Luttrell v McLennan
[2005] TASSC 79
•19 August 2005
[2005] TASSC 79
CITATION: Luttrell v McLennan [2005] TASSC 79
PARTIES: LUTTRELL, Debra Therese
v
McLENNAN, Adam
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 588/2003
DELIVERED ON: 19 August 2005
DELIVERED AT: Hobart
HEARING DATE: 26 – 29 July, 1, 2 August 2005
JUDGMENT OF: Blow J
CATCHWORDS:
Damages – Particular awards of general damages – Tasmania – Whiplash injury – Secondary chronic pain condition – Hospital clerk aged 47 at trial – Impaired earning capacity – Award including $55,000 for pain and suffering etc.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: C H Hobbs
Respondent: P L Jackson
Solicitors:
Appellant: C H Hobbs
Respondent: Jackson & Tremayne
Judgment Number: [2005] TASSC 79
Number of paragraphs: 58
Serial No 79/2005
File No 588/2003
DEBRA THERESE LUTTRELL v ADAM McLENNAN
REASONS FOR JUDGMENT BLOW J
19 August 2005
This is an assessment of damages in relation to a whiplash injury. On 19 November 2001 the plaintiff was driving along the Brooker Highway, but had stopped in a line of traffic, when the defendant negligently drove his vehicle into the back of hers. She suffered a whiplash injury as a result. She brought an action for damages. Interlocutory judgment has been entered by consent for damages to be assessed. The plaintiff has not made a full recovery from her injury. There is a dispute between the parties as to the extent of her incapacity, and as to the extent of the impairment of her earning capacity.
Background
The plaintiff was 43 years old at the time of the accident and is now 47 years old. Before the accident, she was working full-time as an admissions clerk at the Royal Hobart Hospital. She had a second job doing part-time cleaning work three nights per week. Her husband was a professional horse trainer until 10 July 2005, and carried on business as a horse trainer in partnership with her. Outside the working hours of her two jobs, the plaintiff spent a great deal of time in activities involving horses. She has two adult children, both of whom had left home before the day of the accident, and three grandchildren. She devoted much of her leisure time to her grandchildren. She also undertook most of the housework relating to the matrimonial home prior to the day of the accident. This included a lot of the heavier work, such as lawnmowing.
Before the accident, the plaintiff had worked hard for many years. During her teenage years, she worked in a service station from 1973 to 1976. She worked as a part-time cleaner at the Royal Hobart Hospital for about four years when her children were young. She left to do more lucrative part-time cleaning work. She worked full-time as the manager of a service station from 1983 until 1994, when the business was sold. She was out of work for only about three months before obtaining a full-time position at the Royal Hobart Hospital as a hospital aide. In or about February 1998 she obtained a position at the hospital as a level 3 admissions clerk. After about 18 months in that position, she was promoted to the position of a level 4 admissions clerk. That was the position that she held at the time of the accident.
The period since the accident
Ambulance officers attended to the plaintiff on the morning of the accident. A cervical brace was applied. She was placed on a stretcher and transported to the Royal Hobart Hospital. She spent about three hours at the outpatients clinic there. She was discharged with medication and a cervical collar.
The following day she went to see her then general practitioner, Dr Bruce. No x-rays had been taken on the day of the accident. Dr Bruce referred the plaintiff to Calvary Hospital for cervical x-rays and further assessment. He also prescribed anti-inflammatory and analgesic medication, and referred the plaintiff for physiotherapy.
The plaintiff undertook physiotherapy treatment for about six weeks. She continued to experience significant pain in the neck and left shoulder, with symptoms affecting her left arm. She was referred by Dr Bruce to a rheumatologist, Dr Graeme Jones, in February 2002. He referred her to an anaesthetist, Dr Robert Jones, who on 15 February 2002 treated her with a cervical facet block which provided some relief. Dr Graeme Jones arranged for this procedure to be repeated by Dr Robert Jones on 8 April 2002.
On 15 April 2002 the plaintiff returned to work on a part-time basis. She has not resumed full-time work since her accident, nor has she returned to the position that she held as an admissions clerk. However she returned to work on a trial basis, working part-time, on six occasions between April 2002 and early 2004. The Motor Accidents Insurance Board ("MAIB") arranged for rehabilitation services to be provided for her by Insite Solutions (Tas) Pty Ltd until the second anniversary of the accident. The six return-to-work trials involved placements in positions within the Department of Health and Human Services, which has a policy of facilitating the return to work of employees who have been injured or disabled.
The first return-to-work trial involved the plaintiff working at the dieticians' clinic of the Royal Hobart Hospital. Amongst other duties, she was required to take telephone calls from diabetics, and to record information that they gave her about their blood sugar readings. She did this for about 1½ hours at the beginning of each day. She held the telephone receiver against her ear with her shoulder so that she could use both hands to turn pages and make notes. Although she was only required to work something like 12 hours per week, she experienced increased neck symptoms, swelling and numbness of the left hand, and pain in her back, and ceased work after two or three days.
At about this time, the plaintiff stopped seeing Dr Bruce and started seeing another general practitioner, Dr Majchrzak. At her request, he referred her to another rheumatologist, Dr Francis, for a second opinion. She saw Dr Francis for the first time on 6 June 2002. He referred her to an anaesthetist, Dr Paton, for a denervation procedure, which was performed on 18 July 2002. This resulted in a substantial improvement in her neck and arm symptoms lasting several months.
During July 2002, the plaintiff returned to work on a trial basis for the second time, working in the medical records section of the Royal Hobart Hospital. To a large extent, her position involved getting out patients' histories and filing new material in them. Initially she worked three hours per day on three days per week. After seeing Dr Francis on 28 August 2002, her hours were increased, first to four hours per day on three days per week, and then to four hours per day on four days per week from 16 September 2002. On 1 October 2002 Dr Francis advised the plaintiff to undertake a three-month course of physiotherapy, which she did. Because of some absences due to illness, and a concern that the physiotherapy would result in increased pain symptoms and a decreased tolerance in relation to work task duration, it was decided that the plaintiff would work for four hours per day on three days per week as from 3 October 2002. The plaintiff saw Dr Francis again on 20 December 2002. He approved an increase in her hours to 20 hours per week. The increased hours of work resulted in an increase in her neck and shoulder symptoms. On 15 January 2003, her hours were changed to six hours per day on Mondays, Wednesdays and Fridays. It was hoped that her symptoms would improve if she worked only on non-consecutive days. From 19 February 2003, her hours were reduced to 12 hours per week. On 13 March 2003 her symptoms were so bad that she ceased work.
