McComb v Edis and Transport Accident Commission

DISTRICT COURT OF QUEENSLAND

CITATION:	McComb v. Edis & Transport Accident Commission [2000] QDC 411
PARTIES:	NATALIE SHANE MCCOMB (plaintiff) v. KERAN PATRICK EDIS (first defendant) And TRANSPORT ACCIDENT COMMISSION (second defendant)
FILE NO/S:	D3563 of 1999
DIVISION:
PROCEEDING:	Trial
ORIGINATING	District Court Brisbane
COURT:
DELIVERED ON:	18 February 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2000
JUDGE:	McGill D.C.J.
ORDER:	Order that the second defendant pay the plaintiff $53,500 and costs to be assessed
CATCHWORDS:	DAMAGES – personal injuries – neck and back – 27F – 12½% whole person
COUNSEL:	P.B. de Plater for plaintiff P. Hastie for defendants
SOLICITORS:	McInnes Wilson for plaintiff Quinlan Miller and Treston for defendants

By this action the plaintiff claims damages in respect of injuries suffered by her in a motor vehicle accident on 1 November 1998. The plaintiff was at the time driving her car north towards the Story Bridge when the first defendant’s truck which was heading south collided with a southbound car, forcing it across the road into a head on collision with the plaintiff’s vehicle: p.6. Liability has been accepted on behalf of the defendants and the only issue is as to the quantum of the plaintiff’s damages.
The collision occurred with considerable force, and the plaintiff’s vehicle struck the kerb to its left: p.8. The plaintiff was shocked by the collision and suffered pain immediately in the left wrist, and also left knee where it had struck the gear lever; she also had some grazing on her knuckles and some bruising: p.8. She went home in the tow truck with her vehicle, and began to feel strong pain in her neck and lower back, and arranged for an after hours doctor to attend her: p.9. He gave her a prescription, and the following day (a Monday) after an uncomfortable night, she attended a general practitioner, Dr. Hussain, who arranged for x-rays to be taken: Exhibit 1. Dr. Hussain in his report confirms that the plaintiff presented on 2 November with pain in the neck, lower back and left arm, and said that x-rays showed no bony injury. He did not expect any permanent disability.
The plaintiff was at the time in employment, and after seeing the doctor she stopped in at work for about an hour to collect a replacement vehicle offered by her employer, and to attend to some urgent telephone calls, but she took the next two and a half days off: p.10. During this period she was paid sick leave. She then returned to work and has not lost any income subsequently as a result of the injury, although she has taken some time off work to attend doctors or receive treatment; she has usually just worked longer hours to make up for this lost time: p.10.
The plaintiff is employed as an administration manager with an insurance loss assessing company: p.6-7. In that position she does the banking and bookkeeping and supervises six staff, handles queries from insurance companies and insured clients, has her own case load claims to manage, and is responsible for computer systems used by the company, at the Brisbane office and at a number of other offices around Queensland, which involves some travelling: p.10. She works long hours (p.9) and seemed to be enthusiastic about her job, and said that her employer is co-operative which has helped her to continue to do the work. That also suggests that the employer regards her as a valuable employee. There has been some modification of the work that she does; for example, she no longer lifts heavy computer monitors, and will have more breaks when required to work on a computer for an extended period of time. Because of the nature of her work, she is able to change her position fairly frequently, including getting up and walking around; she has a sitting tolerance which she put at about three quarters of an hour, and there was medical evidence from Dr. Olsen that she should avoid sitting in one position for too long, as this would aggravate the condition in her back: p.75. It seems that in her current position her work is sufficiently flexible to enable her to accommodate these difficulties, this is probably one of the reasons why she has been able to continue to work. Another reason is that she is obviously keen to retain the job, so she has persevered with it in spite of such pain as she feels.
The plaintiff’s complaint is essentially of continuing pain in her neck and lower back: p.11. She often wakes up with severe pain in her neck (p.12), and finds various forms of activity aggravate her pain, although sometimes it just gets worse for no apparent reason. She has taken a variety of medication, Voltaren and for a time Feldene, Zantac (to counter possible side effects in the stomach from these tablets), and Panadol or Panadeine Forte: p.13. The consumption of this medication varies, depending on the pain level. She has also received physiotherapy, initially as treatment and more recently occasional visits to obtain pain relief when symptoms were particularly bad: p.13. The benefit of the physiotherapy is particularly to reduce pain radiating into the backs of her legs: p.16.
