McLEAN-PHILLIPS v Zinni - [2002] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McLEAN-PHILLIPS -v- ZINNI [2002] WADC 8

CORAM: MARTINO DCJ

HEARD: 20-22 NOVEMBER 2001

DELIVERED : 31 JANUARY 2002

FILE NO/S: CIV 1266 of 2000

BETWEEN: JULIE LORRAINE McLEAN-PHILLIPS
Plaintiff
AND
NATHAN ZINNI
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Damages - Personal injuries

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Talbot & Olivier

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

Newman v Nugent (1992) 12 WAR 119

Case(s) also cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
EMI (Australia) Ltd v BES [1970] 2 NSWR 238
McCreary & Anor v Whitney, unreported; SCt of Tasmania; Library No BC8700050; 22 July 1987
St George Club Ltd v Hines (1961) 35 ALJR 106
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

MARTINO DCJ:

Introduction

The trial of this action was for the purposes of the assessment of damages for personal injuries the plaintiff claims she suffered in a motor vehicle accident on 3 February 1999 ("the motor vehicle accident").
On 3 February 1999 the plaintiff was stationary in her car at a give way sign on Mitchell Freeway leading into Reid Highway. The motor vehicle accident occurred when the defendant's car ran into the rear of the plaintiff's car. The defendant admits that the motor vehicle accident was caused by his negligence.
The plaintiff claims that as a result of the motor vehicle accident she has suffered injuries, pain and discomfort and loss of earning capacity, that she has incurred and will continue to incur expense for treatment, that she has permanent disabilities and that she has required voluntary services to be provided to her. The defendant does not admit that the plaintiff suffered personal injuries in the motor vehicle accident or has suffered any loss. The defendant also contends that any injury or loss suffered by the plaintiff are the result of injuries or exacerbations suffered in accidents that occurred on or in 7 September 1992, 29 April 1993, August 1997, 27 November 1997, 18 January 1998 and 22 January 1998.

The plaintiff

The plaintiff was born on 17 March 1954. At the time of the motor vehicle accident she was employed by the Cerebral Palsy Association of Western Australia. She commenced employment with the Association in January 1990 and remains employed by it. Her current position is co‑ordinator of volunteers.
The plaintiff suffered personal injuries in an accident that occurred in the course of her employment by the Cerebral Palsy Association in September 1992 when she fell over a wheel chair ("the employment accident"). The plaintiff injured her neck and back in the employment accident. She continued work that day, saw a doctor and had a few days off work. After the employment accident the plaintiff suffered several exacerbations to the injuries suffered in that accident. Some of those exacerbations were the result of minor incidents. With the assistance of a rehabilitation program, aids at work and treatment she was able to continue with her work.
Dr Garry Garside, a specialist in occupational medicine, saw the plaintiff on 5 August 1998 at the request of her employer's workers' compensation insurer. The plaintiff informed Dr Garside that since the employment accident she had intermittent soreness and pain, predominantly in the neck and mid‑thoracic regions, and that she had constant neck stiffness. Her neck could become sorer and more painful with activity. In June 1998 the plaintiff had aggravated her neck and upper back symptoms after packing boxes and moving them by trolley from her old office to a new office. She had a week off work after that incident and had gradually returned to work. At the time the plaintiff saw Dr Garside she was working six hours a day. She usually worked seven‑and‑an‑half hours a day. Dr Garside expected the plaintiff to continue to gradually increase her hours of work. In Dr Garside's opinion the plaintiff had suffered a permanent disability as a result of the employment accident and would continue to suffer, at least, intermittent neck stiffness and pain, particularly if she undertook increased physical work or activities. He assessed the disability as being in the order of 10 per cent permanent residual disability of the cervical spine.
The plaintiff received physiotherapy treatment after the employment accident and was continuing to receive treatment at the time of the motor vehicle accident. One of the physiotherapists from whom she had received treatment was Ms Alison Manners. Ms Manners first saw the plaintiff in November 1998. Ms Manners was treating the plaintiff's cervical and thoracic spine. Ms Manners' treatment of the plaintiff's cervical spine was primarily of the upper cervical spine.
Immediately prior to the motor vehicle accident the plaintiff was swimming 20 laps of an Olympic pool three to four times a week and going to a gym under an exercise program supervised by Western Rehabilitation Pty Ltd, a rehabilitation service provider engaged by her employer's workers' compensation insurer. She was performing the full duties required of her in her position as co‑ordinator of volunteers and working full hours. The plaintiff also did rollerblading and cycling with a friend for leisure and exercise.

