Leanne Pugh v Patrick Alan Hanson
[2013] ACTSC 12
LEANNE PUGH v PATRICK ALAN HANSON
[2013] ACTSC 12 (31 January 2013)
DAMAGES – personal injury – motor vehicle collision – whiplash injury to neck – aggravation of pre-existing asymptomatic degenerative condition in cervical spine – woman aged 43 at date of injury – substantial impairment of earning capacity – resolution of differences of opinion between medical experts
Hughes v Janrule Pty Ltd [2010] ACTSC 5
Noble v O’Brien [2010] ACTSC 29
Goldsborough v O’Neill (1996) 131 FLR 104
No. SC 23 of 2008
Judge: Master Harper
Supreme Court of the ACT
Date: 31 January 2013
IN THE SUPREME COURT OF THE )
) No. SC 23 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: LEANNE PUGH
Plaintiff
AND: PATRICK ALAN HANSON
Defendant
ORDER
Judge: Master Harper
Date: 31 January 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $634,774.00.
This is an action for damages for personal injury arising out of a motor vehicle collision. Liability is not in issue.
The collision
The collision occurred on 6 September 2005 at about 4.30 pm. The plaintiff was a passenger in a car driven by her husband, which was proceeding south on Canberra Avenue, Forrest. She had picked her husband up from work but he was driving and she was in the front passenger seat. A van driven by the defendant east in Empire Circuit proceeded without stopping across Canberra Avenue, which at that point is a divided road of two carriageways in each direction, each of two marked lanes, with a wide grass median strip. The front of the van collided with the offside front door and mudguard of the vehicle in which the plaintiff was travelling, pushing the vehicle off the road and on to the nature strip on the eastern side of Canberra Avenue, a short distance south of the intersection. The plaintiff’s evidence is that there were head restraints on both front seats. A police photograph taken after the collision shows no restraint at the top of the passenger seat. I draw the available inference that the restraint came away from the seat during the impact.
The car driven by the plaintiff’s husband was the only car in the family. It was damaged beyond repair. The plaintiff’s husband was injured but not as badly as the plaintiff.
The scene was attended by police, an ambulance and firemen, the intersection being a short distance from the Forrest Fire Station. The plaintiff was taken by ambulance to Canberra Hospital where she received outpatient treatment.
The plaintiff
The plaintiff was born in February 1962 and is almost fifty-one. She grew up in Adelaide. She and her husband, who is nineteen years older, married in 1985 and have two sons now aged twenty-two and twenty. They lived in Darwin for three years in the late 1980s, where the plaintiff worked in the public sector, and moved to Canberra in 1990. Her employment in those early years included work at the Defence Department in Adelaide, the Legal Aid Office (Northern Territory) in Darwin and the Bureau of Statistics in both Darwin and Canberra. In addition she did some part-time work in the retail area.
In September 2002 she started work at Canberra Grammar School, in an administrative capacity. This involved, principally, the use of a computer.
In May 2005 she started an Arts degree through Open Universities Australia, which offers degree courses on line, with subjects being provided by various Australian universities.
There were some stresses in the marital relationship, which had survived by the time of the trial, and which had not led at any time to a separation. Nor is there any suggestion of a separation in the future, on the evidence before me.
The oral evidence
The only oral evidence was that of the plaintiff and her husband.
The plaintiff conceded in chief that she had had some physical and psychological issues prior to the car accident. In 1995 and again in January 2005 she had sessions with a clinical psychologist, Mr Nomchong, in the context of stresses arising from family matters about which it is unnecessary for me to go into detail. She also gave evidence of some physiotherapy treatment over the years for neck and back pain, most recently prior to the accident in April 2003 and July 2004. The physiotherapist’s notes in April 2003 refer to a history fifteen years earlier of tightness in the cervical spine, alleviated by massage. The plaintiff did not see a doctor about any of these symptoms, and had not seen a physiotherapist for about fourteen months before the accident.
In 1995 she gave up work with the Bureau of Statistics and started part-time work at a Laura Ashley outlet in Canberra. She had ceased full-time work a little earlier, and had a period of job-sharing with the Bureau so that she would have some days off with her children. The move to the retail sector allowed her time off during the week, with her husband looking after the boys while she was working at weekends.
During 2002 the opportunity arose for her to start employment with Canberra Grammar School, working 32 ½ hours per week. The work was generally limited to school hours and term periods, giving her time to be with her sons during school holidays. A bonus which went with this job was a discount in school fees for her sons. Initially the discount was 50% but this reduced to 40% in 2007 and to 30% from 2008.
The plaintiff’s evidence was that she was in considerable pain following the car accident. She was given a collar and a morphine injection at Canberra Hospital, and sent home. She was in continual pain over the next few days, with a headache. Her sleep was badly affected. She had a few days off work. It was a very bad week for her: someone tried to break into the family house, fortunately unsuccessfully. The plaintiff’s father, who lived with the family, became seriously ill and had to be taken by ambulance to hospital.