The plaintiff's third trial return-to-work placement was with "Child and Family Services" at St John's Park. She started working there on 2 June 2003. Initially she worked four hours per day on four days per week. From 1 July 2003 she worked four hours per day on five days per week. She was required to do light office work, including photocopying and running messages. She did not experience an exacerbation of her symptoms, but the placement was only ever intended to last for two months. The plaintiff successfully completed that return-to-work trial.
The plaintiff's fourth work placement after the accident was in the corporate services division of the department. She commenced work in that position on 7 August 2003. In that position she worked for four hours per day, on up to five days per week. That trial came to an end on 25 August 2003. Arrangements were made for her to attend a computer training course on 27 and 28 August. She attended on the first day, but did not return on the second day because of an exacerbation of her symptoms, which she attributed to sitting in a fixed position for too long on the first day.
In early September 2003 the plaintiff was offered work in a part-time position at Kingston on a trial basis, working three hours per day on five days per week. She refused that work because she did not consider that the time and expense of travelling to Kingston was worthwhile for three hours' work per day. In late September 2003 she missed some appointments with her rehabilitation consultant because of high pain levels. In early October 2003 the consultant approached her about a position within the department in "Pharmacy", working a total of 30.4 hours per fortnight on two consecutive days per week. According to the consultant, the plaintiff said she was not interested "as it was not for 20 hours per week". According to the plaintiff, she expressed concern that the position was for less than 20 hours per week, but did not say she was not interested. I think there may have been a misunderstanding between the plaintiff and the consultant. Having regard to the efforts that the plaintiff made to return to work, I doubt that she would have gone so far as to refuse point blank to consider the position in question.
The plaintiff's fifth return-to-work trial commenced on 13 November 2003. This time she worked in the "Divisional Support Unit Hospital and Ambulance", initially for 15 hours per week. She was told that the position was to be advertised after she had worked in it for three months. On 11 December 2003 Dr Francis certified that the plaintiff was able to work a four-day week. However the plaintiff did not continue in that position because a more promising one became available.
In January 2004 the plaintiff commenced work in her sixth post-accident position, this time in the neonatal clinic of the Royal Hobart Hospital, working five hours per day on four days per week. This position involved light clerical work including computer work, sorting babies' histories, running errands, and answering the telephone. The plaintiff noticed an increase in symptoms, and began taking more medication. She was reviewed by Dr Francis on 18 March 2004. He took the view that she was unfit to continue working in that position. She ceased work then, and has not done any paid work since.
In a note addressed "To Whom It May Concern" dated 12 April 2005, Dr Francis expressed the view that it would be appropriate for the plaintiff to work "two days a week (not sequential days) as a ward clerk at Royal Hobart Hospital". However the department's redeployment officers have not made any further offers of work to the plaintiff. The plaintiff has made a number of applications for employment outside the department, as well as maintaining contact with the department with a view to arranging redeployment in yet another position, but without success.
In June 2004 the plaintiff applied to the Retirement Benefits Fund Board ("the RBF Board") for a temporary incapacity pension. At the request of the Board, she was examined and assessed by a consultant occupational physician, Dr Tim Stewart. Her application was successful. The Board began paying her a temporary incapacity pension, backdated to 19 May 2004. Following a review by Dr Stewart this year, the Board decided to terminate her pension with effect from 8 August 2005.
Shortly before the trial, the MAIB arranged for the plaintiff to be kept under surveillance for several days. Someone videoed her activities on 13, 14, 15 and 18 July. An edited videotape was made available to her solicitor/counsel, and tendered by him as an exhibit. The video runs for a little over 16 minutes. It reveals that the plaintiff drove from her home to a stable at Brighton in the early morning on each of the days that she was filmed, and that she did some light physical work there. She was filmed carrying a saddle, a bucket, a bridle and other items; wheeling and emptying a wheelbarrow; loading it with sawdust; putting petrol into her vehicle at a service station; and carrying a small bag of shopping with her left hand. The video was shown to four doctors who gave evidence for the plaintiff, and to two doctors who gave evidence for the defendant. The four doctors who gave evidence for the plaintiff all said that her activities were consistent with their opinions, whereas the two doctors who gave evidence for the defendant both took the view that, contrary to opinions that they had formed when they examined the plaintiff, the video revealed that she was fit to return to unrestricted full-time work. The plaintiff explained what she was doing at the stable at Brighton on the day she was filmed, as follows. Her husband had just abandoned his business as a trainer, and had vacated his stables. She had a horse that had a problem with one leg. She needed to keep the horse in a dry stable, bathe the leg with salt and water, rub cream into it, and lightly exercise the horse. She therefore arranged for the horse to be kept in a friend's stables for a short time. The work that she did in caring for the horse involved carrying weights of only a few kilos, using a light aluminium rake to rake sawdust from the stall, and using a wheelbarrow that had been modified so as not to aggravate her symptoms. She worked at her own pace, and in accordance with the advice of Dr Francis.
The plaintiff continues to experience pain and discomfort in the left side of her neck, the left shoulder, the left arm, the left hand, and the ring finger and little finger of the left hand. She has a tendency to lift the left shoulder to make herself more comfortable, but has realised that back pain results if she does that. The level of pain and discomfort fluctuates. It can be exacerbated by exertion, or by repeated minor physical movements while maintaining a fixed physical position. Thus, for example, her symptoms might be aggravated by driving for a long period, or by doing computer work for a long period without sufficient breaks. She has been taking anti-inflammatory medication and pain killers ever since the accident. Ever since the accident her symptoms have interfered with her ability to undertake physical activity with her grandchildren, her ability to undertake housework, and her ability to undertake activities associated with horses. Her symptoms and their consequences, particularly the loss of full-time employment, have caused the plaintiff considerable frustration and distress, but it is not suggested that she suffers from any psychological or psychiatric abnormality.