The motor vehicle accident and its consequences

The motor vehicle accident occurred when the plaintiff was on her way to work. She stopped her car at a give way sign. Soon after she stopped the defendant's car struck the rear of her car. After the accident the plaintiff drove around the corner, pulled over and got out of her car. Her evidence was that immediately after the motor vehicle accident she experienced pain in her neck, right shoulder, chest, wrist and ankles.
The plaintiff's car could not be driven from the scene of the accident. Her partner took her from the accident scene to see a doctor. When giving her evidence the plaintiff was uncertain as to which doctor she saw on the day of the motor vehicle accident, but thought it was probably Dr Christodulou, one of two medical practitioners that she saw at that time. It seems from the evidence of her usual general practitioner Dr Mark Flynn that in fact the plaintiff saw Dr Flynn. She informed her doctor that she had pain in her right shoulder, right upper chest, around her scapular, in her right knee and lower back and cervical stiffness. Examination revealed reduced rotation to the right in the lumbar spine. The plaintiff had tenderness in her upper thoracic and lumbar spinal regions, with a reduced range of motion of the thoracic spine. She had tenderness in both wrists and right knee tenderness.
After seeing a doctor the plaintiff saw Ms Alison Manners, her physiotherapist, on the same day. The plaintiff told Ms Manners that she was suffering pain in her neck and upper thoracic spine on the right side, right shoulder and clavicle pain, pain extending into the right elbow, wrist and thumb pain and some left thumb and wrist pain. The plaintiff did not go to work that day, but returned home after seeing Ms Manners. The plaintiff continued to see Ms Manners. Ms Manners' evidence was that prior to the motor vehicle accident the plaintiff was able to reach approximately 50 per cent to 75 per cent of the expected range of movement for a woman of her age. After the motor vehicle accident she could reach 25 per cent to 50 per cent of the expected range of movement. Prior to the motor vehicle accident the plaintiff complained of pain in the cervical spine mainly in the upper cervical spine area. After the motor vehicle accident the plaintiff complained of pain in the lower cervical spine.
The plaintiff returned to work a few days after the motor vehicle accident. At the time of the accident the plaintiff was studying for a Bachelor of Social Sciences part‑time. She took a year off from her studies after the accident.
The plaintiff saw Dr Flynn on 23 February 1999 and told him she had pain in her left foot, right shoulder and over the anterior chest.
On 24 February 1999 the plaintiff met with Ms Karin Slattery, exercise physiologist. Ms Slattery works with Western Rehabilitation Pty Ltd. Ms Slattery met with the plaintiff to review her progress in relation to the consequences of the employment accident. The plaintiff informed Ms Slattery that she had been sore for a week due to whiplash injuries sustained in a motor vehicle accident late the previous year and that she had symptoms in her right shoulder, both forearms, wrists, ankles and neck. The reference to a motor vehicle accident late the previous year must have been a misunderstanding because the only motor vehicle accident in which the plaintiff was injured at around that time was the motor vehicle accident on 3 February 1999.
The plaintiff continued to see Dr Flynn. Dr Flynn referred the plaintiff to Ms Kay McCashney, clinical psychologist. Ms McCashney first saw the plaintiff on 30 March 1999. She administered a number of clinical tests to the plaintiff. The results of those tests indicated that the plaintiff was clinically depressed. By 20 April 1999 the plaintiff's mental state had improved and the plaintiff did not require any further psychological assistance.
The plaintiff saw Dr Garside on 12 April 1999, again at the request of her employer's workers' compensation insurer. She informed Dr Garside that her condition had continued to improve after he had seen her in August 1998. She had returned to her normal hours of work and was exercising regularly. The plaintiff informed Dr Garside that after the motor vehicle accident her neck became painful immediately and she subsequently developed headaches, dizziness, right anterior chest pain, pain and swelling in the left ankle, both knees, her right elbow and both thumbs. In Dr Garside's opinion the plaintiff had sustained an aggravation of her pre‑existing condition in the motor vehicle accident and her condition was not back to her condition prior to the motor vehicle accident. In addition she had suffered right shoulder, chest, left ankle and right elbow soft tissue injuries.
On 14 April 1999 the plaintiff saw her dentist Dr Sandeep Sharma. She informed Dr Sharma that she had pain in her temporomandibular joint following the motor vehicle accident. Dr Sharma referred the plaintiff to Dr Robert Delcanho. Dr Delcanho is a dentist who specialises in the treatment of facial and oral pain.