The plaintiff went back to work the week after the accident, still in pain. She saw her general practitioner, Dr Harrison, ten days after the accident. He referred her for physiotherapy and approved of her continuing to take Panadol as needed. She had four treatments of physiotherapy over the following month, which provided temporary relief only. She found that she could obtain similar relief with massage by her husband at home, although the symptoms generally returned within a day or two. Her general practitioner told her that she should recover in time, and she was given the same message by others.
She was able to continue her online university course. Her intention was to complete the Arts degree, and to apply for graduate entry to the Australian Public Service so that the family would have a continuing income after her husband’s retirement. She intended to continue her employment at the school until her sons finished. The elder boy finished Year 12 in 2007 and the younger son in 2010.
The plaintiff said that the three years following the accident were not good years. Contrary to her expectation, she did not seem to be getting any better. She reached a point where she became frustrated with this. She went back to Dr Harrison in 2009. He referred her for an MRI scan.
During 2007 there was a restructure of the administrative arrangements at the school. The plaintiff was required to spend some time with the drama department and some time with the music department, reducing her working time to 30 ½ hours spread over four days a week. She had a personality clash with the head of the drama department and found it too difficult to cope with her pain and the personality difficulties. She gave up work in the drama department and continued to work in the music department only.
During the second term of 2008 her father had a recurrence of an earlier illness and required major surgery. The plaintiff asked for leave from the school to look after him.
At the end of July 2008 the plaintiff underwent a hysterectomy which put her out of action for some time. She took a break from her university course, having completed about half of the degree with a mix of high distinctions, distinctions and credits. In the event she had not returned to the degree by the time of the hearing and was not expecting to do so in the foreseeable future.
She went back to work at the school at the beginning of term four 2008. During her time off work the neck pain had become less intense and easier to cope with. But when she returned to work, she was asked to work full time for the first two weeks, to relieve someone who was away. This involved working at a computer all day, and brought her symptoms back to their earlier level. After the first two weeks the plaintiff reverted to her half-time hours. But after lengthy discussions within the family, she decided to try some other kind of work. Her elder son was working at a school which included care for very young children. The plaintiff had a trial for two days in November 2008, and enjoyed the work. She decided to give up her job at Canberra Grammar School. She gave notice by letter to the Headmaster early in January 2009, and did not return to the school.
Initially the plaintiff found that she was coping well looking after preschoolers at the childcare centre in her new job. She continued to have low-level neck pain.
Some time early in the 2009 school year, the plaintiff’s younger son, who had just started Year 11, suffered a collapsed lung. Medical advice was that he was at high risk of this happening again, and he became very nervous at the thought that he might be home alone after school when this happened. The plaintiff asked whether she could reduce to part-time hours. The director at the school was able to offer part-time work only if the plaintiff was prepared to work with much younger children. She attempted this for about two weeks, looking after thirty toddlers who were not yet toilet-trained and needed to have their nappies changed three or four times a day. The plaintiff found that the lifting which this required caused an unacceptable level of neck and shoulder pain, and she had to give the work up. By the time of trial she had not worked again.
The reason she had not returned to study was that there was a large volume of reading. Lectures were in written form. The plaintiff found reading particularly troublesome in terms of neck pain. This was because of the need to keep her head in a static position for a lengthy period. She attempted various means to overcome the problem, including the use of a podium, but none of these were successful. By the time of the trial the plaintiff had pretty much given up the idea of completing her degree and of going into the public service. She regarded herself as incapable of clerical work. She thought that she could work in retail for a couple of hours a day but would have difficulty if she were required to unpack and lift stock, or to move furniture. She thought it was possible that she might be able to find a job in childcare but had not looked for such a job. She said that she had become depressed and frustrated.
Dr Harrison during 2009 had referred her to a neurosurgeon, Dr Pik. He had suggested various possible courses of treatment including physiotherapy, cortisone injections and surgery. Her general practitioner’s advice was she could try the injections but that they had not worked in his own case, and nor had subsequent surgery. He told her that neck surgery had a notorious failure rate and that for patients who had had pain for longer than five years, surgery did not usually get rid of the pain.
The plaintiff thereafter decided to manage the pain as best she could, by avoiding activities or positions which might make it worse. She found walking practical and helpful. She had had regular physiotherapy which included acupuncture, and this gave relief for a day or so.
The plaintiff’s evidence was that she was no longer doing much at all, even at home. She was no longer able to do the cleaning work in the house, or the washing or ironing. She had done all of that before the accident, and also the cooking. Since the accident, she and her husband often cooked dinner together at night, but he did all of the cleaning, washing and ironing as well as all of the outside maintenance and other work. By the time of the trial the plaintiff’s husband was continuing to work full time as a public servant, and was almost seventy, intending to retire within about six months of the trial. If it had not been for the accident he would probably have retired a year or two earlier, when the plaintiff was able to start work in the public service.
In addition to her neck problems, the plaintiff said that she had had some low back pain over a number of years. It was intermittent, whereas the neck pain since the accident had been present all the time. She said that her low back pain would not have prevented her from working, completing her degree or taking up employment in the public service.
Sometimes, though not all the time, the plaintiff had pain down her right arm, through to her fingers. This was generally brought on by activity and alleviated if she ceased that activity. She did not like driving, constantly thinking that accidents were about to happen. This was worse when she was a passenger.
