Maja Seta v Geoffrey Baker
[2012] ACTSC 75
•18 May 2012
MAJA SETA v GEOFFREY BAKER
[2012] ACTSC 75 (18 May 2012)
PERSONAL INJURY – assessment of damages – causation – injury to lumbar spine – credit of plaintiff – pre-existing vulnerability – extent of ongoing disability – inferences drawn from failure to call potential witnesses.
Jones v Dunkel (1959) 101 CLR 298
Payne v Parker [1976] 1 NSWLR 199
Ibrahim v Pham [2007] NSWCA 215
Manly Council v Byrne (2004) NSWCA 123
No. SC 707 of 2009
Judge: Sidis AJ
Supreme Court of the ACT
Date: 18 May 2012
IN THE SUPREME COURT OF THE )
) No. SC 707 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MAJA SETA
Plaintiff
AND:GEOFFREY BAKER
Defendant
ORDER
Judge: Sidis AJ
Date: 18 May 2012
Place: Canberra
THE COURT ORDERS THAT:
- Verdict and judgment for the plaintiff in the sum of $179,409.
- The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
- The exhibits are to be returned.
- My reasons are published.
On 12 September 2006 Maja Seta was the front seat passenger in a Kia sedan car driven by her father when it was struck by the defendant’s Holden utility while negotiating a roundabout. The defendant admitted negligence but challenged the plaintiff’s claim on a number of grounds.
The issues were
1 The way in which the accident occurred;
2 The causal connection, if any, between the accident and the condition of the plaintiff’s lumbar spine;
3 The extent of the plaintiff’s ongoing disability resulting from the accident;
4 The compensation, if any, to be awarded for general damages, loss of income earning capacity, out of pocket expenses and domestic care.
The plaintiff’s claim
At the time of the accident the plaintiff was 14 years old. At the time of the hearing she was 20.
After the accident she was taken home where her mother gave her Panadol and she rested.
Her general practitioner at the time, Dr Southi, recorded that she consulted him on the day of the accident and once more after the accident on 20 October 2006.
The plaintiff was next treated by Dr Watson on 17 May 2007. The plaintiff complained of back pain at that consultation. Dr Watson prescribed anti-inflammatory medication and referred the plaintiff to Dr Shane Watson, chiropractor. Chiropractic treatment was provided twice weekly initially and then on an as needed basis. The plaintiff said she consulted the chiropractor two to three times in the two months prior to the hearing.
In June 2007 Dr Watson administered trigger point injections to her back. This treatment relieved the plaintiff’s symptoms for some months before they gradually returned.
The plaintiff said she became depressed because of the effect that her symptoms had on her social life and sporting activities. She became withdrawn and suffered from anxiety when travelling as a passenger in a car. Dr Watson prescribed anti-depressant medication that the plaintiff used for a short term only because of their unpleasant side-effects. She was referred to a psychologist but did not pursue this treatment.
In November 2008 an MRI scan was performed on the plaintiff’s lumbar spine. The report commented:
1L5/S1 degenerative fact joint changes and grade 1 spondylolisthesis. Suspected bilateral L5 pars defects. CT correlation recommended.
2Mild L5/S1 posterior disc bulge with a large superimposed left postero-lateral disc protrusion causing severe left foraminal stenosis and likely secondary left L5 nerve root impingement/irritation. Mild right foraminal stenosis.
In late 2010 the plaintiff bent to unstack a dishwasher. She was unable to straighten her back. She said she was in great pain on the right side of her low back and unable to move for about two minutes. When she was able to straighten, the pain continued and she had difficulty walking. The plaintiff was taken to Calvary Hospital where she was admitted overnight and treated with Endone and morphine. She was discharged with a walking stick that she used for two weeks. She said she continued to have pain and restricted movement for three weeks following this incident.
In January 2011 the plaintiff was referred to Ms Alli Watson, an exercise therapist, with the objective of undertaking exercise designed to strengthen her core muscles. The plaintiff attended for 15 sessions with Ms Watson. She said the exercise therapy provided some relief for her symptoms but did not resolve them entirely.
Current condition
The plaintiff said that prior to the accident she was fit and unrestricted in her activities. She had an active social life, attended the gymnasium five times a week, played basketball for one six month season, participated in athletics carnivals and competed in long distance running, earning medals at the regional schools level. She was a member of a Croatian dance group, practising every Monday evening and performing at Croatian clubs and on special occasions from time to time.
Prior to the accident she was able to undertake all of these activities. She suffered no injuries arising out of these activities and she had no back problems.
After the accident she ceased these activities. She did not return to basketball or long distance running because running aggravated her back pain. She did not participate in Physical Education in Years 9 and 10 and it was not part of the curriculum in Years 11 and 12.
She tried twice to return to the gym but stopped when her back pain increased. She enrolled in December 2011 at a gym in Gungahlin and attended four times in 2012. She said she could not exercise to the levels she achieved prior to the accident.
She said she returned recently to Croatian dancing, restricting her activity and taking care with some of the movements.
The plaintiff said her social life involved going to the cinema, dancing, walking on level ground and going out for dinner and dancing. She said, as a young woman, she wanted to go out and have a good time. She sometimes wore high heels but took flat soled shoes with her to change into if her back pain was aggravated. She said she could not dance for long periods.
Since the accident she had taken a three week summer holiday on the South Coast with her partner of three years, Peter Popovic. In the summer of 2011/2012 she rode in a rubber tube, described as a doughnut, with Mr Popovic while they were towed behind a boat. She described the experience as fun but she developed stiffness and pain in her back for the following two days.
The plaintiff said that the condition of her back placed some strain on her relationship with Mr Popovic. It caused some difficulties in their intimacy and she was unable to participate in the outdoor activities, such as bushwalking on hills and rock climbing, that her partner enjoyed.
The plaintiff said that she continued to suffer from back pain, the intensity of which varied with activity. She said that Dr Watson advised her to continue with exercise and she therefore returned to the gymnasium with the result that she suffered an increase in back pain.
CREDIT
The attack on the plaintiff’s credit was comprehensive. Its purpose was to undermine the extent to which the Court accepted the plaintiff’s claims that the condition of her back was the result of the motor vehicle accident and that she continued to suffer from significant symptoms as a consequence.