The first record made by Dr Flynn concerning the plaintiff's right ankle was made by him on 15 April 1999. On that day the plaintiff told him that she had a swollen left ankle, pain on the right collar bone and tingling in her face, on the right greater than the left. Examination of the right ankle revealed that there was some minor tenderness.
Dr Delcanho saw the plaintiff on 6 May 1999. The plaintiff informed Dr Delcanho that she was suffering continuous, severe pain in the neck, shoulder, face and jaw regions. In Dr Delcanho's opinion the motor vehicle accident was a key factor in the development of the plaintiff's symptoms. He prescribed and fitted occlusal splints. Dr Delcanho has continued to provide treatment to the plaintiff. The treatment has stabilised the plaintiff's jaw condition and Dr Delcanho does not expect the condition to deteriorate. The plaintiff will require a further splint which will cost $600 plus two consultation fees of $90.
On 8 May 1999 Dr Flynn saw the plaintiff. He referred her to Dr Geoffrey Gee, a consultant in pain management. Dr Gee saw the plaintiff in late May or early June 1999. He wrote a report dated 1 June 1999. The plaintiff told him that she was suffering extensive pain. Her major concern related to her neck pain with associated occipital headaches. Her neck pain was on both sides and extended down to the mid‑dorsal region. She also told Dr Gee of pain over the right chest, pain in both wrists and extending into the right thumb and pain in both ankles, particularly the left. Dr Gee thought that most of the plaintiff's symptoms were caused by soft tissue injuries. He supported the referral of the plaintiff to Dr Michael Ponchard, an exercise physiologist, for a massage and exercise program. The defendant's insurer was not prepared to pay for treatment by Dr Ponchard and the plaintiff did not receive treatment from him. Dr Gee saw the plaintiff again on 28 June 1999. He considered it important for the plaintiff to increase her exercise. On 4 April 2000 Dr Gee saw the plaintiff again. He thought it reasonable to consider the plaintiff for facet joint injections in the cervical spine on the right side at C3/4.
On 4 August 1999 Mr Peter Watson, neurosurgeon, saw the plaintiff at the request of her solicitors. The plaintiff informed Mr Watson that her symptoms at that time were principally cervical spine pain which radiated upwards into the occipital region and downwards into the shoulders, thoracic and lumbar spine areas. The pain tended to be more on the right than the left and the plaintiff had right arm pain extending to the forearm. The plaintiff also said that she had intermittent paraesthesia on the right side of her face.
In Mr Watson's opinion the plaintiff suffered soft tissue and ligamentous injuries to her cervical spine principally as a result of the motor vehicle accident, against a background of the injury to the cervical spine and lumbar spine in the employment accident. Mr Watson recommended that the plaintiff undertake exercises to strengthen the muscles in her cervical spine. In his opinion the plaintiff's symptoms would slowly improve.
Mr Watson saw the plaintiff again on 12 July 2001. The plaintiff informed him that she continued to suffer pain in her cervical spine. That pain was associated with headaches. The plaintiff also informed Mr Watson of pain in her right shoulder and her lower lumbar spine. The lumbar spine pain was associated with stiffness in her legs radiating as far as her feet. The plaintiff also informed Mr Watson of separate injuries to her wrists and ankles. Apart from a slight reduction in the plaintiff's headaches there had been little improvement in the plaintiff's symptoms since the time that Mr Watson had last seen her.
It is Mr Watson's opinion that the plaintiff's ongoing treatment in relation to her spinal injuries should be a continuation of exercise and strengthening with a review by a physiotherapist or chiropractor once a month, membership of a gym and a swimming facility. She may also require review by a pain management specialist. Mr Watson believes that the plaintiff's condition will continue to improve.
On 7 September 1999 the plaintiff saw Mr Nicholas Anastas, an orthopaedic surgeon, at the request of the defendant's insurer. Mr Anastas took a full history from the plaintiff and examined her. In his report dated 7 September 1999 he expressed the opinion that in the motor vehicle accident the plaintiff suffered "a soft tissue injury to her cervical spine superimposed on pre‑existing symptoms as a result of" the employment accident. She had also suffered some deep bruising in the region of her right upper chest, right clavicle and both ankle joints. Mr Anastas expected that the consequences of the motor vehicle accident would settle in due course and the plaintiff would return to her condition as it was prior to the motor vehicle accident.
