "whole frame". She attributed this pain to the presence of the "pipe" (being the name she insists on calling the pin or AO nail) inserted into the fractured femur by Mr Thrum. The plaintiff became very emotional when testifying as to the presence of the pin and described it as being so big and so awkward that she could not lie on it. She could also feel it when she walked and it felt like she had a "wooden leg". According to the plaintiff "the pipe also moved out of my hip" as a result of which she "could feel something hard standing out and I knew it wasn't my bone".
In October 1992 there was an operation to remove the pin, and it is the plaintiff's evidence that subsequently "the hard stuff disappeared but it was different. It was easier". Nevertheless the plaintiff's leg was shorter than before and consequently "it's so lopsided and I get so much pain after I walk. Half an hour on my feet and I'm finished".
It is the plaintiff's evidence that she also suffers other symptoms as a result of the accident. These include constant pain in the lower back, numbness in the right side after sitting for half an hour, pain in both feet (which she associates with her toenails having "stopped growing"), and "crunching" in her left calf muscle (which she associates with two wires left in the femur following Mr Thrum's operation). The plaintiff will not undergo surgery for removal of the wires because "I don't want to be cut again". She has also refused to take any analgesic medications for her symptoms, and for a number of years resisted the fitting of a shoe raise (to overcome the shortening of her leg).
It is the plaintiff's evidence that as a result of her symptoms her physical activities have been greatly diminished. She has not ridden a bicycle since the accident and she is unable to carry a normal shopping load. Consequently she now shops more frequently and trails smaller loads behind her in a two wheeled shopping trolley. Gardening and household chores now take twice as long and the plaintiff has to frequently stop and lie down. There are also particular tasks that she is now unable to perform such as washing the floor and standing on a chair to clean windows.
The plaintiff has also testified as to symptoms consistent with depression. According to her, she used to cry a lot because the memories of the accident overwhelmed her. However, for approximately a year up until the trial she has not been crying as much and has been able to sleep better. Nevertheless she feels less of a person, and in her words she is "only 10 per cent" and "just a waste of space". She considers that "all the joys of life are gone".
The medical evidence
Mr Cameron Thrum was the orthopaedic surgeon who had the care of the plaintiff following her admission to Royal Perth Hospital. Upon admission there was marked swelling and tenderness about the left thigh and tenderness at the left ankle as well as grazes on the left cheek. X‑rays revealed a compound comminuted fracture of the left femur and a fracture of the left fibula. The left femur was treated by open reduction and internal fixation with an AO nail. The fractured fibula was treated with a plaster cast.
According to Mr Thrum, the plaintiff made an uncomplicated recovery from surgery and after being transferred to Royal Perth Rehabilitation Hospital on 15 April 1991 was discharged on crutches on 9 May 1991. The plaintiff continued to make steady progress during subsequent outpatient reviews but on 14 November 1991 there was some slight wasting of the left quadriceps muscle, and the AO nail was backing out of the femur a little.
When seen again on 14 September 1992 the plaintiff complained to Mr Thrum about pain in both legs and in the pelvis and left hip, as well as numbness in the right buttock. Mr Thrum considered that there was an obvious area of crepitus over the left hip at the point where the nail exited the femur and that the only remedy was removal of the nail. This operation was performed without complications on 26 October 1992.
The plaintiff was reviewed by Mr Thrum again on 15 April 1993 at which time she described pain in the left thigh, lower back, and both arms. Examination showed the left leg to be 1-2cm short and with a slight external rotation deformity. There was also pain in the back on extension. Mr Thrum considered that the plaintiff had made a good recovery but had been left with a slight limp consequent upon the shortening and slight external rotation of the leg. There was also slight decrease in muscle strength in the left leg but otherwise an excellent range of movement in the hip and the knee. He attributed the bulk of the pain symptoms to a low back condition and assessed the residual disability in the left leg as being approximately 15 per cent.
On 24 August 1995 the plaintiff presented to Mr Thrum's clinic complaining of pain in the dorsum of her feet, her back, both hips and shoulder. She was seen on that occasion by Dr R Petanceski who attributed the symptoms to "a multifactorial component of which a large portion would appear to be due to possible psycho-social causes".