The topics on which her credit was attacked included:
(a) The plaintiff’s account of how the accident occurred;
(b) The point at which her back pain commenced; and
(c) The extent to which the condition of her back restricted her activities.
The accident
At the time of the accident the plaintiff was the front seat passenger in a small Kia sedan. The defendant’s vehicle was a Holden utility.
The plaintiff said that she had little recollection of the accident. She remembered that she and her father were travelling through a roundabout and that the defendant’s utility “kind of T-boned us into my side” (Transcript 14.8). The defendant’s utility impacted with the front passenger door of the Kia.
The plaintiff said she was flung on impact to the right into the centre console and she struck the console with the lower right side of her body, including her right leg and right hip. She said she felt pain in her left shoulder, right leg, right hip and the right side of her back.
The plaintiff was asked if she intended to convey that the defendant’s vehicle struck the Kia at a 90 degrees angle. She said she did not remember exactly how the accident occurred except that the Holden impacted with the side of the Kia. She denied that she told Dr Griffith that the car was thrown into the air.
It was put to the plaintiff that the Holden impacted with the Kia in a glancing sideways blow. She said she did not remember but maintained that it was her opinion that the Kia was extensively damaged.
The defendant tendered the Crash Report (Exhibit 7). The plaintiff denied any knowledge of this report or that she had any part in its preparation. The defendant pointed to the description in that report of the accident that included the following:
We were going straight and slowed down because we could see the other driver was speeding. We nearly came to a stop when the other driver hit us on the left side in the middle of the roundabout.
I understood that this was intended to convey to the court that this was not a high speed accident. I accepted that this report indicated that the Kia was not travelling at speed but it clearly stated that the Holden was travelling at speed.
Further, the report described damage to the Kia as:
Headlights, left hand side front, front of the door.
It contained a diagram that was said to show the vehicle positions prior to impact. This diagram indicated that the front of the Holden impacted with the Kia at a 90 degree angle.
The defendant showed the plaintiff the diagram provided in the Personal Injury Claim Notification (Exhibit 15) provided to the defendant’s insurer in January 2007. She denied that she prepared the diagram. I noted that diagram indicated that the front of the defendant’s vehicle impacted with the Kia at an angle that appeared to be less than 90 degrees but that it did not suggest that the impact was of a glancing sideways nature.
The defendant also relied on photographs of the Holden (Exhibit 20) that showed damage to bodywork on the right hand side of this vehicle. There were no photographs of the front of the vehicle. The defendant was not called to provide evidence of his version of the accident. It was apparent from the letter accompanying the photographs that they were extracted from an assessment report but the whole of the report was not tendered in evidence nor was the invoice for repairs that was referred to in the letter. In the circumstances, it was not possible from these photographs to conclude that there was no damage to the front of the vehicle.
None of the medical experts thought that a sideways rather than a direct impact between the vehicles was of significance to the nature of the injury likely to result from that impact. Their concern was directed at the forces involved in the impact.
On this issue I found:
1 The photographs of the Holden utility were of no assistance in deciding how the accident occurred; and
2 There was material before the court that confirmed the plaintiff’s evidence that the accident involved more than a glancing sideways blow and that the defendant’s utility was travelling at speed.
I was not persuaded therefore to reject the plaintiff’s evidence that the impact of the collision between the two vehicles was sufficient to generate forces that caused her body to move in the manner she described.
The commencement of back pain
The plaintiff claimed that the damage to her lumbar spine demonstrated by the MRI scan was the result of the accident. The defendant challenged this claim. There were three bases to this challenge.
1 Mr Jackson, the orthopaedic surgeon who examined the plaintiff at the request of the defendant, was firmly of the opinion that any pain reported more than 48 hours after an accident was unrelated to the accident.
2 Dr Southi made no note in his clinical notes of complaint by the plaintiff of back pain when she consulted him on the day of the accident or when she consulted him in October 2006.
3 Dr Watson recorded that, on first consultation on 17 May 2007, the plaintiff complained of recent back pain.
4 Dr Griffith in December 2008 reported that the plaintiff complained of relatively recent onset of low back pain.
The plaintiff maintained that she suffered back pain immediately after the accident. She explained that, in the period between October 2006 and May 2007 when she did not seek medical treatment, she recovered from injuries to other parts of her body and expected her back pain to resolve in similar fashion. When the back pain continued and progressively increased, she consulted Dr Watson.
Mr Jackson accepted that the plaintiff had a genuine problem with her lower back and that the symptoms of which the plaintiff complained were consistent with a condition in the lower back on the background of the spondylolisthesis and the degenerative L5/S1 disc lesion. He declined to accept that the condition of the plaintiff’s lower back was the result of the accident. He said he adopted a principle that symptoms that were reported more than 48 hours after an accident could not be related to the accident although on very rare occasions he extended this period for a further 24 hours.
Mr Jackson said that he did not remember what the plaintiff told him about the injury to her lower back that he noted in his initial report. He insisted that she did not tell him that she had suffered lower back pain from the time of the accident. He said that when he asked her on the second occasion when he examined her when her back pain commenced she did not reply.
The plaintiff’s evidence concerning her second visit to Mr Jackson was that it was an unpleasant experience. She questioned him about his conclusion that her back condition was not the result of the accident. She said he became angry with her and shouted at her causing her to cry. She said she told him that she had pain from the time of the accident but that when he asked again to tell him when the pain started, she was upset by his conduct and decided not to answer. She left the consulting room at that stage and he slammed the door as she left.
Mr Jackson denied that he became angry during this consultation. The transcript of this part of his evidence recorded (Transcript 281.14):
Doctor, what I want to suggest to you is that at the end of the consultation you in fact had an argument with her? --- No, it would not be an argument. I did not argue with people …
And I want to suggest to you doctor that you lost your temper and became very angry with her?--- Please, I resent that very, very much. I did not lose my temper, I did not get very angry with her. … I very strongly resent that. That is quite incorrect.
And, Doctor I - - - ? --- And that makes me very angry to think that somebody would accuse me of doing that.