The medical evidence
It is common ground that the plaintiff did not suffer from any relevant pre-accident medical condition; that she genuinely experiences pain symptoms; and that she is incapacitated for work to some degree as a result, but that she retains a residual capacity for work. The extent of her incapacity and the severity of her symptoms are matters of dispute.
The plaintiff's principal expert witness was her treating specialist, Dr Francis. In his view the plaintiff's initial injury was a whiplash injury to the cervical spine, and that led to the development of a secondary condition which he called a chronic pain condition. In his view the whiplash injury itself has largely resolved, whereas the chronic pain condition is her major problem, and one that is likely to continue. His views were succinctly stated in a report dated 14 May 2004, which includes the following:
"At times she can be virtually pain free. Her average day she wakes of a morning with a little stiffness in the left side of her neck. If she does a lot of heavy lifting activity with her left arm then she will get left sided neck pain. If she does driving or hanging the washing or other static loading activities she will get more of an ache down into the hand with some increase in symptoms in the third and fourth fingers.
If she controls her activity profile she paces herself nicely through the day with minimal problems.
She does still require the Tramadol slow release 100mgs twice a day and does still take the Voltaren 50mgs twice a day.
Objective assessment today shows that the neck movements are full. There is no neurological deficit although she feels that there is a slight numbness sensation in the left third and fourth fingers. There is no wasting and there are no reflex changes.
The ongoing history is most consistent with a static loading problem affecting her left arm, possibly with a minor contribution and nociceptive input from her neck. It is not consistent with a C5‑6 problem being particularly relevant in her presentation.
I do not think that she has done any significant damage to her neck. Her measurable impairment in the neck is zero.
She does not have a fixed neurological deficit. She has a secondary problem which probably had some contribution from the neck [and] now has a life of its own associated with static loading. This is her major disability for return to full function.
She is certainly capable of working twenty hours a week through the second half of this year and onwards. The only limitation is static loading (sustained postures with the left shoulder and arm). With the exception of this plus some minor limitations on heavy lifting (buckets of water etc) she is quite capable of functioning as she currently does.
The fact that there are limited job opportunities for her is not a medical or legal issue. It is a social construct.
She does not require any further procedures now or in the future.
I consider that the situation is basically stable with little likelihood of change into the foreseeable future although if she is careful over time she may accommodate the whole process with a slightly better functional outcome.
The prognosis is relatively fixed with potential for easy aggravation of symptoms with a lot of heavy lifting or a lot of static loading activities.
Operative procedures and treatments will not become necessary because of her current problems.
She will only need to see her general practitioner for prescriptions. She will be on her Tramadol slow release 100mgs twice a day. She can get an authority prescription for a month and five repeats thereby requiring her to see her general practitioner every six months.
She will not require specialist review.
She will not require further investigations.
As already stated there are no further interventions.
She will not require physiotherapy or physical therapy.
…
Her current level of impairment is not measurable. It is symptom related and activity related.
I do believe that she does have a [sic] occupational limitation with permanent restrictions on static loading and heavy lifting.
I do not consider there is a potential for increased curtailment of vocational capacity or deterioration into the future."
In a proof of evidence that was tendered on the trial, Dr Francis explained his views as to the nature and causes of the plaintiff's chronic pain condition, as follows:
Chronic pain is caused by a change or changes to the nervous/central nervous system following an initial injury which causes central sensitisation. This is a process by which the nerves from the injured site convey the message of pain to the central nervous system for so long that biochemical change in the nerves occurs and the message of pain continues after the healing process has occurred and where there is no longer a physical origin, as healing is complete and no new damage is occurring. A common, easily understood, example of chronic pain are [sic] the phantom pains experienced by amputees, who often experience pain in a limb which has been amputated and no longer exists.
There is no adequate treatment for chronic pain which will result in permanent resolution of the condition. Whilst the understanding of medical science of pain mechanisms has improved substantially in recent years, our understanding is nevertheless limited and our knowledge is not translated into adequate therapy and treatment. Chronic pain is therefore permanent and irreversible, at least given the current state of medical science. It is for this reason that pain management clinics offering pain management programs to assist persons suffering with chronic pain conditions have been established throughout Australia and throughout the world. The purpose of these programs is to establish a multi‑disciplinary approach to assist people in coping more effectively with management of their chronic pain.
When investigating and treating a patient who has chronic pain a medical practitioner does not necessarily expect to find, on diagnostic investigation, identifiable pathology. The healing process has often concluded and no observable damage remains. In the absence of some skeletal or disco‑genic damage any organic cause will not be identifiable by diagnostic investigation. Current medical technology cannot locate and identify the type of damage to the nerves, nerve pathways and central nervous system considered responsible for chronic pain. Hence, the absence of identifiable significant pathology does not mean that there is no medical explanation in organic terms for symptoms a patient is experiencing."
Dr Francis gave evidence to the effect that the rehabilitation process for a worker with a static loading problem is one involving trial and error, and the gentle exploration of the limits of the patient's capabilities. He explained that, once the patient's limits have been established, one can expect that, if the patient lives within those limits, things can slowly improve to some extent in the future.
Another medical expert who gave evidence for the plaintiff was a consultant occupational physician, Dr Sharman. He did not treat the plaintiff, but examined her in November 2004 for the purpose of a medico-legal report. His diagnosis was one of a kinetic injury to the cervical spine, affecting the facet joints at C4/5 and C5/6 on the left hand side. He considered that her condition was reasonably stable, but that she might require further treatment by way of facet blocks or physiotherapy. His prognosis was for a continuation of her current level of symptoms, with the possibility of some improvement with treatment. He believed her neck condition involved a continuing sensitivity to static neck postures which would limit her capacity to work in clerical or other keyboard related employment. He considered that her limit was working about 20 hours per week, with the flexibility to change posture frequently and a good ergonomic set-up in her workplace. He thought she would have difficulty with the sustained periods of strenuous upper body muscle activity that would be involved in some cleaning duties, eg, using a vacuum cleaner. He thought she would be fit for part-time work for up to four hours per day in positions that do not involve strenuous upper body activities or sustained postures. He suggested that she might be able to work as a retail sales assistant, provided there was no manual handling of items weighing more than a few kilograms. He said she needed to avoid prolonged periods of keying in, and that it would seem that 10 or 15 minutes at a time was her limit. He thought there was no great risk of further deterioration, and that she would need to continue to take medication to control her symptoms.