Mr Anastas saw the plaintiff again on 2 February 2000. At that time the plaintiff was on long service leave. The plaintiff had been receiving myofascial trigger point therapy treatment from an occupational therapist and chiropractors. The plaintiff found that this treatment had improved her symptoms. However Mr Anastas did not find any improvement in the plaintiff's condition. She informed him of more symptoms than she had reported on the first review. Her symptoms were in her cervical spine, thoracic spine, lumbar spine, right shoulder, right upper chest, both wrists and both ankles. In Mr Anastas' opinion the plaintiff continued to suffer symptoms as a result of the motor vehicle accident. In his view the plaintiff should continue with an exercise program which she could do independently, together with medication and an anti‑inflammatory cream.
The plaintiff's solicitors arranged for the plaintiff to see Dr Thomas Berrigan, consultant in pain medicine and anaesthesia, on 18 October 1999 and 12 April 2001. Dr Berrigan diagnosed that the plaintiff had sustained an acute spinal strain in the motor vehicle accident, which was an exacerbation of the injuries suffered in the employment accident. The plaintiff also suffered injuries to her wrists and ankles in the motor vehicle accident. In Dr Berrigan's opinion the plaintiff's condition is likely to improve over several years and she will probably make a complete recovery.
On 29 October 1999 Ms Stephanie Martin, physiotherapist, saw the plaintiff. Dr Flynn had referred the plaintiff to Ms Martin for a program to manage her injuries. Ms Martin recommended a program of gym membership, exercise and physiotherapy.
The plaintiff took long service leave from December 1999 to May 2000. She had been discussing with a friend the possibility of them holidaying in Europe together, but they had not made any definite arrangements. The plaintiff took her long service leave because she felt she needed a break from her work to help her recover. She did not travel to Europe. The plaintiff found that the long service leave helped her condition. She was not as tired as when she worked and she felt this helped her deal with her pain. The plaintiff continued to be paid while she was on long service leave.
On 22 February 2000 the plaintiff saw Mr Tony Robinson, orthopaedic surgeon, at the request of her solicitors. The plaintiff told Mr Robinson that she continued to suffer neck pain, pain in both ankles, more on the left than the right, wrist pain, more on the right than the left, right shoulder pain, central low back pain and temporomandibular joint pain. Mr Robinson organised an ultrasound of the plaintiff's right shoulder and both wrists. The right shoulder ultrasound revealed bursitis with bunching consistent with having been caused in the motor vehicle accident. He recommended that the plaintiff undergo one or two steroid injections into the shoulder and, if that treatment was not successful then consideration be given to arthroscopic decompression of the right shoulder. Dr Flynn injected cortisone into the plaintiff's shoulder. That provided some pain relief but did not increase the plaintiff's shoulder movement. A radiographer also injected cortisone into the plaintiff's shoulder. That did not provide any benefit to the plaintiff.
Mr Robinson also saw the plaintiff on 22 August 2000 and 5 June 2001. Mr Robinson diagnosed the plaintiff as suffering soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine, supraspinatus tendinitis and bursitis of the right shoulder, synovitis of the ankles, a possible ganglion over the dorsum of the right mid‑foot and possible DeQuervain's tenosynovitis of the right wrist. He recommended that the plaintiff see a pain relief expert for possible facet joint injections in the spinal column, local anaesthetic and perhaps steroid injections into the right shoulder and ultrasound investigation and possible injections of cortisone or release to the right wrist.
On 27 November 2000 the plaintiff saw Mr John Ker, a consultant in rehabilitation medicine. Mr Ker diagnosed the plaintiff as having suffered a series of primarily musculo‑ligamentus strain injuries in the motor vehicle accident, particularly a strain to the cervical spine, the site of pre‑existing degenerative disc disease. Mr Ker also saw the plaintiff on 25 September 2001. The plaintiff's condition had improved. Dr Ker is hopeful that over further time the plaintiff's condition might continue to improve. He recommends that the plaintiff continue to receive the medication prescribed by Dr Flynn. He considers that the plaintiff should undertake and maintain strengthening and stretching exercises. In Dr Ker's opinion the plaintiff should continue to be able to carry out her work but has suffered some degree of loss of competitiveness in the workforce because she continues to experience pain and have treatment to continue working.