The plaintiff maintained that she told Mr Jackson twice that she had back pain immediately after the accident and that she did not answer his question on the third occasion that he asked. I considered it unlikely that the plaintiff, informed that Mr Jackson rejected her claim because of the apparent delay in the reporting of symptoms of back pain, would not take the opportunity to provide the information sought by Mr Jackson. The plaintiff, although a young woman, 20 years old at the time of hearing, maintained her ground during more than a full day of extensive cross examination. I could accept therefore that her challenge to Mr Jackson’s views was forthright and that it was unlikely that she would be reduced to tears in the absence of the type of angry reaction that Mr Jackson demonstrated to the questions of the plaintiff’s counsel. I therefore preferred the plaintiff’s version of this exchange to that of Mr Jackson.
Regardless of the terms of this exchange between the plaintiff and Mr Jackson, it appeared that Mr Jackson either overlooked or was not provided with other evidence of the plaintiff’s complaints of back pain in the period between the date of the accident and her first consultation with Dr Watson. He also rejected the proposition adopted by other medical experts that injuries to other parts of the plaintiff’s body might have masked initial low back symptoms.
I considered Dr Southi’s notes to be inconclusive. They were short and made reference to pain without stating its source or the area affected. The notes of 12 September 2006, immediately following the accident read:
Today had MVA-passenger at front, another car sped along L side and lost control – ran into L side of her car. Wore seat belt. R Knee hit dashboard, pain tendr. Qads stretch—pain. Stretch voltaren gel
The notes of 20 October 2006 read:
Still tendr L upper Trap. On abd/lifting. R quads- no tendr but pain onstretch/going up stairs/run.
Not stretching reg.—physio
The plaintiff did not remember what she said to Dr Watson at the time of the consultation on 17 May 2005 but that she believed that she explained to him that she had pain in various parts of her body following the accident including the low back.
Dr Watson was asked about his clinical note, made on first consultation on 17 May 2007, that read:
recnetly strated (sic) lower back pain
Dr Watson explained that he typed clinical notes at the time of consultation with his patients or immediately after they left and before seeing the next patient. He agreed that his notes concerning the consultation with the plaintiff on 17 May 2005 did not record that she suffered low back pain immediately following the accident.
Dr Watson’s report of 17 December 2008 stated:
She suffered immediate pain to the right anterior thigh immediately. A few hours later lumbar spine pain became prominent.
...
It was after a few hours on this day of the accident when Ms Seta started to feel neck and upper back pain. She indicated that she felt an achy burning pain to her neck and upper back. The following few days a feeling of pain and stiffness was noticed afflicting neck/midback/lumbar/right thigh.
Dr Watson explained that he intended to convey in his report that the symptoms affecting the neck, upper back and the headache were immediate and that the pain in the lumbar spine was delayed. When she attended on him in May 2007 she had lower back pain. He said that the plaintiff did not tell him on that occasion that she recently started to suffer low back pain. This was something that he probably accepted in the course of the consultation. He said (Transcript 251.15):
What I would have is I would have clearly worked out that the initial symptoms were cervical whiplash, upper ... whiplash, and that’s what she noticed initially. That was the most troublesome symptoms that were affecting her initially. But as they settled down, she became more aware of the lower spine symptoms. So it’s probably an insidious, progressive increase in symptoms to her lower back, as you would expect from the MRI scan and the examination findings.
Dr Watson said that it was common in car accidents that patients focus on the initial more significant symptoms and that, as those symptoms receded, symptoms in the lumbar spine became more significant. He concluded that the plaintiff’s lower back symptoms probably came on over a few months and became the main, prominent debilitating symptom.
He agreed that he did not record that the plaintiff told him that within two weeks of the accident her lower back pain became debilitating. He said she might well have told him this but that through his error, rather than the plaintiff’s, he did not record it.
Dr Griffith said that at the time of the accident the plaintiff would have been aware of the acute effects of regional muscle spasm associated with the muscoligamentous elements of the injury rather than the disc injury itself. He agreed that there was little in Dr Southi’s notes to assist in identifying the symptoms of which she complained to him.
He agreed that if there were a delay of eight days between the accident and a complaint of back pain it was unlikely that there was immediate structural injury such as a fracture. However, as did other medical experts except Mr Jackson, he said it was common for more intrusive injuries to take priority in treatment immediately after an accident. He agreed that an eight month delay in complaint suggested that the disc lesion might have occurred after the accident. He agreed that it was unlikely that the plaintiff’s condition was caused by the accident. His opinion was that it was aggravated by it. He could not state with great certainty whether the accident made any difference to the progression of an underlying constitutional condition.
Dr Griffith was asked if his opinion would remain the same if the forces involved in the impact between the two vehicles was oblique rather than direct. He said this made no fundament difference although it would certainly have introduced a torsional element to the movement of the plaintiff’s body. The torsional and bilaterally directed forces coupled with abrupt deceleration were sufficiently significant to produce structural change in the disc. His opinion remained similarly unchanged when told that it was incorrect that the car in which the plaintiff travelled was thrown into the air and when asked if it would make a difference if that car slowed and was almost stopped at the time of impact.
Professor White said that he might revise his opinion that injury suffered in the accident was the substantial cause of her low back condition if satisfied that the plaintiff did not seek medical treatment until May 2007. He would need to discuss this matter further with her. He said the absence of complaint of substantial back pain for seven months was not of concern to him because his opinion was that the plaintiff lost stability in her lower spine and that deterioration could occur at any time afterwards.
He said it was not necessary that there be a significant amount of back pain but that pain could radiate. He thought the right hip pain of which the plaintiff complained was radiating from the back. Like Dr Griffith, he noted that acute soft tissue injuries were often of more immediate post accident concern and that it was not uncommon for back pain initially to be overlooked while attention was focussed on radiating pain.
The plaintiff was asked about the reference in Dr Griffith’s report on the consultation in December 2008 to a relatively recent onset of low back pain. The plaintiff did not know if she used the word recent. These words appeared in Dr Griffith’s report after material that recorded the treatment provided to the plaintiff since the 2006 accident, including the trigger point injections that provided her with some relief. Read in this context, it was clear that Dr Griffith was referring to the onset of low back pain when the relief from these injections was exhausted.
The defendant’s submissions in this regard overlooked a number of aspects of the evidence that supported the plaintiff’s claim that she suffered from low back pain at the time of the accident.