Dr Graeme Jones gave evidence for the plaintiff. He last saw her as a treating specialist in April 2002, but he saw her again for the purpose of this case in October 2004. Following that appointment, he considered that there was objective evidence of facet joint involvement at C4/5 and C5/6 following the accident. He thought her treatment was reasonable, but that she should have another denervation, and that she might need to have one every one or two years. He considered that her condition had stabilised. He thought that, without further treatment, there would be a slow deterioration as she developed post-traumatic arthritis. He considered her unfit for work, but thought that she should be fit for at least half-time work following a denervation. He agreed with Dr Francis that static loading would make her symptoms worse. He thought that she should not lift more than 5 kilograms, and that she should not be exposed to prolonged static posturing as in computer work. He saw no prospect for improvement over time.
Dr Paton gave evidence for the plaintiff. He first saw her in June 2002 before the denervation, and last saw her in September 2002, some nine weeks after the denervation. In a report that he wrote in March 2003, he said that she should continue to improve; that she would need to pace herself; that she would need to return to the workforce in a graduated fashion with modified duties; that he would be reluctant to support her returning to her previous cleaning activities; that she would need to instigate a regular low impact exercise program; that she would need to take analgesics on an intermittent basis at times of aggravation of pain; and that there would be times of increased discomfort, particularly related to stress or excessive physical activity. He thought it was likely to be necessary to repeat the denervation procedure every 12 months or so for several years. The evidence indicates that Dr Francis was equally optimistic at the time Dr Paton's report was written.
Dr Francis, Dr Sharman, Dr Graeme Jones and Dr Paton all expressed similar opinions about the edited surveillance video. Dr Francis said that the plaintiff's activities in the video included some elements of static loading, but that the duration of activity was quite short, and not inconsistent with the statements he had made concerning her over the previous 12 months or so. Dr Sharman said there was nothing in the video scenes that was inconsistent with the information reported to him by the plaintiff, and nothing that caused him to change the opinions he had expressed. Dr Jones referred to the plaintiff's activities in pushing the wheelbarrow, emptying it, and shovelling sawdust into it. He said he expected that she would experience increased symptoms if she undertook such activities for 15 minutes or more, but that he noted that those activities took place over approximately two minutes, with a break. The video did not cause him to change his previously expressed opinions. Dr Paton said he would support the plaintiff undertaking the type of activity depicted in the video; that he was of the opinion that more repetitious, static type activities on a sustained basis should be avoided as they would aggravate her condition; and that his previously expressed opinions remained unchanged.
Dr Tim Stewart gave evidence for the defendant. He examined the plaintiff for the purpose of reports to the RBF Board in June 2004 and February 2005. Copies of his reports are before me. Each of them comprises an RBF form with printed questions and handwritten answers. It appears that Dr Stewart completed and signed the first one on 15 June 2004, but then thought that he had better find out what opinions Dr Francis held, caused the RBF Board to obtain a report from Dr Francis, read that report, which is dated 25 July 2004 and not before me, added a little to his report, and again signed and dated it on 2 August 2004. On the basis of Dr Francis' report, he considered that the plaintiff had a capacity for work; that she should be able to participate in a return-to-work at her place of employment; that she should start off in a part-time capacity and upgrade; and that the return-to-work program should include restrictions on left arm usage. Unlike the plaintiff's treating specialist, he considered that the plaintiff's condition would not continue to affect her permanently. When asked to explain how the medical condition would affect her, he wrote, "There is no incentive for this lady to get better; needs resolution of medicolegal process". At one point, he wrote that the plaintiff was "currently unable to work", but on the next page he wrote that she was "probably capable of part-time work".
In his February 2005 report, Dr Stewart wrote, "I suggest that obtaining employment will be difficult until a settlement for her injury has been achieved". When asked, "Will the medical condition continue to permanently affect the applicant?", he ticked "No", and commented that "… a finalisation of her claim will be a positive solution". He stated that the plaintiff was fit for retail work and other light manual work, either full-time or part-time. In his previous report he had said that she was unfit for any full-time work. Although he acknowledged that there had been no change in her condition since his first report, and no further investigation of her condition, he had changed his mind as to the important question of her fitness for full-time work, but he did not say why he had changed his mind.
A proof of evidence signed by Dr Stewart and dated 20 July 2005 was tendered. It included the following:
"9I clearly detected that she was very much living with the problem that she believes she has. She has seen many doctors concerning her condition and that has been a very big part of her life. Once her claim has ended I believe her life will become normal again and her capacity to cope with any pain she may have and return to work will improve. Having said that, her pain is quite manageable and I believe that she manages it quite well. When I last saw her she was not seeing anyone apart from her general practitioner and all that he was doing was prescribing analgesics. There was no physiotherapy, exercise classes, nor facet joint injections. As I said earlier, all her symptoms are entirely subjective.
10She is greatly influenced by Hilton Francis and what he says about various things concerning her condition.
…
14Based on the freedom of movement she exhibited and her capacity to undertake the work shown on the video I believe that she could return to work as a clerk at the Royal Hobart Hospital. I do not believe that her symptoms are a handicap to her. The symptoms do not give rise to a disability, that is, she is able to work in a normal manner with no handicap arising from any symptoms that she may have.
15Had Mrs Luttrell been prepared to be more positive about her condition she could have been working before this as a ward clerk, in a stable or of course in retail. She could do so without worsening her condition."