She was asked what the future held for her in terms of work. She said that this was something she and her husband would look at when he retired. They had discussed the possibility of doing voluntary work together, perhaps for a morning or an afternoon each week.
The plaintiff’s husband gave brief oral evidence. He had suffered minor injuries in the car accident, which included concussion. He confirmed that prior to the car accident the division of domestic duties was in general terms that he looked after anything outside the house and his wife looked after everything inside the house. After the accident he gradually took over more of the internal work, as his wife found that she was unable to cope with some activities because of neck pain. By about two or three months after the accident an arrangement had come into practical play whereby he looked after the washing twice a week, including hanging clothes on the line, or putting them through the dryer on a wet day. He attended to the ironing, and also vacuuming and cleaning of the bathrooms. He also changed the sheets on the bed. He and his wife shared the cooking. He estimated that the additional activities took him about four or five hours a week by comparison with the position before the accident.
He confirmed that he had intended to retire at the end of 2010, by which time he and his wife hoped that she would have finished her degree and been in a position to apply for graduate entry into the Commonwealth Public Service at APS 3 level. If it had not been for the accident she would probably have worked until age sixty-five. In the event he did not retire at the end of 2010. They were in the process of completing an extension to the house, and there were other bills to be paid.
His observation was that his wife appeared to have a constant level of pain, varying depending on activities.
The plaintiff’s husband’s intention, at the time he gave evidence, was to retire at the end of 2011.
The medical evidence
Medical reports in the plaintiff’s case were tended from Dr Harrison, general practitioner; Meeta Lad, physiotherapist; the late Dr Marian Scarrabelotti, neuropsychologist; Dr David McKenna, radiologist; Associate Professor Owen White, neurologist; Dr Graeme Griffith, surgeon; Associate Professor David Champion, rheumatologist and specialist in pain medicine; Dr Justin Pik, neurosurgeon; Dr Leon Le Leu, occupational physician; and Dr Patricia Jungfer, psychiatrist. Of these, Dr Harrison, Ms Lad, Dr McKenna, and Dr Pik were involved in the plaintiff’s treatment. The other practitioners were qualified to provide expert reports for the purpose of the proceedings.
Reports were tendered in the case for the defendant from Professor Ross Mellick, neurologist; Associate Professor Peter Youssef, rheumatologist; Dr Pauline Langeluddecke, psychologist; and Dr Virginia Pascall, occupational physician. The solicitors for the defendant also obtained a report from Dr WJ Coyle, orthopaedic surgeon, in May 2009. This report was provided to Professor Mellick who read it and commented on it, but it was not tendered in the defendant’s case and I infer was not served on the solicitors for the plaintiff. I draw the available inference that Dr Coyle’s report would not have assisted the defendant’s case.
Treating practitioners
Dr Harrison reported to the plaintiff’s solicitors in June 2006, within a year of the car accident. At the time he reported he had not seen the plaintiff since November 2005. His diagnosis was that she had suffered soft tissue injuries to the neck and right shoulder, from which he expected that she would fully recover physically.
Ms Lad confirmed that she saw the plaintiff on four occasions after the accident, during September and October 2005. She agreed with Dr Harrison that the plaintiff had suffered soft tissue injuries to the neck. She noted that despite advice the plaintiff had not made any further appointment. It was therefore difficult to determine her prognosis or how much further treatment she would need.
Dr Scarrabelotti carried out a number of tests. She found that the plaintiff was generally in the superior to very superior range on the various aspects of intelligence, although there was evidence of subtle selective executive function difficulties which could be understood in terms of difficulties of sustained attention and attentional switching. Her diagnosis was that the plaintiff was suffering from mild to moderate anxiety as a consequence of the car accident, with mild subtle higher level attentional difficulties. The disabilities she noted were consistent with a mild closed head injury. She recommended treatment in the form of half a dozen sessions of clinical psychology of an hour each, and anticipated that with such treatment the plaintiff would make a full recovery from her psychological symptoms.
Dr Pik saw the plaintiff in May 2010, nearly five years after the car accident. She complained of neck pain with intermittent radiation down the right arm to the hand and fingers, also radiating to an area between the shoulder blades. On examination he found limitation of cervical flexion and extension. She also had a pattern of sensory alteration in the upper right arm.
Dr Pik reviewed an MRI scan which had been taken a month earlier in conjunction with the appointment made for him to see the plaintiff. The MRI showed severe C5-6 degeneration causing decreased disc height, with foraminal stenosis on the right side due to a combination of disc bulging and osteophyte, which he said would be causing a compromise of the C6 nerve root. The C6-7 was mildly degenerative but without nerve root compromise, and the other cervical levels appeared relatively normal. There was no evidence of spinal cord compression.
Dr Pik also found evidence of facet joint disease and degeneration of the lumbar spine. It was not suggested that any injury to the lumbar spine was caused by the car accident.
He thought that physiotherapy to the cervical spine might be of benefit. If that did not help, spinal injections might be effective. Surgery was not indicated at the time but might become relevant in the future if the symptoms worsened.