On 20 September 2006 the plaintiff consulted solicitors concerning the accident. At their request she completed a diagram in anatomical form (Exhibit B). The plaintiff said that she applied colour to this diagram to indicate the areas of her body in which she was experiencing pain. The darker colour indicated areas of significant pain. The lighter colour indicated areas of less pain. She marked areas on her head, left shoulder and upper chest in both colours. Significantly for this case, she marked an area across her back. She marked this area with three red dots that she said indicated where she was experiencing sharp pain, the yellow marks surrounding those dots indicated pain that was radiating out through her back. She coloured her right thigh in red to indicate the severe pain she felt after striking it on the centre console of the car and her right lower leg in yellow where the pain was less severe.
It was put to the plaintiff in cross examination that she did not mark any part of her midback on this diagram. She pointed out that this proposition was patently incorrect, the centre dot being clearly placed in the midback.
Dr Watson referred the plaintiff to Dr Shane Collins, chiropractor, for treatment. Dr Collins recorded on 18 May 2007:
Onset immediate but pain increased considerably over the next week and has since continued to slowly increase.
Ms Alli Watson, the exercise therapist, recorded in her initial assessment of the plaintiff on 25 January 2011 since accident – constant back pain (Exhibit 3).
The defendant dealt with the diagram completed on 20 September 2006 as if it established that this was the first time that the plaintiff complained of back pain after the accident. In fact it was the first document that clearly recorded that the plaintiff complained of back pain. The proximity of the date on which the diagram was completed to the date of the accident was highly significant, particularly in the light of my finding that Dr Southi’s notes did not establish that the plaintiff did not complain of back pain when she consulted him on the day of the accident.
The plaintiff’s explanation of the delay between October 2006 and May 2007 in seeking medical attention was rational. One might readily accept that a 14 year old body would recover from injuries that at the outset appeared to be musculoligamentous in nature.
The defendant did not explain why attention should be focussed on the record of recent back pain made by Dr Watson on 17 May 2007 while Dr Collins’ record on 18 May 2007 should be entirely ignored when it read:
Onset immediate but pain increased considerably over the next week and has since continued to slowly increase.
I find that there was sufficient evidence to support the plaintiff’s claim that she suffered back pain at the time of the accident.
The medical experts agreed that the plaintiff suffered from a pre-existing vulnerability in her lumbar spine. There was no evidence to indicate that she suffered from any symptoms in her lumbar spine prior to the accident.
I therefore accepted Dr Griffith’s opinion that the accident aggravated the pre-existing weakness to the point where it became and remained symptomatic.
In the absence of evidence that the plaintiff would inevitably have suffered from symptoms arising from the pre-accident condition of her lumbar spine, I find that the plaintiff has established a causal connection between the accident and the injury to her lumbar spine and to the symptoms that she continued to experience as a result of that injury.
The extent of the plaintiff’s ongoing disability
In challenging the plaintiff’s claim that she suffered and continued to suffer from disability the defendant drew attention to education and employment records, employment history, social activity and her gym work.
Education and employment records
The plaintiff was in Year 9 at the time of the accident. She returned to school two days later. She said that after the accident she had problems sitting for two to three hours at a time and this affected her concentration. She also said that after the accident she ceased active participation in physical education in Years 9 and 10 and that this was not part of the curriculum in Years 11 and 12.
The plaintiff at the time of the hearing was enrolled at university where she attended lectures for six hours on each of Tuesday and Thursday of the week. She managed discomfort by using the lumbar support recommended by Dr Griffith, changing position in her chair or standing up and walking during the lecture. If she was distracted by pain she took medication.
The plaintiff was taken to the absentee record for Daramalan College for the period from 28 February 2006 to 26 November 2007. It was put to her that this record demonstrated that, apart from the day after the accident and a partial absence on 20 September 2006 to attend her solicitor, there was no apparent absence as a result of the accident.
It was difficult to understand the relevance of this material since the plaintiff did not claim to have required extensive periods of absence from school as a result of the accident.
In any event, the record was unhelpful in determining the reason for any absence from school. It indicated that the plaintiff was away from school for 25 full or partial days in 2006 and 32 full or partial days in 2007. The day following the accident, 13 September 2006, was marked as a sick day as were many other days of absence. Other days were marked as unexplained absences or medical absences without further explanation.
I did not accept that this record provided evidence that the plaintiff required no leave from school as a result of the accident.
The plaintiff’s Semester Report for the second semester of 2006 contained the following information concerning Health and Physical Education:
Maya is a very capable student who generally participates with energy and enthusiasm. She has demonstrated a solid skills base, but needs to show more confidence when applying them in competitive situations. Maya’s exam results were disappointing, suggesting she may need to revise her home study patterns.
The plaintiff claimed that the comment that she lacked confidence indicated that she did not participate to the fullest extent in physical education.
She was referred to the report for first semester of 2007 that stated under the heading Health and Physical Education:
Maya is a very capable student who has worked to the best of her ability at all times through the semester. Due to her efforts she has obtained a very pleasing result in the Health component of the course. In practical lessons, Maya has participated at a satisfactory level, without always exploring the boundaries of her physical capabilities. An apparent lack of confidence in her athletic ability can often hinder Maya’s development in this area.
The plaintiff said that this extract reminded her that, because of her pain, she was unable to push herself to same extent as prior to the accident.
I accepted that these reports established that the plaintiff was incorrect in her evidence that she ceased all participation in physical education at school after the accident.
The plaintiff was taken to a number of documents where she denied or did not disclose the condition of her low back. They included the medical history (Exhibit 2) that she completed in February 2007 when she obtained employment with M & M Rolfe Cleaning Services and registration forms that she completed on enrolment at the Canberra Institute of Technology in 2009, 2010 and 2011 (Exhibits 10 – 13).
Again, I was uncertain of the relevance of this information in the light of the unanimous opinion of the medical experts that the plaintiff had a genuine low back condition and that her complaints of pain and discomfort were consistent with the demonstrated pathology.