I found Dr Stewart's evidence quite unimpressive. He has no qualifications in psychology or psychiatry. Yet on the strength of his first examination of the plaintiff he apparently formed the view that there was a substantial psychological component to the plaintiff's symptoms and that they would abate when she received an award of damages. He did not know her. He did not know what a hard-working and industrious individual she was. In cross-examination he said he had a "feeling" that resolution of the medico-legal process would allow the plaintiff to begin to move forward again, and that she would be a great deal better for that. He said he based his feeling on the plaintiff's subjective symptoms not being supported by objective findings, the plaintiff's frustration at the length of time the medico-legal process was taking, and her agreement with the concept that she would like to return to some income generating activity in the future. In my view an expressed desire to return to work does not lend any support to Dr Stewart's conclusion, nor does the absence of objective evidence of pain when a patient's pain is accepted as genuine, as it is in this case. It seems to me that Dr Stewart jumped to the conclusion that there was a psychological component to the plaintiff's symptoms without any proper assessment of the evidence for and against such a conclusion. Further, I note that he was initially so respectful of Dr Francis and his opinions that he refrained from expressing any view about the plaintiff until he had seen a report from Dr Francis, whereas it was implicit in his proof of July 2005 that Dr Francis' opinions were wrong, and that there was an iatrogenic component to the plaintiff's symptoms resulting from the influence of Dr Francis. Then there is the inconsistency between his two reports in relation to the capacity of the plaintiff to undertake full-time work, when her condition did not change between the two reports, and there was no new information available at the time of the second report. Dr Stewart's assessment of the video evidence did not take into account the simple fact that fitness to do a couple of minutes' light physical work, not involving static loading, does not necessarily mean that a patient is fit to undertake full-time work in a position involving static loading, or to undertake full-time work at all. The conclusions that Dr Stewart expressed after viewing the video seem also to be conclusions that he has jumped to. I also found it unimpressive that Dr Stewart, in his proof of July 2005, criticised the plaintiff for disclosing to prospective employers that she had suffered an injury and had a claim pending. In my view it is reasonable for someone in the plaintiff's position to disclose any disability that is likely to cause difficulties, or to require special arrangements, when seeking employment. It seems extraordinary that Dr Stewart, a physician with an interest in rehabilitation, would not be more concerned about the risk of a worker taking on inappropriate employment, or taking on employment without making reasonable arrangements to minimise the risk of pain symptoms being aggravated.
The other medical witness called by the defendant was Mr Gordon Stuart, a very experienced Brisbane neurosurgeon. He examined the plaintiff at the request of the MAIB in May 2002, August 2003, and May 2004. In a report dated May 2002, he expressed opinions that the plaintiff had suffered a whiplash injury to her neck with referred pain in her left hand; that such injuries usually resolve in less than two years; that her treatment had been adequate; that active rehabilitation should be continued; that he did not perceive any psychogenic potentiation or non-organic factors; that he considered the plaintiff's motivation to be satisfactory; that her short term prognosis was uncertain, but her long-term prognosis good; and that she would be able to make a gradual return to full duties. In August 2003 he expressed opinions that the plaintiff suffered from chronic pain following the whiplash injury; that she should undergo assessment at a multi-disciplinary pain clinic and receive education in pain management techniques, rather than continue to reply upon narcotic analgesics so long after her injury; that he could see no physical reason why she was unable to resume her full work duties; that active rehabilitation and employer involvement were desirable; that her prognosis in the short term was poor and in the longer term uncertain; and that she appeared to be unable to work for longer than 20 to 25 hours per week in her then state. In May 2004, Mr Stuart expressed opinions that the plaintiff suffered from chronic pain following a whiplash injury; that she should be treated at a multi-disciplinary pain clinic; that he found no abnormality on physical examination which would prevent her from returning to work; that active rehabilitation was highly desirable; and that her prognosis was poor in the short term and uncertain in the long term. In October 2004, after reading a number of reports from Dr Francis, Mr Stuart wrote a report in which he said, "… there is now no possible causal connection between the motor vehicle accident and Ms Luttrell's current presentation. I consider that her symptoms should have resolved prior to this date". He also said he did not consider that there was any residual disability as a result of the accident, but I take that to be a comment on causation, rather than the plaintiff's condition at that time. He referred to "persistent symptoms beyond normal expected duration and the absence of physical findings" and recommended that consideration be given to the use of pain management techniques, rather than ongoing pharmacological treatment. In a report of November 2004, Mr Stuart expressed agreement with Dr Graeme Jones' conclusions, except in relation to post-traumatic arthritis. Those conclusions included opinions that the plaintiff was unfit for work; that there should be limitations on her work preventing her from lifting over five kilograms and preventing prolonged static posturing; that improvements were unlikely given the length of her symptoms; and that the motor vehicle accident was the sole and major cause of her current symptoms. After viewing the surveillance video, Mr Stuart signed a proof of evidence in which he expressed opinions that the plaintiff "is influenced by what she is told by people like Hilton Francis"; that "she does not have an impairment"; that he did not believe that her pain is disabling; that she is "able to use her arms normally"; that he did not believe that there is "any physical reason why she could not perform her work as a clerk at the Royal Hobart Hospital"; that the "static loading argument" was just a theory, and that he did not accept that there was any substance in it; that the plaintiff should attend a pain management course if she continues to suffer from pain; and that if people have chronic pain resulting from a compensable injury and do not return to work, that is not because of a medical reason, but depends on attitude.
Dr Graeme Jones was the only medical expert who expressed the view that arthritis might result from the plaintiff's neck injury. All of the other experts took the view that it was a soft tissue injury, and none of them expressed the view that her symptoms were likely to deteriorate. I am therefore satisfied that there is no significant risk that the plaintiff will develop arthritis as a result of the accident, and that her condition is unlikely to deteriorate, save for the possibility that occasional inappropriate activities might result in the temporary aggravation of her symptoms.
Mr Stuart was the only medical expert who expressed the view that there was no causative link between the accident and the plaintiff's current symptoms. It may be that he has a different approach to causation from that of the common law. There is no evidence that the plaintiff's current symptoms have been caused by any event other than the accident, nor by any medical condition, explicable or inexplicable, that is not the result of the accident. The collision caused the whiplash injury, and it somehow caused the chronic pain condition to develop, though the mechanism by which it did so is not understood by medical science. The fact that most whiplash patients do not continue to have symptoms so long after the accident does not lead to the conclusion that the chronic pain condition results from some other cause. Even if the plaintiff's symptoms would not have endured but for psychological factors, the prolongation of the symptoms as the result of psychological factors would not break the chain of causation. I am satisfied that the plaintiff's ongoing symptoms have been caused by the negligent driving of the defendant.