She has also received several treatments of massage to the neck and back for pain relief, which lasts for about two days: p. 14. She has also tried to do some light exercise, but found that it was just producing more pain, although she is considering resuming some suitable program: p.15.
The plaintiff has seen a number of doctors for the purposes of medico-legal reports. She saw Dr. Olson, a physician specialising in occupational medicine, whose work involves a particular study of the musculo-skeletal system (p.62) on 15 April 1999 for the purposes of a report, Exhibit 4. Dr. Olson understood that there had been a very good response to the physiotherapy, and described the plaintiff as suffering residual symptoms involving the lower back and neck. The symptoms described to Dr. Olson were recurrent lower back pain lasting for one to two days when it does occur, neck stiffness with difficulty in sitting or driving for too long and an inability to pursue recreational activities, including extended walking. On examination there was some restriction of extension and, to a lesser degree, left lateral flexion, of the cervical spine, and some restriction on extension of the lumbo-sacral spine, with tenderness at the right facet joints at C7/T1, and tenderness over the facet joints at L5/S1. Dr. Olson thought there was an injury to the facet joints at the C7/T1 level, and also in the lumbo-sacral spine, and possibly disc injury as well, which he wanted investigated further. He thought the plaintiff should avoid lifting above 12 kilograms, or lifting which involved extended reaching spinal rotation or flexion or stooping, and prolonged fixed head postures. Otherwise, she ought to be able to perform her work so that the restrictions were unlikely to compromise her employment prospects.
The MRI was subsequently conducted on 26 May 1999 but did not show any impairment of the lumbo-sacral discs: Exhibit 5. This encouraged Dr. Olson to emphasise the injury to the facet joints in both places in the spine. He also mentioned relatively minor injury to the right patella and the right shoulder, but the plaintiff did not complain about any continuing difficulties with these before me. He recommended an exercise program, and thought that there would be some gradual further improvement over 18 months, but that there was a prospect of 10% permanent impairment as a consequence of each part of the injury, giving overall a 19% impairment of the whole person. Dr. Olson did not think that physiotherapy was a useful form of treatment (Exhibit 6) being essentially confined to pain relief and not being reasonable for this purpose in view of its limited period of effective operation compared with its cost: p.66. He thought the same applied to massage: p.66
He saw the plaintiff again on 3 February 2000: Exhibit 7. There was little change in symptoms, although on examination there was more generalised restriction in movement in the cervical and lumbo-sacral spine, which Dr. Olson thought indicated the onset of a chronic pain syndrome ( and see p.72). He thought there was a certain amount of anxiety regarding her condition at present, and claimed that this may be contributing to her unduly restricting her activities. Dr. Olson thought that the condition had not stabilised and that there was a prospect of improvement, particularly with a more aggressive home based rehabilitation program, although there was also the possibility of a procedure to desensitise the nerves to the relevant part of the spine; this was explained to the plaintiff and she was not enthusiastic about it, which Dr. Olson regarded as reasonable: p.69. Nevertheless, he thought that there were prospects of improvement and that the level of permanent impairment he foresaw was in the range of 10-15%. The plaintiff should avoid horseriding and other activities that jar the back, but otherwise should become more active: p.75.
The plaintiff was seen on 19 November 1999 by Dr. Dickinson, an orthopaedic surgeon, for the purposes of a report to the solicitors for the defendant: Exhibit 11. She gave Dr. Dickinson the same history, and complained of recurring pain in the back and down the backs of the legs, with difficulty sitting for any reasonable period, or with driving, and the neck feels very stiff and painful. Examination was essentially normal except for some restriction of straight leg raising, and x-rays of the cervical lumber spine taken in November 1998, and the CT scan of the lumber spine taken in December 1998, were normal. Dr. Dickinson thought that the plaintiff had suffered soft tissue injuries but that there was no evidence of any ongoing cause for pain, either degenerative or acute, and no evidence of any orthopaedic condition which could explain the pain. Dr. Dickinson thought the plaintiff should try to get back to normal activities, and did not think that she would be affected in her employment. In oral evidence his position was essentially that if the plaintiff was feeling pain it was not an orthopaedic problem: p.36. He did not think that it would be reasonable to persist with massage to provide relief in the long term: p.29. He also thought that physiotherapy was not helpful in the long term: p.30.