However, the plaintiff explained that she did not disclose her condition as a matter of course. By February 2007 there had been no diagnosis of the cause of the plaintiff’s back pain. She said that at this time she expected that, like the other areas of her body that were affected by the accident, the back pain she suffered after the accident would ultimately resolve. She said she did not give CIT details of her condition because she did not think it was relevant to her enrolment and that disclosure of her back problem would have made no difference to the circumstances in which she was to undertake her course of study.
I noted that the plaintiff disclosed a back injury when completing a pre-exercise medical questionnaire (Exhibit D) at the time of purchasing membership of the Anytime Fitness gymnasium in January 2012. This material gave credibility to her evidence that she disclosed her back condition when she considered it relevant to do so.
Employment history
At the time of the accident the plaintiff worked at weekends in a fruit market at Belconnen. She said this work involved lifting, packing and unpacking crates of produce. She was unable to tolerate the lifting involved after the accident and obtained alternative part time employment at a fruit and juice bar at Gungahlin. This involved blending fruit and preparing juices for a few hours two to three times per week.
In February 2007 she obtained employment with M & M Rolfe Cleaning Services. Her work required her to clean offices at the National Museum of Australia for three hours on Saturday and Sunday of each week. The cleaning involved was dusting, cleaning tables and removal of office rubbish into a trolley. The plaintiff said the work aggravated the condition of her back and she changed to working one day per week with tasks that involved using a vacuum cleaner that she carried on her back. She left this job in May 2009 because the work with the vacuum cleaner was becoming more than she could tolerate.
It was put to the plaintiff that there was some inconsistency in her complaints of back pain and her taking employment as an office cleaner, particularly when she took the position that required her to work with a backpack vacuum cleaner and clean toilets. The plaintiff’s response was that she did the work with difficulty and that she did not complain to her employer of these difficulties because she wanted to retain her employment. When asked whether she was discharged from this employment because her work was not satisfactory, the plaintiff said if that was the case, it was because of the difficulties presented by her back condition. There was no evidence before the court to support the contention that the plaintiff was discharged for unsatisfactory service.
The pay records of M & M Rolfe Cleaning Services (Exhibit 17) confirmed the plaintiff’s evidence of the change from two part time weekend shifts to one part time shift on Sundays.
After leaving the cleaning work the plaintiff obtained employment as a waitress at a restaurant known as Whitebait. She said no heavy lifting was involved. She worked three to four shifts of three to six hours each week for nine months until the restaurant closed.
The plaintiff worked one shift per week for three to four weeks as a waitress at Carlo’s, a smaller restaurant. She finished this work at the end of 2009.
The plaintiff said that she was not employed for the following year, with the exception of two shifts at the Blue Gum Cafe.
In August 2011 she commenced work as a receptionist at the Gungahlin Medical Practice of her general practitioner, Dr Watson. She initially worked four to five shifts per week. This was entirely sedentary work with shifts varying from three to six hours in duration. Occasionally she worked a nine hour shift. She cut back to three shifts per week when she commenced her university course. Until she started her university course on four or five occasions she worked a shift at the medical practice that required that she undertake some vacuum cleaning. She said this sometimes, but not always, caused her back pain. Otherwise she worked at the computer and performed paperwork. She had no difficulty with this work with the exception that she found it difficult to sit for longer than three hours.
Dr Watson thought that the plaintiff should not ever undertake manual work and that she should be careful with high intensity computer work, repetitive lower limb activity, lifting more than 5 kgs repeatedly, poor ergonomics and stress. When working in his practice he imposed restrictions that required the plaintiff to take regular breaks. He gave landscaping or cleaning as the types of manual work that the plaintiff should avoid.
Mr Jackson agreed that the plaintiff was partially incapacitated for work. He said she should avoid work that involved prolonged sitting, or standing and prolonged or repetitive bending. He said she was best suited for sedentary work where she could change her posture regularly.
Social activities
The plaintiff gave evidence that since the accident she continued to participate in Croatian dancing, night club dancing, gymnasium and other activities, although not the level she enjoyed prior to the accident.
This evidence was the subject of significant challenge.
The plaintiff said that she returned to her regular routine for Croatian dancing in about December 2011. The plaintiff said that she had attempted to return on previous occasions but had not fully returned until December 2011. She agreed that she travelled on trips with the Croatian dance group and that on those occasions she participated in public performances of the dances when other group members were absent. She denied that she attended Monday night practices regularly since July 2010. She said she did not go every Monday, sometimes she attended but did not dance or she danced only part of the time. She agreed that she had not informed the medical witnesses in the case that she continued to participate in Croatian dancing since at least July 2010.
The plaintiff said there were some steps involved in this dancing that caused her difficulty. She said she attempted to perform all of the steps and it was not the case that she could not do them but that, if practice continued for an extended period, her back would start to hurt and she took breaks. The extent to which she was required to take breaks depended on the dance involved. If she was in pain she stretched, held her back, sat down or took medication.
The defendant relied heavily on DVD recordings of the plaintiff on Monday, 19 July 2010, and Monday, 26 July 2010 to argue that the plaintiff was untruthful in her evidence concerning the extent to which she participated in this activity.
The plaintiff was shown extracts of the DVD recordings. She agreed that she was shown in those recordings undertaking a number of steps and dance moves without apparent restriction or discomfort. She did not dispute that on 19 July 2007 she practised for about one hour. Her response was that she practised irregularly and with pain and discomfort after practice or the following morning. She said she was young and did not want to abandon her social activities.
Ms Markovic had been a friend of the plaintiff for five years. She was a member of the same Croatian dance group and she also went out socially with the plaintiff. She said the plaintiff told her that she was having difficulties with her back and that was the reason she was in and out of dancing and unable to perform.
Ms Markovic said that the plaintiff went to the practice sessions on most Mondays of the month but there were some occasions when she did not go or if she went, she sat and watched or took breaks. She complained about back problems. She said that the plaintiff did not participate on 50% of the occasions when she attended the practice sessions.
She confirmed that the plaintiff went on trips with the Croatian dance group that she described as more of a social experience. On some of the trips the plaintiff did not perform; on others she performed to a limited extent.
The last of those trips was to Queensland in September 2011 where the plaintiff performed one of the two dances. In June or July 2011 the group, including the plaintiff, performed one dance in Melbourne. In November 2010 the group performed in Wollongong. Ms Markovic was not asked if the plaintiff danced in Wollongong but she said that the group went on two or three trips each year and that the plaintiff performed on the majority of those trips.