The plaintiff was examined again by Mr Thrum on 6 March 1997 at which date she was continuing to describe wide ranging symptoms. In a report of that date Mr Thrum acknowledged that there may be some pain on the lateral side of the left femur related to residual wires which were still in situ, and he also referred her to the Orthotics Department to look at the possibility of a shoe raise. In his report Mr Thrum further stated:
"I do not believe that the injury she has sustained and the recovery she has made would be such as to produce any major disability in terms of her leg. Radiologically she has an extremely well healed fracture and the degree of shortening would not be such as to produce major problems in her. She does have multiple other problems which I do not believe are related to her accident.
I would think it more likely that she will require assistance at home for problems such as degenerative disease in the spine. There may be other unresolved issues influencing the outcome of her injury and I do note that she was seen in 1992 by the Geriatric Services at Bentley Hospital where it was felt that she should possibly have a psychiatric review."
In a further report dated 23 July 1998 Mr Thrum noted that x‑rays taken in March 1997 had revealed gross hypertrophic osteoarthritis at the L4/5 and S1 levels of the lumbar spine. These x‑ray findings suggested some degree of spinal stenosis.
Following a further consultation on 12 May 1999 Mr Thrum observed that the plaintiff was exhibiting signs of quite severe arthritis in her back. In a report of that date he went on to state:
"I think it is likely Mrs Lang would have developed arthritis in the spine irrespective of her accident but it is possible that since she has a slight external rotation, that she is walking in an abnormal fashion and this may aggravate some of her pre‑existing degenerate change. With the degree of external rotation that she has I do not think (that that) would be such as to cause severe problems.
I think it is unlikely that the small degree of mal alignment and leg length shortening would be such as to significantly aggravate or accelerate the osteoarthritic degenerative change. The reason for this is that one could reasonably expect arthritis to develop in this patient's age group and secondly, since she has degenerative change over a wide area, this is much more likely to be a generalised process and a specific rotational abnormality associated with a pivotal shift at one area.
Somewhere over 85% of the population will have significant arthritis at the age of 65 to a greater or lesser extent and 100% of human beings will develop arthritis in the spine during their lifetime if they live to be 70 years."
The psychological aspects of the plaintiff's condition first received attention approximately one year following the accident. This came about as a result of the plaintiff's general practitioner referring her for examination by a physician, Mr M D Donaldson. At that time the plaintiff was refusing to take oral analgesia and also was angry and tearful when recalling the accident. It was Mr Donaldson's opinion that the plaintiff's symptoms were exacerbated by her personality and mood and possibly by unresolved issues relating to the motor vehicle accident. He suggested that a psychiatric referral would be appropriate.
This recommendation was not immediately acted upon but in August 1992 the plaintiff referred herself to a clinical psychologist, Ms Debra Richards. Ms Richards noted that the plaintiff reported having flashbacks and intrusive thoughts and feelings related to the accident approximately three times per day. Ms Richards considered these amounted to clear signs of a post‑traumatic stress disorder and she also made a clinical assessment of depression.
Between August and November 1992 Ms Richards undertook six sessions of counselling for the plaintiff, but this intervention did not result in any permanent gains. According to Ms Richards, the plaintiff "remained obsessively focused on generalised cognitions about people generally not caring, being a victim, etc." (report 9 December 1992) and there was difficulty in working with the plaintiff because she tended to become quite emotive.
On 23 November 1992 the plaintiff was assessed by the consultant psychiatrist, Dr Jon Sainken, at the request of the defendant's solicitors. Dr Sainken noted that the plaintiff was extremely resentful towards the defendant and refused to regard the incident on 6 April 1991 as an accident. Furthermore:
"There seemed to be a great deal of emotion attached to this particular point and it is highly likely that this relates to her attitude towards her condition and her ability to cope with her ongoing pain and disability."
Dr Sainken also assessed the plaintiff as being an eccentric and highly volatile person who was strong willed and opinionated. The plaintiff's conversation had a fanatic and anxious quality to it, and she was totally preoccupied with her pain, the injustice of the accident and her disability. In a report dated 23 November 1992 Dr Sainken concluded as follows:
"I believe this woman is suffering from a variety of conditions,
1.She has a particular personality known as Histrionic Personality Disorder. This would have affected her for most of her life. It would have made her volatile, easily upset and poorly equipped to cope with this situation.
2.Post Traumatic Stress Disorder - this has been diagnosed by the psychologist, Debra Richards, and I can see no reason to dispute the diagnosis. Nevertheless it should be commented that it is easy to elicit symptoms of Post Traumatic Stress Disorder in patients unless questions are asked rather subtly. I'm sure Ms Richards is aware of this. It is also not necessary to diagnose Post Traumatic Stress Disorder when other similar conditions exist and this is also the case here.