Dr Paton, Dr Jones and Dr Sharman all apparently believe that the plaintiff might benefit significantly from one or more further denervation procedures. It is clear from the reports of Dr Francis that he thought in March 2003 that another denervation might be appropriate at a later date, but that he has believed since at least May 2004 that no further intervention of that nature would be appropriate. He was not asked by either counsel why he now believes that no such intervention will be needed. Perhaps the plaintiff's counsel did not go into that aspect of the matter because it was hoped that damages would be awarded to compensate the plaintiff for the cost of another denervation. Although Dr Francis gave no evidence on the point, his evidence was fairly thorough in other respects, and I think it proper to infer that, to put it simply, in his view a denervation would be appropriate only to relieve the symptoms of a soft tissue injury to the neck, whereas the plaintiff's symptoms are no longer those of a soft tissue injury to the neck, but those of chronic pain condition. Dr Francis has some advantages over the other medical witnesses. He has seen the plaintiff more often than any of them. He has monitored her condition and treatment through the various work trials. Apart from being a rheumatologist, he is the only expert witness in the case with expertise in pain management, having practised in that area since 1992, and having been a Fellow of the Faculty of Pain Management of the Australian and New Zealand College of Anaesthetists for some five years. His view that another denervation is unnecessary is, of course, shared by Mr Stuart and Dr Stewart. I am satisfied that the plaintiff will not need another denervation procedure.
When cross-examined about the suggestion that the plaintiff might benefit from a pain management course, Dr Francis said he thought she had achieved all the goals that a pain management program would give somebody. Because of his expertise in pain management and the extent of his involvement with the plaintiff's symptoms and treatment, I accept that evidence in preference to the evidence of Mr Stuart on that point.
In reaching their conclusions as to the plaintiff's capacity for work, I think Mr Stuart and Dr Stewart failed to give adequate weight to the fact that the video depicted the plaintiff undertaking physical work for only a very short time and at her own pace, and undertaking only very light physical work. I think the plaintiff was an honest witness. I accept her evidence as to what she was doing, why she was doing it, the tempo of the work, and the lightness of the work. The four doctors who viewed the video and gave evidence for the plaintiff, particularly Dr Francis, are in a better position to evaluate the plaintiff's capacity for work than the defendant's experts because of the extent of their contact with the plaintiff and their various areas of expertise. I think the views of both Mr Stuart and Dr Stewart were overly dependent on the fact that there is no objective or physical evidence that provides any explanation for the plaintiff's symptoms. That is not surprising for a patient with a chronic pain condition. I think Mr Stuart's views were also overly dependent on the fact that most patients with whiplash injuries make full recoveries within a couple of years. No doubt some do not, and the plaintiff seems to be one of those who has not.
In simple terms, I am satisfied that the plaintiff's symptoms, incapacity and prognosis are as described by Dr Francis. I am satisfied that she has made reasonable attempts to return to work.
Impairment of earning capacity
Mr Jackson submitted on behalf of the defendant that this was not a case in which damages for economic loss should be assessed using a mathematical approach. He submitted that a "broad brush" approach was appropriate. He made that submission on the basis that, if a mathematical approach were adopted, more uncertainties than usual would have to be allowed for in this case. Although the plaintiff had been working at the Royal Hobart Hospital for 6½ years before the accident, and although she continues to be an employee of the Department of Health and Human Services, she has only ever been a temporary employee. Her position would have been advertised within months after the accident. Any suitable permanent employee on the department's redeployment list who applied for the position would have been given priority. Whilst it was likely that the department would have found the plaintiff another position if she had lost that one, it would probably have been at a lower level since a temporary employee does not have a substantive level, and since there are very few level 4 positions for which the plaintiff has appropriate qualifications or experience. Apart from her hospital position, the plaintiff was doing part-time cleaning work, as I have said, but she had only been doing that work for about 12 months, and there is a degree of uncertainty as to how long she would have continued to do that sort of work as a second job. She had not always had a second job. Some temporary employees at the Royal Hobart Hospital become permanent, but many do not, and many continue as temporary employees for years before becoming permanent. There are also a number of uncertainties regarding the plaintiff's residual earning capacity. I believe she will never be fit to return to full-time work, and that she will have trouble exploiting her capacity for part-time work because of the unavailability of suitable positions and the reluctance of employers to engage someone of the plaintiff's age with a chronic pain problem. If the plaintiff does return to work, it is very difficult to predict when she will do so, how many hours per week she will work, or the salary level of any future position.
Whilst all these uncertainties make the assessment of damages for the impairment of the plaintiff's earning capacity by means of a mathematical approach difficult, I do not think they make it inappropriate. The only alternative is to arrive at a figure by some sort of process of intuition. I think that would involve too great a risk of injustice in a case like this. I think such a course is usually only appropriate when a plaintiff has suffered a relatively minor impairment of his or her earning capacity.
Past impairment of earning capacity
The plaintiff adduced evidence as to the earnings that she would have received if she had retained her employment as an admissions clerk and as a part-time cleaner ever since the day of the accident. The plaintiff's solicitor/counsel provided particulars containing detailed calculations of the net earnings that the plaintiff would have received if she had continued in those two positions until trial, making allowance for income tax, annual leave loadings, and award wage increases. There is no dispute as to the accuracy of those calculations. Those calculations show that the plaintiff would have earned $122,912.79 after tax from 19 November 2001 to 25 July 2005, and would presently be earning $686.38 per week after tax. On that basis, I calculate the earnings that she would have received to today's date as follows:
Earnings to 25 July 2005
$122,912.79
Plus 3.8 weeks at $686.38 per week
2,608.24
Total to date
$125,521.03
This figure needs to be discounted to make allowance for adverse contingencies. There is a strong chance that the plaintiff would not have retained her position as a level 4 admissions clerk to the present day. It might have been filled by someone else from the department's redeployment list within months of the date of the accident, or at some later time. It might have been advertised as a permanent position, and filled by another applicant chosen according to apparent merit. If the applicant had lost that position, it is very likely that she would have obtained another full-time position at the Royal Hobart Hospital, perhaps after an interval of weeks or even months, but most likely with little or no time away from work. However, because there are few level 4 positions for which she is suited by education, training or experience, she would more likely have obtained a level 2 or level 3 position. It is not very likely that she would have returned to level 4. There is a chance that she might have obtained a level 3 position, but it is also quite possible that she might never again have risen above level 2. It is quite likely that she would have remained a "temporary" employee, in which case she would have been at risk of losing positions, and of becoming unemployed or underemployed, throughout the last 4 years. However, since she had been working at the hospital as a temporary employee in various positions for 6½ years before her accident, had been promoted, and was apparently performing well, I do not think there is much chance that she would not still be working at the hospital. There is some chance that she might have lost or relinquished her cleaning work by now. However I think it more likely that she would still be working in a second job, especially since she was the breadwinner in her household, and the profitability of her husband's horse training business declined over recent years to such an extent that the business had to be abandoned. I do not think there are any favourable contingencies that need to be taken into account since the plaintiff was unlikely to obtain employment at the hospital in a position above level 4, was unlikely to find more lucrative work elsewhere, and was unlikely to want to work longer hours in a second job.