Ms Markovic described social gatherings that took place on trips. She said these trips involved meetings of between 60 and 70 young Croatian dancers at clubs in the cities that were visited. They had dinner and a band performed so that they could dance, sometimes to midnight and sometimes to the early hours of the following morning. She observed the plaintiff dance on these occasions. About half the time she wore high heels and she took breaks from dancing.
Mr Popovic accompanied the plaintiff and her Croatian dance group on their trips. He said that the normal course of events was that the persons present would have supper before the dance performances. Those performances took place between 7 pm and 11 pm depending upon the number of groups that attended. After these performances they could continue to socialise at the club involved or return to their hotel. He denied that there was partying after these events.
Ms Markovic was also asked about the plaintiff’s participation in other social activities. She said she and a group of friends, including the plaintiff, would meet for coffee, dinner, lunch and very occasionally in the City on a Friday or Saturday night. She said the plaintiff mostly wore flat shoes although on some occasions she wore shoes with heels.
On rare occasions they went dancing. She described the dancing as follows:
We just sort of bop around. It’s not heavy dancing or anything like that so we take it easy each time.(Transcript 182.22)
Mr Popovic said that on some weekends he and the plaintiff went dancing. He thought this occurred six to eight times a year. He said the plaintiff danced and then they sat for the rest of the night or left early. He said that she wore high heels at the start of the night and when she experienced pain she changed into flat shoes that she had in her handbag or in the boot of the car.
Dr Griffith viewed the DVD recordings of the plaintiff’s dancing. He said it was not particularly vigorous dancing and none of the activity involved was inconsistent with a disc lesion. He accepted that the DVD indicated that there had been improvement in the plaintiff’s condition. He said she was shown to be much more comfortable when dancing two years after the accident but this did not indicate that she was fully recovered and she remained vulnerable to recurrent disc pain through activity that involved a combination of bending, lifting and twisting. He agreed that there was no indication that the plaintiff was distressed to any major degree when she was dancing and that her movements when dancing indicated that, if she now regularly undertook activity of this nature, her condition was currently relatively stable.
Dr Watson viewed the DVD recordings of the plaintiff’s dancing in July 2010. He said they depicted activity that the plaintiff should be able to undertake from time to time. He said she might suffer from pain and stiffness afterwards. He was not cross examined on these views.
The DVD recordings did not persuade Professor White to alter his opinions.
Mr Jackson was not asked to express an opinion on the DVD recordings.
Gym activities
There was much cross examination of the plaintiff concerning her activities at the gymnasium since the accident. Her evidence was that prior to the accident she attended the gym five times per week and that after the accident she attempted to return to the gym on two occasions but was discouraged when she was unable to exercise to her pre-accident levels.
She purchased membership at the Anytime Fitness gym at Gungahlin in late 2011 and said she attended a number of times since the beginning of 2012. Documents produced by Anytime Fitness (Exhibit 19) indicated that the plaintiff attended the Gungahlin gym twice in January 2012 and twice in April 2012.
She was taken at length through the type of exercises that she performed and criticised because she did not volunteer a full list of those exercises. Her response was that in her evidence in chief she was not asked to elaborate or provide a full list and she could not remember all of the exercises that she ever undertook in the course of her gym work.
Records produced by Club Lime (Exhibit 21) at Gungahlin indicated that the plaintiff attended there on five occasions in June and July 2007. She attended 24 times between February 2008 and September 2008. The plaintiff said she did not remember whether she purchased membership at this gym but agreed that she did go there at the time when it operated under the name Bodyworks. One of the documents produced by this gym referred to a record that the plaintiff on 6 June 2007 asked for payments to be suspended for the reason that she was to have a knee operation.
The plaintiff denied that she ever suffered a knee injury, had surgery on her knee or consulted a medical practitioner about her knee. She did not remember if she held a membership at this gym or if she sought to have the membership suspended.
There was no evidence to explain this record. It was not put to Dr Watson, the plaintiff’s treating general practitioner, that the plaintiff suffered from any condition affecting her knees. There was no medical record indicating that the plaintiff had problems with her knees. In the circumstances, I concluded that I should disregard the reference in the Club Lime documents to a knee operation.
Medical Evidence
The plaintiff’s treating doctor, Dr Watson, said that her symptoms when she presented to him in May 2007 were limited to those affecting her lumbar spine and right thigh. He said that the plaintiff described those symptoms as debilitating and said that they had been present for most of the time since the accident. Her sleep was affected and she therefore felt fatigued. She was suffering from mild mental health problems leading to low mood, interpersonal withdrawal, anhedonia, insomnia, agitation, poor concentration and irritability. She remained anxious when travelling in a car.
Dr Watson referred the plaintiff to Dr Shane Collins, chiropractor. He arranged for the plaintiff’s right hip to be x-rayed in September 2008. No abnormality in the right hip was detected. Dr Watson described the findings of the MRI scan of the plaintiff’s lumbar spine undertaken on 20 November 2008 as:
Degenerative facet joint changes at L5/S1 and grade 1 spondylolisthesis. There were suspected bilateral L5 pars defects and a large left poster-lateral disc protrusion causing severe left foraminal stenosis and a likely secondary left L5 nerve root impingement/irritation.
Dr Watson’s diagnoses of the injuries suffered by the plaintiff in the accident were:
1Cervical Spinal pain – mild. Recovered.
2Thoracic Spinal sprain – mild. Recovered.
3Trigger points gluteal/ilio-tibial band and anterior thigh right sided.
4Lumbar sprain - severe.
5L5S1 large posterolateral disc protrusion with nerve root compression.
6Adjustment disorder with depressed mood (DSM 4 p 301, 309.00)
Dr Watson referred the plaintiff for neurosurgical review by Dr Pik and to a psychologist. She did not pursue either of these references. In respect of Dr Pik, Dr Watson said that he was waiting for comment on the requirement for surgery. He said the plaintiff suffered a large disc protrusion that might require laminectomy.
Dr Watson said the plaintiff’s prognosis was guarded.