Other reports tendered for the plaintiff
Dr Griffiths is based in Melbourne but visits Canberra regularly to see patients for medico-legal reports. He saw the plaintiff in June 2006, November 2008 and July 2011. He took a detailed history on each occasion. In the earlier years he thought that the prognosis for a recovery over time was good, but by 2011 he accepted that the plaintiff had not recovered from her neck symptoms and was probably suffering from a neuropathic pain condition. The prognosis for her underlying degenerative disease was for progression, with periodic exacerbation and remissions. She was unlikely to remain symptom-free. He made some suggestions about treatment which might improve her condition but was not involved in her treatment. He thought that the low back pain of which the plaintiff complained, which had come on well after the accident, was unrelated to it. His final view, expressed in a short report in August 2011, was that if the plaintiff had not been injured in the car accident, her cervical degeneration was not likely to have become sufficiently symptomatic in the future to interfere with her earning capacity. He thought that she would have had some progression of the underlying degenerative disease consistent with age, but the manifestations involving all elements of the cervical spine which could be seen in the MRI scan were in his opinion most unlikely without the trauma of the car accident.
Associate Professor Champion saw the plaintiff twice, in May 2009 and August 2011. In his first report he noted that the plaintiff had cervical spondylosis, including disc degeneration and osteoarthritis in the facet joints, before the accident. He said that if an MRI scan had been performed before the car accident, it would probably have shown similarities to the scan undertaken in April 2009. However, the disc protrusions seen at C5-6 and C6-7, and the narrowing of the foramina, had probably increased by reason of the motor vehicle impact. It was common for mild to moderate spondylosis to be asymptomatic, although the pre-existing condition probably predisposed the plaintiff to a worse outcome after injury than would otherwise have been the case.
The dominant injury had been to the cervical spine. This had caused a multilevel cervical spinal pain syndrome with deep somatic referred pain to the right suprascapular and shoulder region, and cervicogenic headaches, accompanied by restricted range of movement of the neck. The accident had caused cervical radiculopathy which probably involved the C6 and C7 nerve roots. Paraesthesiae were consistently reproduced by gentle vertebral pressure in the C5-6-7 region. The plaintiff was predisposed to cervical nerve root hyperexcitability at those levels by the narrow intervertebral foramina. There was no evidence of compressive radiculopathy, and the more likely explanation for the symptoms was a one-hit injury to the cervical spinal nerve roots, causing them to remain hyperexcitable.
The plaintiff, he found, also had right-sided hemi-hypoaesthesia with regions of deep secondary allodynia and hyperalgesia. Some of these symptoms were probably accounted for by the one-hit injury theory, but the more likely explanation was that the disordered somatosensory testing was a result of sustained spinal dorsal horn functional aberration consequent upon the pain/nociceptive inputs resulting from the original injury.
All of this, he said, amounted to a substantial cervical spinal injury caused by the car accident, justifying the plaintiff’s considered decision to reduce her working hours and ultimately to withdraw altogether from clerical work and her university course. The nature of the disorder was such that one would expect aggravation by physical provocations such as computer work.
Professor Champion tended to disagree with Dr Scarrabelotti who thought that the cognitive and psychological symptoms following the accident were probably related to a head injury. Professor Champion thought that these symptoms were more likely to be chronic-pain related disorders accompanied by impaired sleep and psychic influences.
He was doubtful whether further physical treatment would be of much help to her. He thought that periodic physiotherapy might help her through exacerbations. Spinal injections might help but the balance of likely benefit to risk was not particularly favourable at her stage. She might ultimately come to decompressive surgery. Some medications might provide limited help, and further psychotherapy and pain management guidance would be useful.
Professor Champion concluded in his first report that the prognosis in the long term was not encouraging. Dr Harrison’s initial optimism was unjustified and had proved untenable. The plaintiff would not fully recover from the effects of the injury. The spondylitic process would probably take a slightly worse trajectory than if she had not been injured. She might eventually come to surgery, though not for some years, at a present-day cost of at least $15,000. The likelihood of surgery was between 20% and 50%. The most likely outcome would be more of the same in the long term, that is easily provoked aggravation, some spontaneous pain and other symptoms, and lack of resolution.
When Professor Champion saw the plaintiff again just before the hearing, he recorded that there had been no basic change in the severity of the plaintiff’s symptoms. She had been better able to identify postures and activities which provoked symptoms and to avoid or modify them. Her most constant continuing pain was at the back and sides of the neck radiating toward the shoulders, particularly on the right. She showed some depression of mood and interference with train of thought, though those symptoms were reducing.
Professor Champion carried out further testing during the course of the consultation, the results of which were consistent with ongoing chronic spinal and regional referred pain disorders and implied central sensitisation of nociception. He ascertained from the plaintiff that he was the only practitioner who had carried out such detailed sensory cutaneous and deep sensory testing.
Professor Champion noted that fine independent finger movements with the right hand were slightly sluggish, a characteristic of some people with chronic regional pain syndrome. Neck movements in most directions were very limited and there was prominent tenderness in the cervical vertebral area, with palpation in the mid-cervical spine provoking nausea, and gentle palpation at C5-6 activating pain in the right arm.