Evidence was adduced as to what the plaintiff would have earned in level 2 or level 3 positions if she had lost her level 4 position. If still employed at level 4, she would now be earning $40,417 per annum gross. If now employed at level 3, she would be earning $37,234 per annum gross, which is about 92 per cent of the level 4 salary. If now employed at level 2, she would be earning $32,994 per annum gross, about 82 per cent of the level 4 salary. If still employed at level 4 and in the cleaning job, her gross income as a cleaner would be $5,216 per annum, or about 11.4 per cent of her taxable income. These figures are gross figures. If the plaintiff had not been injured, and her gross income had been reduced by 10, 20 or 30 per cent for one reason or another, the corresponding decrease in her net income would have been a slightly smaller percentage. That is because her marginal percentage tax rate would have been greater than her overall percentage tax rate.
Taking all these matters into account, I think it appropriate to discount the figure that the plaintiff would have earned if she had continued her pre-accident employment to the present day by 17.5 per cent to allow for adverse contingencies. To calculate the plaintiff's damages for the past impairment of her earning capacity, it is necessary to take into account her net earnings on the six occasions that she returned to work. I must also take into account the interim invalidity pension paid by the RBF Board: State of Tasmania v Wilson [2000] TASSC 152. The plaintiff also received payments of disability allowance by way of scheduled benefits pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s27 of which requires those payments to be taken into account. There must also be an adjustment of $10,712 in the plaintiff's favour in respect of the tax paid on her disability allowance: Fox v Wood (1981) 148 CLR 438. I will deal with the claim in respect of superannuation benefits separately. Subject to adjustments in relation to the disability allowance and Fox v Wood, I assess the plaintiff's damages for the past impairment of her earning capacity as follows:
Hypothetical earnings since accident
$125,521
Less 17.5 per cent
(21,966)
Balance
$103,555
Less net earnings from work trials
(5,371)
Less net payments from RBF Board
64 weeks @ $452.64 per week
(28,969)
Amount awarded
$69,215
Impairment of future earning capacity
The plaintiff gave evidence that, prior to the accident, she intended to work until she was 65 years old. A woman of her age will not be eligible for an age pension until her 65th birthday: Social Security Act 1991 (Cth), s23(5D). She was the breadwinner of her household. She and her husband seem to have little by way of assets. They live in rented accommodation. I am satisfied that the plaintiff, but for her accident, would have made every reasonable effort to remain in full-time employment until she was 65. In fact I think it likely that, if she had not been injured, she would have supplemented her age pension by working, at least part-time, after her 65th birthday, subject to appropriate work being available, and I take that factor into account as a favourable contingency. As I have said, if she were still working in the two jobs that she had at the time of the accident, her net earnings would now be $686.38 per week. The amount required to compensate her for the loss of that amount for the next 18 years, adopting a discount rate of 7 per cent in accordance with the Common Law (Miscellaneous Actions) Act 1986, would be calculated as follows:
$686.38 x 543 = $372,704.34.
The multiplier of 543 does not allow for mortality: Luntz, Assessment of Damages, 4th ed, 683, Table 2. The appropriate multiplier, if allowance is made for mortality, is 532.6 Luntz, supra, at 699, Table 4D.
To arrive at a figure representing the value that the plaintiff's pre-accident earning capacity would have had if she had not been injured, it is necessary to allow for various adverse contingencies as well as mortality, including illness, injury, unemployment, underemployment, early retirement, voluntary absence from the workforce, and strikes. In the plaintiff's case, there is not a strong chance that she would have chosen to retire early, or to absent herself from the workforce, given that she is the breadwinner of the household, and given her financial circumstances. However, there must be some chance that she would have done one of those things if, for example, her husband were to find lucrative full-time work, or one of her grandchildren were to need a full-time carer. Unemployment and underemployment are significant factors in her case. I take into account all that I have already said as to her status as a part-time employee, the availability of work at levels 2, 3 and 4, and the chance of her losing or relinquishing her cleaning job. The plaintiff left school during Grade 9. She has had no further formal education. She might have undertaken computer training or other significant training or retraining. If she had lost or relinquished her cleaning work, she might thereafter have taken on part-time cleaning work or some other sort of second job intermittently. Her earnings might have fluctuated according to what work was available at the Royal Hobart Hospital or elsewhere from time to time. Taking all these factors into account, I think the approximate value that the plaintiff's earning capacity would now have had, but for her injuries, should be calculated by discounting the figure of $372,704 by 25 per cent.