The plaintiff was seen by Dr. John Pentis, an orthopaedic surgeon, on 11 January 2000 for the purposes of a report to the plaintiff’s solicitors: Exhibit 9. Complaints were of pain and stiffness in the lower back and the neck, restriction of sitting and difficulty lifting, bending and twisting. On examination there was a reasonable range of movement but some tenderness in the muscle over the right shoulder, and in the lower back and over the sciatic nerve. Straight leg raising was 80° on both sides, CT scans showed no major pathology but x-rays showed some degeneration of the lower facet joints of the lumber spine. Dr. Pentis thought the plaintiff had suffered soft tissue injury and an aggravation of previous problems associated with an injury to the pelvis in a horse riding accident when she was 11, which was stabilised with a metal plate when she was 22. He also thought the accident had aggravated some degeneration in the facet joints which was causing ongoing pain. Dr. Pentis thought the degeneration in the facet joints might be associated with the previous injury to the pelvis: p.57. The aggravation of that injury by the accident is likely to be permanent, that is, she will be permanently worse than she would otherwise have been: p.58. If the accident had not occurred, then there was a possibility that the plaintiff might have developed problems anyway as a result of the degeneration there: p.58. On the other hand, Dr. Olson thought that the finding of degeneration of the facet joints may be just coincidental, and frequently does not cause any significant symptoms or disability: p.77.
Dr. Pentis assessed her overall loss of efficient function of the body at 7.5%. The plaintiff had had a massage the day before she saw Dr. Pentis, so she may have been experiencing some temporary abatement of the symptoms at the time of this examination, which may account for things like the improved straight leg raising. Dr. Pentis also thought that physiotherapy or massage was not useful as a long term solution, although it would produce some temporary pain relief: p.54. He thought that she should avoid the more strenuous pre-accident sporting activities, but that she would be able to cope with work provided that she was able to change positions at fairly frequent intervals.
Prior to the accident the plaintiff pursued a number of physical activities. She belonged to a surf life saving club, which she attended regularly. She would go to the surf club generally once a week on Sundays, where she was helping with the nippers rather than patrolling: p.40. She had previously been involved in surf boat rowing but at the time of the accident she did not have a place in the club boat: p.39 She attended a gym about four times a week, and also used to work out by walking or running: p.9. She would go out running about twice a week: p.40. She had been running competitively previously when she lived in Perth: p.39. She had previously been very interested in horse riding, from a young age, including riding competitively, but she had not owned a horse since she moved to Brisbane about two years ago: p.25.
The plaintiff was born on 25 August 1972 (p.6) and is now 27. She has suffered injuries to the spine which have been painful and the pain has been unusually persistent. I accept that the pain fluctuates from time to time, and that that situation is likely to continue indefinitely, the pain being quite unpleasant when it is stirred up. Dr. Olson thought the plaintiff had genuine pain: p.79. Mr. Godbolt found tightness when applying physiotherapy to the plaintiff’s spine, which also suggests some genuine problems: p.84. Mr. Smoothy, who has been providing massage, has noticed the same tightening of the muscles: p.49. It has made it hard for the plaintiff to do her work, and it has substantially reduced the scope of her recreational activities, which were previously quite physical. The plaintiff had experienced a variety of restrictions in what she can do at home (p.19), because of the difficulties in lifting and bending. There are prospects of some improvement, but no one suggested that the problem is going to go away. On the whole of the medical evidence I assess permanent incapacity at 12½% of the whole person, which includes allowance for pain. Other relevant factors are the possibility that the plaintiff may have had problems with degeneration of the facet joints anyway, particularly if she persisted in her active life style, and some allowance should be made for that. In the light of the evidence of Dr. Olson I do not think a large reduction should be made because of this possibility. The medical evidence is to the effect that the plaintiff could be more active than she currently is, and that that would actually help her to overcome the condition to some extent. Nevertheless, there is a prospect that in the long term the plaintiff’s ability to cope with the pain may diminish.