He repeated his opinion that prior to the accident, because of her spinal degenerative condition, the plaintiff had a minor predisposition to worse post-accident chronic spinal and referred pain. Her psychological symptoms following the accident had been within the range of normal psychological responses to injury and pain. Her chronic pain had been instrumental in her ultimate cessation of work. The physical testing he had carried out was strongly indicative of a chronic regional pain syndrome, and Professor Champion’s view was that the plaintiff was suffering from such a syndrome, with possible radiculopathy, definite deep somatic referred pain, hyperalgesia of the cervical vertebrae, and a substantial related disorder of somatosensory processing reflecting a hyperalgesic state, consistent with central sensitisation of nociception. The disorder was primarily and substantially caused by the car accident, which was responsible for the continuing symptoms and inability to work. The plaintiff’s repetitive clerical work activities had made a contribution to her cervical spine symptoms. She was unfit for work in the foreseeable future, and considerably disabled for activities of daily living.
Associate Professor White, who saw the plaintiff in May 2009, carried out considerably less testing but concluded that the plaintiff’s symptoms were compatible with injury to the cervical spine in the car accident.
Dr Le Leu saw the plaintiff in April 2010. His opinion was that the plaintiff had suffered in the car accident aggravation of pre-existing but largely asymptomatic degeneration of the cervical spine accompanied by a whiplash injury. He saw her five years after the accident when she was still significantly symptomatic. He said that quite frequently when previously asymptomatic degeneration was made symptomatic by trauma it stayed symptomatic for a very long time, sometimes permanently. The mechanism causing this was not entirely clear but it was often observed in practice. He said that a whiplash injury might remain symptomatic for a very long period of time in perhaps 42% of cases. Apart from physiotherapy, acupuncture and mild analgesics, his opinion was that there was nothing else likely to assist in her management.
Dr Jungfer saw the plaintiff in May 2010. Her diagnosis was of an adjustment disorder with depressed and anxious mood. She thought that the plaintiff would benefit from five sessions with a clinical psychologist, and that her prognosis from the perspective of her psychological disorder should be relatively good with such treatment.
Reports tendered for the defendant
Professor Mellick saw the plaintiff in November 2009. He expressed the opinion that all of the plaintiff’s symptoms could be explained as a result of superficial muscular and ligamentous strain, and associated stress-related symptoms. He found no signs or symptoms of any underlying organically determined disorder indicative of a traumatic cause related to the car accident. Specifically, he said that there was no rationale enabling him to connect the symptoms which caused the reduction of work at the end of 2006 to any physical cause related to the car accident. In the same way, there was no reasoning which linked the car accident to the reduction of hours in 2007 or 2008. He seems to have been influenced in arriving at this conclusion by an incorrect assumption, that the plaintiff ceased work finally, not by reason of any symptoms caused by the car accident but because of her hysterectomy.
Professor Mellick thought that the chronic pain described as present from the end of 2006 was part of a somatoform disorder. Any muscle strain which might have occurred as a result of the car accident had long since fully resolved.
As to the pre-existing degenerative changes in the plaintiff’s cervical spine, Professor Mellick described these as an inevitable consequence of the aging process. The overwhelming proportion of individuals with such changes at the plaintiff’s age were free of any symptoms. He had a copy of Dr Coyle’s report and disagreed with Dr Coyle’s opinion. Unfortunately, as I have mentioned, I do not have the advantage of a copy of Dr Coyle’s report and do not know precisely what his opinion was.
Associate Professor Youssef saw the plaintiff in October 2010. Professor Youssef’s opinion was that the plaintiff had suffered soft tissue injuries to the neck and wrist in the car accident, which resolved within a few months. Her complaints, for example in October 2005, and subsequently, were unrelated to the car accident. He took the view from the history available to him that the major reason for the plaintiff giving up work at Canberra Grammar School was illness of other family members. He thought that the plaintiff, when he saw her, was physically fit to work in her pre-accident employment. He expected that she would experience intermittent symptoms of neck pain because of her underlying degenerative disease but did not think that these would be sufficient to prevent her from working. He thought that she was capable of using a vacuum cleaner, cleaning the showers and attending to other household chores. There was no reason why she could not, in his view, use a hair dryer, read or play video games, or ride her bicycle. She did not in his view require regular assistance with heavy shopping. Any discomfort she might experience from prolonged sitting was due to her underlying degenerative disease and not to the car accident. Her alleged disabilities were in his view out of proportion to any impairment, and in particular to her underlying cervical degenerative disease.
Dr Langeluddecke, psychologist, saw the plaintiff in December 2010. She accepted that the plaintiff suffered from possible mild anxiety in relation to motor vehicle travel, not at a level sufficient to warrant psychological treatment. Otherwise she thought that there were no long-term cognitive or emotional sequelae to the motor vehicle accident which might impact on either her employability or her capacity to undertake university studies. She thought it highly unlikely that the plaintiff’s resignation from Canberra Grammar School had been due to any accident-related injuries or conditions, and her opinion was that the plaintiff did not require any domestic or care assistance due to accident-related symptoms. She was evidently influenced by her assessment in the course of her consultation that the plaintiff’s pain behaviour appeared contrived and that her complaints of pain lacked credibility. Put another way, she does not seem to have accepted the plaintiff as a truthful or reliable historian.