3.Phobia - she does exhibit a phobia of riding a bike and in so far as she is physically fit to so I think this phobia can be considered as moderate to severe in nature. The phobia could result in her recurrently experiencing the circumstances of the accident and is part result of this recurring mental experience. In this it cuts across the definition between this diagnosis and that of Post Traumatic Stress Disorder.
4.Depression - I do not believe she is suffering from a depressive illness. The symptomatology is not sufficiently present or clear cut. Naturally she is miserable from time to time but this is mainly a result of a negativity and her pain.
In summary she is a histrionic, eccentric type of lady who has unfortunately had her energetic, health orientated lifestyle curtailed by an accident which she chooses to see as being caused by a callous degree of carelessness on the part of the driver of the motor vehicle.
Thus, the level of pain and disability attributable to the physical is extremely hard to calculate but one can be certain that a large part of her current problems are due to an emotional decompensation which takes the form of multiple anxieties, anger and a phobia of bicycle riding in particular and road accidents in general."
On 12 February 1998 a further psychiatric assessment was carried out by Dr R Finlay-Jones at the request of the defendant's solicitors. Dr Finlay-Jones found no objective evidence of depression at the time of the examination and agreed with Dr Sainken's opinion that the plaintiff had a histrionic personality disorder.
During his evidence at trial Dr Finlay‑Jones described a histrionic personality disorder as a pre‑existing condition which results in people subject to it treating a traumatic event as the hub of their life around which "a whole lot of meaning is then constructed". In the plaintiff's instance when, for example, she states that the accident has resulted in her being a "waste of space" she subjectively feels that she is a waste of space. Furthermore, the plaintiff's strong views in refusing medications and her unwillingness to undergo further surgery, is consistent with this personality disorder.

With regard to future treatment Dr Finlay-Jones would recommend the plaintiff undergo six months of anti-depressant medication with approximately two reviews by a psychiatrist. Failing this and if the plaintiff continued to refuse such medications, then Dr Finlay‑Jones would agree with Dr Sainken's recommendation of a course of psychological counselling.
Dr Finlay‑Jones is also of the opinion that the trial itself may have therapeutic value for the plaintiff. In this regard:
"I got the impression that, unlike many plaintiffs, it wasn't a matter of exchanging symptoms for a sum of money in her case - that wasn't as important as it is for many plaintiffs and that it was more the opportunity described just how hurt, physically and psychologically, she had been by that accident, and I - so therefore I would assume that no matter what the outcome in monetary terms, she might now feel at last she had been heard and that would be important in making her feel better." (T52)
Other evidence as to the effects of the accident
I have already referred to the evidence of Mrs Stephanie Monck as to the plaintiff's pre‑accident personality and behaviour. Subsequent to the accident Mrs Monck has observed that the plaintiff is not as happy as she used to be and is "obviously upset by what's happened to her".
The plaintiff's daughter, Mrs Anita Sewell, has also testified as to the change in her mother's personality following the accident. According to Mrs Sewell, the plaintiff has become stubborn and difficult in relation to the accident and wishes to talk about it "every time we get on the phone". These conversations "will start from the day that she was riding her bike, how she was hit and it will continue … (and) she would relive it every single time". According to Mrs Sewell, her mother is angry with the defendant and with anyone who had anything to do with the accident including the doctors who operated on her. The plaintiff is also angry with Mrs Sewell for approving the operation and consequently their relationship has deteriorated to the stage that the latter is reluctant to visit her mother.
The general practitioner, Dr S Kargotich, has known the plaintiff for many years but has not been her general practitioner continuously throughout that period. According to him, the plaintiff was "very highly motivated" prior to the accident and was "very rarely sick". Subsequently she has been very depressed and appears to be frustrated "that nothing can be done". He is not surprised by her resistance to medications and to a foot raise because:
"Healthwise she is a person who relies a lot on nature and good faith and all that sort of thing and she takes a lot of convincing on certain lines of treatment. She has just been like that all her life …". (T103)
Findings of fact
It is self‑evident that there are no significant conflicts in the medical evidence, and accordingly I have no hesitation in accepting the various expert opinions as to the physical and psychological consequences of the accident for the plaintiff.