The plaintiff's studies at University

At the time of the motor vehicle accident the plaintiff was studying at a University part‑time for a bachelor's degree in social science. She commenced studying for the degree in 1990. She usually studied for two or three units a semester. She was enrolled in two units when the motor vehicle accident occurred. As a result of the injuries suffered in the motor vehicle accident she withdrew from her studies in 1999. She re‑commenced in 2000, but found it too difficult to continue with two units and completed only one. The plaintiff has obtained extensions of time to complete her degree but unless she completes the coursework by the end of 2002 she will not be awarded a degree. I find that the plaintiff's completion of her degree has been delayed by the motor vehicle accident. The plaintiff believes that to obtain promotion to a co‑ordinator's position with her employer it is necessary for her to hold a degree.
Christopher George Kumar, the manager of the Cerebral Palsy Association, gave evidence that a degree qualification is desirable but not necessary for appointment to a co‑ordinator's position. In his experience appointments at the association have been based on proven abilities and skill rather than the holding of a degree. Mr Kumar said that in the industry of caring for disabled people it is usual for people to change employers to obtain promotions because of the limited opportunities within each organisation. On the basis of Mr Kumar's evidence I conclude that while the holding of a degree would increase the plaintiff's competitiveness in the workforce and her prospects of promotion it would not determine whether she obtained a promotion.