Dr Virginia Pascall, occupational physician, saw the plaintiff in March 2010. She provided a 16-page report, followed a year later by a supplementary report responding to various reports served on behalf of the plaintiff.
Notwithstanding her acknowledgment of, and agreement to be bound by, the code of conduct for expert witnesses under rule 1200 of the Court Procedures Rules 2006, Dr Pascal appeared to see her role as almost that of an investigating detective. Her reports read more like a set of written submissions than expert opinions based on assumptions.
Dr Pascall incorrectly assumed that the plaintiff had required physiotherapy in June 2001 for neck pain. The contemporaneous records show that the treatment at that time was for a hip disorder, not the neck. Dr Pascall took the view that the period of time the plaintiff had gone without neck pain seemed to be diminishing prior to the car accident. In fact, apart from the reference in 2003 to neck pain fifteen years earlier, the plaintiff had only two episodes of neck pain which required physiotherapy treatment, in April 2003 and July 2004. Neither was sufficiently serious to take her to a doctor and the evidence is that she had no neck pain after July 2004 until the car accident.
Dr Pascall thought that the plaintiff probably aggravated the degenerative changes in her cervical spine in the car accident, as well as sustaining a musculo-ligamentous injury. However, in Dr Pascall’s view, the aggravation subsided over time and had ceased during 2006 or possibly earlier. Thereafter, Dr Pascall took the view that the plaintiff’s continuing complaints were a consequence of her work circumstances and her degenerative cervical spine, with the car accident playing no part. She accepted that the plaintiff’s capacity for work was restricted at the time she saw her, but in her opinion this was not attributable to the car accident. The car accident had caused nothing more than a temporary aggravation of a progressive degenerative condition which would have caused symptoms in any event.
Dr Pascall accepted that the plaintiff was unable to return to her pre-injury work in the foreseeable future. She accepted the possibility that surgery would eventually be necessary. She thought that the plaintiff had the capacity to return to her sociology studies and to complete her degree.
Dr Pascall also accepted that the plaintiff required domestic assistance for cleaning, including vacuuming, mopping, sweeping, scrubbing bathrooms and window-cleaning, for about three hours a week. She did not accept that this need had been caused to any extent by the car accident. With appropriate treatment, she thought that the plaintiff would not need assistance of that kind for more than six months.
Dr Pascall was later provided with copies of the medico-legal reports obtained by the plaintiff’s solicitors. In particular, she found herself in disagreement with Professor Champion. This was in part because of a mistaken assumption she made about a diagram in the physiotherapy notes from Ms Lad’s practice. Partly also, she took the view that Professor Champion had based his opinion on the false assumption that the plaintiff had been asymptomatic in her cervical spine prior to the car accident. She regarded the fact that the plaintiff had required physiotherapy for her neck a little over a year before the car accident as contradicting that assumption. She disagreed with Professor Champion’s finding that radiculopathy was present, and also disagreed with his opinion about central sensitisation of nociception. Her opinion was that if such a condition was there, it would have been well established by the time of the car accident.
Consideration of the evidence
As I said during the closing address of senior counsel for the plaintiff, I accepted her as a completely honest witness. I did not think that she was exaggerating or embellishing her case. Her credibility was not the subject of any serious challenge during cross-examination, and counsel for the defendant did not seek to persuade me in address that I should not accept any of the plaintiff’s factual evidence. I accept the plaintiff’s evidence and that of her husband.
There was no real challenge by the defendant’s doctors to anything in the reports of the plaintiff’s treating practitioners. The difference of opinion between the medical experts was between those on each side qualified for medico-legal purposes. The principal competing theses were those on the plaintiff’s side, in particular through Professor Champion, that the car accident has been the cause, or at least a major cause, of the plaintiff’s continuing neck, shoulder and right arm symptoms, and her headaches; and the opinion of the defendant’s doctors that the car accident caused symptoms for a closed period, perhaps until 2006, and that thereafter her complaints have been caused solely by the pre-existing degenerative condition of her cervical spine.
The plaintiff’s own evidence, which I accept, is that she had had no neck symptoms for more than a year before the car accident, and that since the car accident her neck pain has never gone away. The opinions of Professor Mellick, Associate Professor Youssef and Dr Pascall in support of the closed period theory depend upon the assumption that there was a time after the car accident when the neck symptoms cleared up, followed by a gap of some time before further neck symptoms arose. It is probably sufficient for me to dispose of the closed period theory on the basis that the assumption made by those practitioners is at variance with the evidence I have accepted from the plaintiff herself.
I should go further and say that I have found the opinion expressed by Professor Champion in his reports to be compelling. He is clearly highly qualified and experienced in the area of pain management following rear-end motor vehicle collisions in particular. I accept that he carried out more extensive physical testing during examination of the plaintiff, and that the area concerned is one of particular interest to him as a practitioner and as an academic. His opinion is the more persuasive because he is less dogmatic about his conclusions than the defendant’s doctors, but explains why he arrives at each conclusion on the balance of probabilities.
Subsequent to his first report, Professor Champion was provided with copies of the reports of Professor Mellick, Professor Youssef and Dr Pascall. He explained in convincing terms why he disagreed with each of them and why he adhered to his original opinion.