In this regard I find that as a result of the accident the plaintiff sustained a comminuted fracture to her left femur and a less serious fracture to her left fibula, as well as other minor injuries and abrasions. The fracture to the femur required insertion of an AO nail which was removed approximately 18 months afterwards. During the interim period the plaintiff was significantly incapacitated, but subsequently she has been left with an approximate 15 per cent disability in her left leg. The plaintiff has also been left with a shortening of the left leg in the range of 1-2cm.
I also find that over a period of approximately two years prior to the accident the plaintiff had consulted her general practitioner on a number of occasions complaining of pain in her left wrist, left and right ribs, and lower back. The pain in the left wrist was due to arthritis resulting from the fall from a ladder in 1982. The pain in the lower back was attributable to the onset of osteoarthritic degenerative changes at the L4/5 and S1 levels of the lumbar spine. I also consider it fair to find that the accident‑caused shortening of the plaintiff's left leg has resulted in some limited aggravation of the pre‑existing lumbar degenerative changes.
With regard to the plaintiff's other more widespread complaints, the medical evidence is incapable of establishing any possible link between those symptoms and the accident caused injuries.
The plaintiff's accident caused symptoms have no doubt been aggravated by her refusal to take analgesic medications and to wear a shoe raise for a significant period. Although it is open to argument that the plaintiff has thereby failed to mitigate her loss, her views on these matters are consistent with her pre‑accident disposition. In these circumstances I do not consider that she has acted unreasonably in continuing to take the attitudes that she has in these respects.
I also accept the evidence of Drs Sainken and Finlay‑Jones as to the existence of a histrionic personality disorder coupled with a less significant post‑traumatic stress disorder. The presence of these conditions helps to explain the plaintiff's unusual attitudes and perceptions towards the accident and its aftermath. Although these attitudes and perceptions cannot be justified on any objective basis I consider that they are genuinely held.
In this regard I have had the advantage of seeing the plaintiff in the witness box and I consider her to be an honest and truthful witness. However, notwithstanding this finding, her evidence is obviously unreliable, and there can be no basis for many of her assertions as to the effects of the accident. In summary I consider that the pre‑existing personality disorder has exacerbated the plaintiff's subjective perceptions of the pain and suffering resulting from the accident.
I also accept Dr Finlay‑Jones' evidence as to the likely therapeutic value of the trial. The plaintiff's general demeanour at trial satisfies me that the experience of giving evidence and of having her grievances heard is likely to have an ameliorating effect (with regard to her perceived symptoms).
The quantum of damages
For the reasons as outlined above I am satisfied that the physical effects of the accident have been aggravated by the plaintiff's histrionic personality disorder. This pre‑existing condition has caused her to perceive her injuries and symptoms as being much more devastating than they in fact are. These perceptions in turn have impacted upon her outlook and personality and have caused her to become socially isolated as well as estranged from her daughter.
It is a well established principle that in these circumstances the defendant is liable for the aggravated effects of the injuries. As was stated by Menzies J in Watts v Rake (1960) 108 CLR 158, 164:
"(A) negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuring complications that would not in a normal person have followed from the injuries received … does not mean that damages are not to be assessed according to the circumstances of the particular case."
The plaintiff's claim for general damages is largely for non‑economic loss, and if I was to have regard only to the physical effects of her injuries I would consider a global assessment of approximately $30,000 to be appropriate. However, in light of the plaintiff's pre‑existing personality disorder which caused her to be peculiarly susceptible to aggravated effects from her injuries, I consider an appropriate award for non‑economic loss to be the sum of $50,000. This sum takes account of all aspects of the plaintiff's claim for non‑economic loss, other than for gratuitous services in respect of which there was no evidence (and therefore cannot be any award).
In addition, the plaintiff is entitled to an award of general damages in respect of future medical treatment. Given the plaintiff's predisposition against anti‑depressant medications, I accept the opinions of Drs Sainken and Finlay‑Jones that it is appropriate to allow for approximately 12 months counselling involving 17 visits to a psychologist (not a psychiatrist) at a cost of not less than $100 per visit. In addition, the plaintiff will require approximately three visits to her general practitioner per annum and occasional follow-up x‑rays, but the evidence indicates that she will not incur any expense in this regard. Based on these findings I assess a reasonable award of general damages for future medical expense to be the sum of $1,700.
The plaintiff's special damages have been agreed in the sum of $2,373.49. I accordingly assess the plaintiff's total entitlement to damages to be the sum of $54,073.49, and there will be judgment for that amount.