I think the plaintiff's residual earning capacity should be measured by reference to the amount that she could earn if she were to return to work as a level 2 employee working 20 hours per week. If she were to return to work full-time as a level 2 employee, she would earn $32,994 per annum before tax, and be entitled to a 17.5 per cent annual leave loading for 4 weeks per annum. Under the Community and Health Services (Public Sector) Award, which was tendered as an exhibit, a full-time employee works 38 hours per week, and a part-time employee is paid on a pro rata basis according to his or her weekly working hours. I calculate that the leave loading of a full-time employee would amount to $444 per annum. The plaintiff would therefore earn $33,438 per annum, inclusive of that loading, if employed full-time, or $17,599 per annum if working 20 hours per week. If $17,599 were her taxable income, she would have to pay income tax of $1,971.83 at current rates, and a Medicare levy of 1.5 per cent or $263.98: CCH Australian Master Tax Guide 2005, pars 2-330, 42-005. Her net income would therefore be $15,363.19 per annum, or $295.44 per week. The present value of such an income for 18 years, adopting the multiplier 543 used above, is calculated as follows:
$295.44 x 543 = $160,423.92.
There are favourable contingencies that need to be taken into account. The plaintiff may return to work and obtain work at level 3 or level 4, or similarly well paid work in the private sector, at least intermittently. However, those favourable contingencies are more than offset by the adverse contingencies. Death, sickness, injury and strikes must be taken into account. But, more significantly, there are very strong risks that the plaintiff will never return to the workforce, or that she will return to it only for a short time, or that she will return to it only intermittently, and there is a very strong risk that, if she does return to work, she will not be able to work anything like 20 hours per week for much, if not all, of the time that she spends in the workforce in the future. She is lucky to work for a large employer with a benevolent policy towards employees who have been injured or disabled. I think it likely that, given time, she will return to part-time work, more likely with the department than in the private sector, but that the need to avoid situations that aggravate her symptoms, and the risks associated with the trial and error procedure described by Dr Francis, will operate to her disadvantage. Taking these matters into account, I estimate that the plaintiff's residual earning capacity is worth about 50 per cent of the present day value of the income that she would have if she worked as a level 2 employee for 20 hours per week until the age of 65 years. I therefore assess her damages for the impairment of her future earning capacity, leaving aside superannuation, as follows:
Present value of $686.38 per week for 18 years
$372,704
Less 25 per cent
93,176
Balance
$279,528
Less residual earning capacity (50 per cent of $160,423)
$80,211
Amount awarded
$199,317
Superannuation
The plaintiff adduced actuarial evidence as to the amount that would be required to compensate her for the loss of superannuation entitlements. If, but for the accident, she would have continued in her pre-accident employment at the hospital and as a cleaner until her 65th birthday, and if her earning capacity had been totally destroyed by the accident, the amount required to compensate her for the superannuation entitlements resulting from her employment from the day of the accident until her 65th birthday, discounted with a 7 per cent discount rate for payment 18 years early, would be $55,577.03. Having regard to my earlier calculations, I think it appropriate to discount this figure by 40 per cent to allow for contingencies, and for the plaintiff's residual earning capacity. I will award $33,346 under this head.
Past travelling expenses
It is common ground that the plaintiff has incurred $345.80 in travelling expenses as a result of her injury, mostly for the purpose of medical treatment. She has been fully reimbursed by the MAIB by way of scheduled benefits. Her expenditure and the reimbursement must both be brought into account because of the provisions of the Motor Accidents (Liabilities and Compensation) Act, s27.
Future medical expenses
Dr Francis has said that the plaintiff will need to see her general practitioner at intervals of about six months to obtain prescriptions. The amount required to reimburse her for an attendance on a general practitioner every six months for the rest of her life, adopting the required discount rate of 7 per cent, is $1,416.20. I think this figure should be discounted because she might stop obtaining prescriptions, or might obtain them when seeing a general practitioner for other purposes. I will allow $1,000 under this head in respect of visits to a general practitioner. Since Dr Francis says the plaintiff will not need to see a specialist or have another denervation procedure, I will not allow anything else under this head.
Future travelling expenses
The plaintiff has claimed $50 under this head. That claim is not disputed. I will allow it.
Future medication and pharmaceutical expenses
To relieve the symptoms of her chronic pain condition, the plaintiff takes Tramadol and Voltaren, and uses heat packs. Her current expenditure on these things is reasonable. If the pattern of her usage of these things does not change for the rest of her life, the amount required to compensate her for their cost, adopting a discount rate of 7 per cent, would be $7,350. There is a chance that her use of these medications and/or the heat packs will reduce as time goes on. I will therefore allow only $6,000 under this head.
Health Insurance Commission reimbursement
The Health Insurance Commission ("HIC") has served a notice on the MAIB in respect of payments by it totalling $393.85. It is common ground that this sum should be added to the damages payable to the plaintiff.
Past medical expenses
As well as the disability allowance that I have referred to, the MAIB has paid the plaintiff $13,272.31 by way of scheduled benefits in respect of medical and associated expenses. Since contributory negligence is not in issue in this case, it would be simpler to ignore those payments. However, I think I should do what s27 requires. I will take into account both the medical expenditure and the total of the scheduled benefits paid by the MAIB in calculating the plaintiff's damages.
Pain and suffering and loss of amenities
The plaintiff's chronic pain condition has substantially interfered with all aspects of her life – her work, her housework, her recreational activities involving horses, and her physical interaction with her grandchildren. A number of witnesses described the transition that she has made from a busy confident individual to a relatively inactive unhappy one. I am satisfied that she will suffer from this condition to a significant degree for the rest of her life and that, as a result, no aspect of her life will ever be what it could or would have been. I am conscious of the fact that her activities involving horses would have been significantly limited by the abandonment of the horse training business, but I think it is significant that she had little or no social activity before the accident other than social activity centring on horses. Had she not been injured, I think horses would have formed the centre of her social activity following the abandonment of the training business, but that sort of social activity is now very much restricted as a result of her pain condition. In all the circumstances, I think the plaintiff should recover $55,000 under this head.
Conclusion
It follows that the plaintiff should recover damages calculated as follows:
Pain and suffering, etc
$55,000
Past impairment of earning capacity
69,215
Fox v Wood damages
10,712
Future impairment of earning capacity
199,317
Superannuation
33,346
Past travelling expenses
346
Future medical expenses
1,000
Future travelling expenses
50
Future pharmaceutical expenses
6,000
HIC reimbursement
394
Past medical expenses
13,272
Sub-total
$388,652
Less payments by MAIB
(64,918)
Balance
$323,734
I order that final judgment be entered for the plaintiff against the defendant for $323,734.
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