The psychological sequelae of the accident form a relatively minor part of the picture, but in that area I prefer the opinion of Dr Jungfer to that of Dr Langeluddecke. I reject the finding by Dr Langeluddecke that the plaintiff may have contrived her pain behaviour, or that the history she gave was other than accurate. Dr Langeluddecke’s opinion that it was highly unlikely that the plaintiff’s resignation from her position with Canberra Grammar School in 2009 was due to accident-related injuries was not pressed by counsel for the defendant in his closing submissions. He conceded that the car accident was at least a cause of the resignation. In brief, Dr Langeluddecke’s opinion must fall with her factual assumptions, in particular that the plaintiff was not presenting genuinely to her during her consultation, and was not giving her an accurate history.
I have previously referred to the practice adopted by counsel in this case of tendering medical evidence in report form despite sharp differences of opinion between practitioners on each side: Hughes v Janrule Pty Ltd [2010] ACTSC 5 at [89]; Noble v O’Brien [2010] ACTSC 29 at [38], following remarks on the same issue by Miles CJ in Goldsborough v O’Neill (1996) 131 FLR 104. As in those cases, I assume that the various expert witnesses would have adhered to their opinions if cross-examined. I do not draw any adverse inference against either party by reason of permitting the tender of the reports of the other side and forgoing the opportunity for cross-examination.
Both parties tendered economic loss reports. The plaintiff relies on a report by Mr GW Davis of Macquarie Reporting Services. Mr Davis is qualified as an accountant, with degrees in Economics and Commerce, and has practised for a number of years as a financial loss analyst. The defendant relies on a report by Mr RV Ivey, also a practicing accountant with many years of experience in financial analysis. Regrettably neither report is of much assistance in my task. As frequently happens in matters of this kind, Mr Davis was asked to make a set of assumptions, many of which were considerably more favourable to the plaintiff than can be justified by the evidence. Mr Ivey was asked to make assumptions considerably less favourable to the plaintiff than the evidence justifies: for instance, that neither the plaintiff’s decrease in working hours after the accident nor her resignation from her employment at Canberra Grammar School, nor her decision to discontinue her university studies, were causally related to the car accident.
I have been able to use some of the information gleaned from both reports, for example as to salaries and superannuation arrangements in the Commonwealth Public Service, but the point should be made that considerable effort and expense goes into the preparation of such reports, and that they can be useful to the Court only to the extent that the assumptions on which they are based correspond to the findings of fact at trial.
Factual findings
I am satisfied that prior to the car accident on 6 September 2005 the plaintiff had had only a few minor episodes of neck stiffness and pain, which had resolved with one or two sessions of physiotherapy and had not required attendance on a medical practitioner. I am satisfied that she had had no neck symptoms for fourteen months before the accident.
I am also satisfied from the oral evidence and photographs of the damaged vehicles showing where the plaintiff’s car came to rest, that the collision was a severe one, with the impact producing considerable force.
I am satisfied that from the time of the car accident the plaintiff has suffered neck pain of varying intensity continuously. The pain has been aggravated from time to time by activities such as computer use and reading, because of the static posture of the neck which those activities involve. Other aggravating activities have been heavier housework, and lifting and carrying even quite moderate weights. I am satisfied that the principal reason the plaintiff resigned from her job at Canberra Grammar School in January 2009 was her neck pain, particularly the increase in her symptoms upon her return to work in October 2008. I also find that the neck pain has been the cause of the plaintiff not being employed gainfully since February 2009.
The neck pain has also been the reason the plaintiff has not returned to her university studies.
I accept the plaintiff’s evidence that she has been incapacitated for heavier housework since shortly after the car accident because of her neck pain.
I accept the opinion of Professor Champion that the car accident aggravated pre-existing degenerative changes in the neck which had been asymptomatic for the previous fourteen months, and generally asymptomatic with the exception of a couple of relatively minor episodes. I am satisfied that the car accident caused a significant acceleration of the degenerative process, and also the development of a chronic pain syndrome. I find that the plaintiff has been substantially incapacitated for work, certainly since February 2009, because of her injuries in the car accident, and that she is likely to remain so for the foreseeable future.
I am not satisfied that the plaintiff suffered a head injury in the accident. I am not satisfied that her low back problems are causally related to the car accident. Her other physical injuries generally resolved within a few months of the accident. I accept, however, that she has suffered a mild adjustment disorder, causing some depression and anxiety of mood, and in particular anxiety associated with car travel. This has persisted, though slowly improving over the years since the accident. It will probably continue to improve but persist at a reducing level indefinitely.
I am satisfied that if it had not been for the car accident, the plaintiff would probably have remained in her employment at Canberra Grammar School, working at least 19 hours per week, from January 2009 until she completed her Arts degree, which she would probably have done by the end of 2011.
I think that it is more likely than not that she would have succeeded in her aim of obtaining graduate entry to the Commonwealth Public Service early in 2012, commencing at APS 3 level. She would probably have pursued that career to about the age of sixty-five. She would more likely than not have been promoted beyond the APS 3 level, but the evidence does not enable me to make more specific findings as to the level she might have reached or as to when promotions might have occurred.