Damages

The plaintiff now suffers from headaches, pain and limitation of movement in her neck, pain in her jaw, pain and limitation of movement in her right shoulder and her right arm, pain in her right wrist and thumb, pain in her mid and low back, pain in her ankles, worse in the left ankle. Counsel for the defendant submitted that the plaintiff's jaw pain and ankle pain were not caused by the motor vehicle accident and he pointed to the lack of contemporaneous complaint of pain in those areas. The plaintiff did not mention jaw pain or ankle pain when she first saw a medical practitioner on the day of the accident. However she did tell Dr Flynn of left foot pain when she saw him on 23 February 1999 and when she saw Ms Slattery on 24 February 1999 she told her of pain in the ankles. Dr Flynn noted right ankle tenderness on 15 April 1999. The plaintiff saw Dr Sharma on 14 April 1999 and told him of pain in her jaw. I accept that the plaintiff's ankles were injured in the motor vehicle accident and that her jaw pain is a result of the motor vehicle accident.
The plaintiff suffered headaches, neck and back pain before the motor vehicle accident. I accept that these conditions have been worsened by the motor vehicle accident. Prior to the motor vehicle accident the plaintiff was working with some inconvenience as a result of her pain in these areas. The plaintiff has been able to continue with her employment since the motor vehicle accident but with increased difficulty and has taken considerable sick leave for which she has been paid. She has applied for positions with other employers but has not been successful. Her studies at University have also been delayed by the injuries suffered in the motor vehicle accident. I accept that her difficulties at work and the delays in her obtaining a degree may have resulted and may result in the future in some economic loss to the plaintiff through reduced competitiveness in the work force, but the loss would not be great. It is not possible to assess the loss with any precision. I assess past and future loss of earning capacity at $10,000.
The motor vehicle accident has also restricted the plaintiff's recreational activities. She can no longer rollerblade or cycle and dancing has been restricted. The plaintiff lost much of the enjoyment she expected from her long service leave. I assess the plaintiff's case as being 10 per cent of the most extreme case and so allow $11,700 for non‑pecuniary loss.
The plaintiff has claimed for domestic assistance provided to her and in the household by her partner Mr Keith Millington and her sons Phillip who is aged 21 and Scott who is aged 18. I do not allow this claim. An award can only be made for assistance required by the plaintiff, not for tasks that the plaintiff previously did for others in the household which they now do for themselves: Newman v Nugent (1992) 12 WAR 119. Many of the tasks about which evidence was given by Scott McLean were tasks for him, such as his own washing and ironing and preparing of meals. Secondly no medical practitioner gave evidence that such assistance is required by the plaintiff. When I asked the plaintiff's counsel about that in his closing address he pointed to Mr Robinson's report dated 8 June 2001:
"The patient gets help from her children with carrying out household duties. She recently had a cleaner into the house to help as her children are getting older (aged 17 and 21 years). Thus they are not keen to help with the household duties.
The patient is considering a regular cleaner in view of the ages of her children."
That is not evidence that the assistance is required as a result of the accident and in any event it is evidence about the household as a whole, not the plaintiff specifically.

Future treatment

I accept the evidence of Mr Watson and Mr Ker that the plaintiff's condition will continue to improve and that the best treatment for her is to continue with medication prescribed by her general practitioner and with exercise. I do not accept that the further injections or investigations suggested by Mr Robinson are necessary. The plaintiff has suffered injuries to her muscles and ligaments and conservative management of her injuries is likely to be most productive. I also consider it reasonable for the plaintiff to continue with some limited physiotherapy or chiropractic treatment. In Mr Anastas' opinion the plaintiff can carry out exercises on her own at home. While it is theoretically possible for the plaintiff to undertake strengthening and stretching exercises on her own I find that those exercises are likely to be most productive with professional assistance. I allow one visit a week at a cost of $30 a visit. As the plaintiff's condition will gradually improve, I conclude that three years is an appropriate period to allow for further treatment. The allowance for future treatment should also include the cost of further treatment by Mr Delcanho.
I calculate the plaintiff's future treatment costs as follows:
General practitioner                   $   270 a year for 3 years
Chiropractor  $   150 a year for 3 years
Medication  $1,000 a year for 3 years
Total  $1,420
Weekly cost  $27.30
Multiplier for 3 years                 143.6
$27.30 x 143.6 =  $3,921
The cost of treatment by Dr Delcanho will be approximately $780. I allow $4,700 for future treatment costs.

Summary

I have set out in these reasons my findings on the impact on the plaintiff of the injuries suffered in the motor vehicle accident. On the basis of those findings my assessment of damages is as follows:
Non‑pecuniary loss  $11,700
Past and future loss of earning capacity                 $10,000
Agreed special damages  $ 4,040
Future treatment costs  $ 4,700
Total  $30,440