I think it is also relevant that the plaintiff has persisted in her work, both in returning to work quite soon after the accident, and in remaining in a job where she is working quite long hours. This has meant that there has been no past economic loss, but it does mean that the plaintiff has probably suffered more than someone who had followed a more relaxed convalescence. I suspect that the plaintiff’s keenness to work will continue, so that that will be much the same in the future; there will be relatively low economic loss, but the plaintiff will pay a price to some extent in the pain that she suffers. I think that this extra pain, because of her persistence in working, should be reflected in the award of damages for pain, suffering and loss of amenities, which should also reflect the relative youth of the plaintiff. In all the circumstances I will assess damages under this head in the sum of $27,000, of which I apportion $7,000 to the past; this will bear interest at the rate of 2% per annum for 1.3 years.
There is no claim for past economic loss. The plaintiff seems to be reasonably well established in her present position, but there is no guarantee that she will remain in that job for the rest of her working life, and I suspect that such an employment pattern is unusual these days. The plaintiff has some concerns about her ability to compete in the open labour market (p.11), particularly in work with computers, a field where she is obtaining a further formal qualification with the assistance of her employer. I think that this is a factor which should not be completely disregarded, or treated as subsumed in the plaintiff’s enthusiasm and application. It is likely that the plaintiff will change jobs from time to time in the future, and that the process of finding employment when that arises will probably be more difficult for her than it would have been for her had she been uninjured. This may well be a factor of greater significance in the more distant future, when she may have less support from youthful enthusiasm.
A matter such as this can only be accommodated by a global award, and in all the circumstances it should be a modest one. The amount roughly equivalent to six months earnings spread over the balance of her working life would, I think, on the whole be reasonable, although that has to be discounted because any such loss is more likely to be experienced in the more distant future. The matter is not one of calculation, but these considerations provide some broad guidance for the appropriate figure which I think, in all the circumstances, should be $10,000 inclusive of loss of superannuation benefits, which these days is frequently allowed as a separate item, particularly if future economic loss is assessed with an element of calculation, or is in a larger amount.
Special damages are set out in Exhibit 10; of these items 1, 5, 6, 7 and 8 are uncontentious. The principal dispute was as to the appropriateness of charges for more recent physiotherapy fees, and for massage, where that has been for pain relief rather than as an adjunct to the healing process. Some of the earlier physiotherapy fees were paid by the second defendant, so the fees in issue I think essentially relate to the more recent physiotherapy and massage which is for pain relief. The plaintiff commenced physiotherapy on 3 November 1998 and by 27 January 1999 had good resolution of the lower back pain, although there was continuing neck and shoulder pain and some lower back pain; there was thought to be some prospects of further improvement over the following two months: Exhibit 2. The physiotherapist, Mr. Godbolt, thought that some ongoing physiotherapy from time to time to settle exacerbation of the back pain was appropriate: Exhibit 3. The plaintiff began to receive massage which was, I think, essentially palliative, and there was the prospect of this continuing indefinitely every two or three weeks: Exhibit 8. The plaintiff did speak with both the physiotherapy and the massage as being of benefit to her, particularly in more recent times the massage, although she did agree that the duration of the benefit was fairly limited. None of the doctors supported physiotherapy or massage as a means simply of pain relief, I think essentially on the basis that it was far too expensive for the benefit obtained. The physiotherapist, Mr. Godbolt, thought that the physiotherapy currently being provided was simply helping to relieve the plaintiff’s symptoms: p.83.
The plaintiff is entitled to recover by way of damages under the cost of reasonable treatment, and in the absence of any medical evidence supporting the view that either of these treatments on an ongoing basis were reasonable, I do not think that I should allow as damages the cost of the massage, or the more recent cost of the physiotherapy. Unfortunately, it is not entirely clear when the physiotherapy which was legitimate post accident treatment was completed but it seems to be after the time when the second defendant stopped making payments. There had been 17 occasions for treatment when Exhibit 2 was written, which would have cost I expect something in excess of $700. Treatment to that point and for the following two months ought, I think, to be covered. In the circumstances I will allow a further $250 for physiotherapy fees, doing the best I can on the basis of the evidence, but will not allow the balance of the past physiotherapy fees claimed, or any amount for future physiotherapy. I will not allow any amount for massage. I think it is appropriate to disregard amounts paid already by the second defendant. It follows that special damages are allowed in the sum of $1,743 of which the plaintiff is out of pocket in the sum of $1,193, so that amount will bear interest.