On the evidence the plaintiff retains some residual capacity for work, though not full-time work. She might at some time in the future get the opportunity to exercise that capacity to earn income, although having regard to her age and her level of disability I would not be particularly optimistic that she will choose to do so or succeed in obtaining paid part-time employment.
I take account of the evidence that the plaintiff may decide to submit to cervical spinal injections. She will probably continue with physiotherapy from time to time, and will also require analgesic medication. I accept that she may eventually come to surgical decompression and I accept Professor Champion’s opinion that the likelihood of surgery in the future is somewhere between 20% and 50%.
Damages
Senior counsel for the plaintiff, invited to put a figure for general damages for pain and suffering and loss of enjoyment of life, submitted that an appropriate figure would be $100,000.00. Counsel for the defendant did not put a range but suggested that something less than $80,000.00 would be more appropriate.
I am persuaded that the figure claimed on behalf of the plaintiff, $100,000.00, is a figure which properly reflects the impact of the car accident upon the plaintiff, and I award that amount. I apportion half of the amount to the past, and allow interest over the period of seven years and five months since the accident, at the rate mandated by authority of 4% per annum, with the past component spread evenly over the period. I allow $7,500.00 for interest.
Treatment expenses to the date of trial were agreed at $2,456.00. The plaintiff will have spent money on analgesics and perhaps further physiotherapy since then. In the absence of specific evidence about it, I allow $3,000.00 for past treatment expenses. There is no claim for interest on that component.
In arriving at a figure for future expenses, I need to weigh in the balance the possibility that the plaintiff will have future treatment, perhaps including surgery although if this happens it may not be for quite a number of years. I allow $8,000.00 for future treatment expenses.
I adopt the approach put by senior counsel for the plaintiff in written closing submissions in relation to the claim for past loss of earnings. The plaintiff’s loss for the 2009 calendar year was $18,184.00.
For 2010 and 2011, while the plaintiff would continue to have been employed at Canberra Grammar School, her loss is calculated at $19,951.00 per year. For 2012, when she would probably have started work in the Public Service, at level APS 3 she would have earned $768.00 net per week, or $39,936.00 per year. Her loss for 2012 is therefore that figure, and for the first month of 2013 is $3,072.00.
For past loss of earnings I accordingly award an amount calculated as follows:
2009 $18,184.00 2010 $19,951.00 2011 $19,951.00 2012 $39,936.00 2013 $3,072.00 $101,094.00
Each of those annual loss figures attracts interest at the set commercial rate of 9% per annum. For interest I allow $15,000.00.
The plaintiff also lost the benefit of the 30% discount on her younger son’s school fees for 2009 and 2010, which was worth $8,180.00 to her. I allow that amount, plus interest at the commercial rate in the sum of $2,000.00.
The plaintiff was born in February 1962, giving her fourteen years of future notional working life in the Public Service to age sixty-five. The multiplier for fourteen years at 3% is 598. Senior counsel for the plaintiff submitted that I should allow half of the product of that multiplier and $768.00, the rate of pay at APS 3, to allow for vicissitudes both positive and negative. It seems to me that that approach operates fairly, not to say generously, to the defendant, and I allow $230,000.00 for loss of earning capacity for the future.
A claim is made for loss of superannuation benefits for the past and future. At Canberra Grammar School the plaintiff was receiving an employer contribution of 13.7%. In the Commonwealth Public Service she would now be receiving 15.4%. Applying those percentages to the annual losses set out above, I award $14,580.00 for past loss of superannuation benefits.
For future loss of superannuation benefits I award 15.4% of $230,000.00, that is $35,420.00.
As to the claim for the commercial value of services required by the plaintiff and provided primarily if not entirely by her husband, counsel for the defendant concedes that $25.00 per hour is an appropriate hourly rate. I am satisfied on the evidence that the claim made by senior counsel for the plaintiff in closing submissions of five hours a week is justified. The past component attracts interest. I allow $50,000.00 for the past Griffiths v Kerkemeyer component, including interest. I allow $60,000.00 for the future.
The individual components of the award are therefore:
General damages $100,000.00 - Interest on past $7,500.00 Past expenses $3,000.00 Future expenses $8,000.00 Past loss of earnings $101,094.00 - Interest thereon $15,000.00 Loss of discounts on school fees $8,180.00 - Interest thereon $2,000.00 Loss of superannuation benefits – past $14,580.00 Loss of earning capacity – future $230,000.00 Loss of future superannuation benefits $35,420.00 Griffiths v Kerkemeyer – past $50,000.00 – future $60,000.00 $634,774.00
Upon consideration, that total seems to me to represent a proper reflection of the impact of the defendant’s negligence on the plaintiff. There will be judgment for the plaintiff for $634,774.00.
I shall hear the parties as to costs, in case there are factors to be taken into account of which I am presently unaware.
I certify that the preceding one-hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 31 January 2013
Counsel for the plaintiff: RL Crowe SC & AR Muller
Solicitor for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: SH Pilkinton
Solicitor for the defendant: DLA Piper
Date of hearing: 8, 10 August 2011
Date of judgment: 31 January 2013
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