Dr Griffith reported in December 2008 and February 2012. There were a number of factual errors in the initial report that were corrected in the subsequent report.
In his initial report Dr Griffith questioned the accuracy of the finding of the left posterolateral disc protrusion. He noted that the plaintiff improved after trigger point injections and that she had suffered a recent onset of low back pain. He said her description of her symptoms indicated that they were not related to an acute disc lesion. Mr Jackson also pointed out that the disc protrusion was to the left of the plaintiff’s spine while her symptoms affected the right side.
Dr Griffith described the plaintiff as at December 2008 as extremely anxious when travelling in a car, particularly as a passenger. He said she was coping mentally but was frustrated by her continuing symptoms. He described the results of his examination of the plaintiff and in respect of the plaintiff’s ongoing symptoms diagnosed an aggravation of spondylolisthesis in the right lumbosacral region (Grade 1), an acute sprain of the right sacroiliac joint. If there was a disc protrusion with probable irritation of the left L5 nerve root it was largely resolved.
The sequelae of the plaintiff’s injuries, he said, were persistent chronic right sacroiliac arthralgia, grade 1 spondylolisthesis and persisting severe amaxophobia and anxiety.
Dr Griffith thought there were prospects of recovery with appropriate treatment. He provided nine recommendations for treatment. They included analgesic and anti-inflammatory medications, the use of a back support, exercise, trigger point injections to the lumbo-sacral spine and anaesthetic and steroid injection to the sprained right sacroiliac joint. He said that surgery should be considered only if these treatments failed.
In February 2012 Dr Griffith noted the treatment provided to the plaintiff since December 2008 and that she reported that there was little change in her symptoms. He was told of the dishwasher incident in 2010 that lead to hospitalisation. He again examined the plaintiff and reported the results of that examination. He said the plaintiff’s history was entirely consistent with the findings and results of radiology. He confirmed the diagnoses reported in December 2008 and made the same recommendations for treatment. He said the right sacroiliac joint was no longer of concern. He said the plaintiff’s prognosis, if an appropriate treatment program was undertaken, should be better than currently evident.
Dr Griffith agreed with Professor White’s opinion that the plaintiff suffered a stepwise deterioration of the lumbar spine.
Associate Professor White reported in September 2010 that the plaintiff had a predisposing abnormality at the L5/S1 level that was asymptomatic prior to the accident. The development of symptoms immediately after the accident indicated to him that there was a substantial stepwise deterioration in the structural stability of the plaintiff’s spine at L5/S1 with minor compromise of the nerve roots. He said the plaintiff’s persisting discomfort was likely to be longstanding and that she was exposed to significant risk of premature degenerative disease and possible neurological compromise in the future.
Associate Professor White also said that the plaintiff’s history was consistent with his findings and the radiological study. He said the plaintiff should be able to reduce her pain to some degree with appropriate care. This care included a supervised exercise program.
Mr Jackson examined the plaintiff in February 2010. He gave little attention in his findings to the plaintiff’s low back condition because he concluded that it was not causally related to the accident. He did state that his findings concerning the plaintiff’s low back were consistent with a symptomatic situation in the lower back secondary to an L5/S1 spondylolisthesis. He accepted that this condition created a partial incapacity for work and limitations on her ability to lead a normal life.
In his report of March 2012 Mr Jackson said that his physical findings were consistent with somebody with a spondylolisthesis in the lower back and that her low back problem certainly does affect her ability to lead a normal life. He recommended that the plaintiff maintain high levels of fitness with an ongoing exercise program and that she use heat packs and simple medications.
Mr Jackson confirmed in evidence to the court that he accepted that the plaintiff had a genuine problem in her lower back. He said the sciatic nerve stretch test was positive on the right on both of the occasions on which he examined her. He explained that this indicated that there was irritation to the sciatic nerve, generally in the spinal column and that this was consistent with spondylolisthesis and a degenerative L5/S1 lesion.
I noted that Mr Jackson was not asked to express an opinion concerning the activities of the plaintiff that were recorded on the DVDs.
Other credit issues
Dr Pik
The defendant submitted that the plaintiff lied to the court, Dr Griffith and staff at Calvary Hospital when she said that she consulted Dr Pik concerning the matter of surgery to deal with the L5/S1 disc protrusion.
Dr Griffith’s reported on this issue:
She was referred for opinion to back specialist who was in fact neurosurgeon Dr Justin Pik. Dr Watson’s referral notes the radiological changes and requested surgical opinion. No report is available from him.
This material was in fact absolutely true and was readily available from Dr Watson’s records with which Dr Griffith was supplied at the time of his consultation with the plaintiff.
The Calvary Hospital notes recorded:
Says saw Dr Justin Pik but his rooms says (sic) she cancelled the appointment.
Those notes also recorded that at the time of presentation on 14 December 2010 the plaintiff complained of pain at the level of 10/10.
On this aspect of the plaintiff’s evidence I accepted the submission made on her behalf that she was confused about the question of whether she consulted Dr Pik. The plaintiff was still young in years. She was referred to a number of medical specialists. She believed that one of them told her that she might need surgery. As already noted Dr Watson considered this question when he prepared the referral to Dr Pik for surgical opinion on 26 November 2008. In his report Dr Watson said:
I am waiting on comment from Dr Justin Pik about the requirement for surgery for this lady. She has suffered a large disc protrusion which may require a laminectomy.
Jones v Dunkel
The defendant relied on the principles of Jones v Dunkel (1959) 101 CLR 298 in submitting that I should draw inferences from the failure by the plaintiff to call evidence from her Croatian dancing instructor, her employers, Dr Southi and her mother.