The other contentious aspect of the special damages was the cost of commercial cleaners. After the accident the plaintiff had great difficulty doing a number of things and was assisted in the house she was then sharing with a flat mate by the flat mate and to some extent by her mother. She gave an estimate of 10 hours per week for this assistance, until about March 1999, then dropping to about 3 hours per week until she moved out of that house in September that year, when she moved to a townhouse at New Farm. She went with a flat mate who at that stage was also incapacitated and they arranged for someone to come to clean the townhouse once a week for two hours, at a cost of $40 which they shared equally. That arrangement is continuing. The plaintiff claims the cost of this at $20 per week, but it was submitted on behalf of the defendant that the reason for this expenditure was that the plaintiff was working and does not have the time to do the cleaning tasks at home, or would have incurred this expenditure in any event, even if she had not been injured.
There was medical evidence to support the view that there were at least some things which the plaintiff should not be doing by way of housework. Dr. Olson said that washing up, vacuuming and cleaning showers were particular problems for someone with the plaintiff’s condition: p.75-6. It is reasonable for the plaintiff to obtain assistance to the extent of two hours per week, which is not a very large amount. I am wary about the extent of assistance claimed for the earlier period, even allowing for the fact that the house then occupied was substantially bigger than the townhouse and would have required more looking after. In circumstances where the plaintiff is going to have a condition made worse if she has to engage in a variety of common household tasks, I think it is reasonable for the plaintiff to be relieved of those tasks, and if the need for this has arisen because of her injuries it is not the point that the services might have been provided anyway. The plaintiff is only claiming for the cost to her of the cleaner, that is half of the actual cost of engaging the cleaner, and I think that that amount is reasonable in the past, and there is probably a continuing need for that level of assistance in the future, at least until the plaintiff becomes more active.
I think that some significant amount of care was certainly appropriate in the period immediately after the accident, but I think that the claim is really too large, because the period of 10 hours per week should not extend until March, particularly in the light of the physiotherapist’s view that there had been a good resolution of the lower back pain by the end of January. Once the plaintiff moved to the townhouse, the gratuitous care component effectively ceases, being taken over by the cleaning expense. It is agreed that the gratuitous care should be allowed at a rate of $12 per hour. I will allow 8 hours per week for 14 weeks, followed by 3 hours per week for 30 weeks, which gives a figure of $2,424, which I allow interest at 2% per annum for 5 years, to allow for the fact that there was a greater rate of loss at the beginning of the period.
With regard to future care treatment and medication, the plaintiff claimed a relatively modest sum of $20 per week for 15 years, discounted at the 5% tables and rounded down to $10,000, and I think that this is certainly reasonable, being if anything too modest, bearing in mind that it has to cover both future cleaning costs and future medication expenses (but not future physiotherapy or massage). I will allow $12,000 for this.

Summary

A: Pain, suffering and loss of amenity	$27,000
B: Interest on $7,000 at 2% per annum for 1.3 years	$182
C: Future economic loss	$10,000
D: Special Damages	$1,743
E: Interest on $1,193 at 5% per annum for 1.3 years	$78
F: Past gratuitous care	$2,424
G: Interest at 2% per annum for 1.5 years	$73
H: Future care treatment and medication	$12,000
Total:	$53,500

There will therefore be judgment that the second defendant pay the plaintiff the sum of $53,500 which includes $333 by way of interest. I will hear submissions on the question of costs.

[2000] QDC 411

18/02/2000