There has been much judicial discussion concerning the way in which Jones v Dunkel is to be applied. For the purposes of this case, I noted that the principle:
1 Allows the court to draw an inference in certain, limited circumstances;
2 Unless the absence is explained, allows the court to draw an inference that the evidence of a missing witness would not help the case of the party failing to call the evidence;
3 Limits the inference that can be drawn to a finding that the missing evidence would not have helped the party that did not lead it;
4 Allows the court to have greater confidence in drawing an unfavourable inference (provided it is available from the evidence) against the party failing to call the evidence;
5 Does not apply:
(a) when the missing witness is equally available to all parties: Payne v Parker [1976] 1 NSWLR 199; Ibrahim v Pham [2007] NSWCA 215;
(b) if there is evidence that proves the case of the party that fails to call the witness: Cross on Evidence, 6th Aust Ed (2000) 1215;
(c) if the evidence of the missing witness would be only corroborative or cumulative: Manly Council v Byrne [2004] NSWCA 123;
6 A judge is entitled to elect not to draw any inference based on the failure to call a potentially relevant witness.
In this case I heard evidence from Ms Markovic concerning the plaintiff’s attendances at the Monday evening Croatian dance practices. Ms Markovic was not challenged on her evidence nor was it suggested that it was untruthful. The dancing instructor’s evidence therefore would fall into two of the categories in which the Jones v Dunkel principle does not apply: She was equally available to each party and her evidence would have been cumulative.
Similarly the plaintiff’s employers and Dr Southi were equally available to the defendant.
The plaintiff’s mother’s absence was unexplained and was a matter of concern. The plaintiff gave evidence of the occasions on which her mother attended to her when she was in pain after undertaking certain activities. Her mother might be expected to have confirmed this evidence as well as the claim that the plaintiff awoke in the mornings with stiffness and in discomfort. Importantly, she might also have confirmed that the plaintiff complained at the time of the accident of back pain.
I have already referred to evidence that supported the plaintiff’s claim of the immediate onset of back pain and to the unanimously expressed medical opinion that the symptoms of which the plaintiff complained were consistent with the pathology found in her low back. In those circumstances I elected not to draw an inference from the plaintiff’s failure to call evidence from her mother.
Summary of Credit Issues
I acknowledged that there some minor aspects of the plaintiff’s evidence that were less than satisfactory. She continued to participate in physical education, although to an apparently unsatisfactory extent, in Years 9 and 10 of her school education. There were some inconsistencies between the plaintiff and Mr Popovic concerning the doughnut incident. I considered that the effect of these aspects of the evidence overall was inconsequential.
I did not accept that the plaintiff lied about her involvement in Croatian dancing. Her evidence on this aspect was confirmed by Ms Markovic and Mr Popovic. I did not accept that there was evidence that the plaintiff participated in other social activities at a level that was inconsistent with her condition.
The employment records confirmed that plaintiff’s claim that she reduced her cleaning work from two shifts per week to one shift. No evidence was provided by the defendant to support the proposition put to the plaintiff that she was discharged from her cleaning job for unsatisfactory performance but the plaintiff indicated that such an allegation did not surprise her because she had difficulty performing the one shift that she continued with.
I did not accept that the plaintiff’s attempts to return to the gym indicated that she recovered to an extent greater than claimed. To the contrary, the indication was that she adopted the recommendations of a number of the medical experts in attempting to undertake an exercise program to strengthen her core muscles and minimise the consequences of her condition.
Finally, I took into account the objective medical evidence in which all of the medical experts suggested that the plaintiff did suffer from a genuine condition affecting her lumbar spine, that her ongoing symptoms were consistent with the condition of her back and that the dancing recorded on the DVDs was not inconsistent with her condition.
I therefore rejected the defendant’s submission that I should disregard or discount the plaintiff’s evidence concerning her ongoing symptoms and disabilities.
Assessment
General damages
The evidence to which I have already referred established that the plaintiff’s day to day life was affected by pain and discomfort. She was required to curtail her social and recreational activities at a time in her life when she would normally expect to participate to the fullest extent. She will suffer occasional episodes of acute pain. She must exercise care and ensure that she maintains a regime designed to strengthen and protect her lower spinal structure.
There was no evidence to support any ongoing amaxophobia or other psychological condition resulting from the accident.
In assessing general damages I have taken into account the plaintiff’s predisposing spinal weakness and the prospect that she might have suffered at some later stage in her life from deterioration in her lower back condition. I have also taken into account the very young age at which her symptoms developed and the extended period over which they must be tolerated as a consequence.
I assessed the plaintiff’s general damages at $80,000, allocating $30,000 to past pain and suffering and $50,000 to the future. I allowed interest in the sum of $4,125.
Income loss
I accepted the plaintiff’s claim for the loss resulting from the requirement to reduce her cleaning work from two to one shift per week. The plaintiff also claimed income loss during the 12 month period when she was not working. No reason was given for this 12 month break from employment and I was not satisfied therefore that it was the result of incapacity resulting from her back injury.
I allowed for past income loss as follows:
Income $7,125.00
Superannuation @ 9% 641.00
Interest @ 5% for 2.5 years 891.00
$8,657.00
The medical experts agreed that the plaintiff could not consider heavy manual work and that she will be restricted work of a sedentary nature where she will have the opportunity to take regular breaks from a seated position. The plaintiff was fortunate in having the intellectual capacity to pursue tertiary education that will provide her with significant prospects of securing suitable employment.
I accepted, however, that an award of a buffer was warranted to reflect the disadvantage that the restrictions proposed by the medical experts will present to the plaintiff’s prospects in the open labour market.
I considered a buffer of $50,000, inclusive of superannuation, was sufficient for this purpose.
Out of pocket expenses
I allowed past out of pocket expenses in the sum claimed of $6,752.
I considered the claim for future expenses to meet ongoing needs for chiropractic treatment, medical consultations and exercise programs to be reasonable and allowed the sum of $10,000.
Domestic Care
It was apparent that the plaintiff did not retain the capacity to undertake heavier aspects of domestic work. In those circumstances I considered the claims for the provision of past and future care to be modest and I allowed them as claimed in the sum of $13,375 for the past and $6,500 for the future.
In summary I assessed the plaintiff’s damages as follows:
General damages $84,125
Income loss 58,657
Out of pocket expenses 16,752
Domestic care 19,875
$179,409
ORDERS
Verdict and judgment for the plaintiff in the sum of $179,409.
The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
The exhibits are to be returned.
My reasons are published.
I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: Kayla Martin
Date: 18 May 2012
Counsel for the Plaintiff: Mr A Muller
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Defendant: Mr J Pappas
Solicitor for the Defendant: Moray & Agnew
Date of hearing: 23, 24, 26, 30 April 2012 and 1 May 2012
Date of judgment: 18 May 2012