Mikulic v Miller - [2000] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MIKULIC -v- MILLER & ANOR [2000] WADC 40

CORAM: CHARTERS DCJ

HEARD: 31 JANUARY 2000

DELIVERED : 11 FEBRUARY 2000

FILE NO/S: CIV 595 of 1998

BETWEEN: EMILIJA ANGENZIA MIKULIC
Plaintiff
AND
GLENDA MILLER
First Defendant
PAUL TONG
Second Defendant

Catchwords:

Damages - Assessment - Turns on its own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded of $18,454.10

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
First Defendant             :     Mr M A McAuliffe
Second Defendant         :     Mr M A McAuliffe

Solicitors:

Plaintiff:     Simon Walters
First Defendant             :     McAuliffe Schwikkard
Second Defendant         :     McAuliffe Schwikkard

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

Nil

Case(s) also cited:

Nil

CHARTERS DCJ: The plaintiff is a 26 year old assistant engineer's clerk who claims damages arising from personal injuries suffered in two motor vehicle accidents: the first on 14 October 1994 and the second on 6 May 1998.
The bases of the claims are that each defendant drove a motor vehicle negligently and collided with the vehicle driven by the plaintiff.
The defendants admit they were negligent and put the plaintiff to proof of her damages. I am accordingly required to assess the plaintiff's damages.
The injury following the first accident is claimed to have been a soft tissue injury to the plaintiff's cervical and thoracic spines producing pain and stiffness of the neck and right shoulder, tenderness of the right upper posterior joint, right trapezius muscle belly and occipital attachments, limitation of neck movements, spasticity over the right trapezius muscle and a spastic tender right paracervical muscle region, occipital headaches and discomfort together with sleep disturbance.
The injuries claimed to have resulted from the second accident are pain, stiffness and tenderness of the cervical spine, both shoulders and right knee, limitation of movements of the neck, both shoulders and right knee and headaches and discomfort with sleep disturbance.
The claims of damage are:
(a)loss of amenities;
(b)outstanding special damages - physiotherapy treatment totalling $654.10; and
(c)economic loss.
Medical reports have been tendered by consent and I have a schedule of special damages, the particulars of which are not challenged though I understand the defendant does not concede that physiotherapy was, and in the future is, required.

Findings of fact

I relate the facts which I find to be proved from the evidence.
The plaintiff completed 12 years of schooling at Hamilton Hill Primary School and St Brendon High School/Seton College. In 1994 she completed a diploma in business studies.
On 1 August 1994 the plaintiff was employed full‑time as a patient care assistant with St John of God Hospital, Murdoch. Her duties included having direct contact with patients, distributing food, transporting patients by wheelchair to radiology or physiotherapy, helping the nurses to bathe patients which involved lifting and supporting the patients and transferring patients when required.
On 14 October 1994 she was driving her vehicle along South Street, Kardinya, and stopped at a red light. When the lights changed to green she moved forward but her car "semi-stalled" whereupon the following vehicle (driven by the first defendant) collided into the rear of her vehicle, pushing it into the intersection.
The plaintiff suffered whiplash type injuries to her neck, upper back and shoulders. The following day the plaintiff could not move her neck or get up from the floor and she suffered neck spasms.
Upon the plaintiff's return to work, after four to five days rostered off, she reported her condition and was assigned light duties.
In February 1995 the plaintiff was assigned the position of engineering clerk which work involved computer duties, data entry, allocation of jobs to tradespeople, invoicing, dealing with medical equipment and medical gases. This is sedentary work.
On 17 October 1994 the plaintiff was seen by Dr Adams who found no neurological injury and noted a full range of movement. He recommended osteopathic treatment.
By 29 November 1994 there was little improvement and an x‑ray report found no bony injury. The cervical spine appeared normal with normal range of extension and flexion.
The plaintiff attended for osteopathic treatment during October and December 1994. She then ceased treatment, saying that she was "better". She next attended for osteopathic treatment on 20 April 1995 and in May 1995.
From 24 May 1995 to the present time the plaintiff has regularly attended for physiotherapy treatment. The particulars of this treatment are recorded in exhibit C.
Whilst I find the plaintiff did tell the osteopath that she was "better" I accept that in reality she decided to stop that treatment as she was deriving no benefit from it. The physiotherapy treatment started almost immediately she stopped the osteopathic treatment.
The plaintiff was prescribed anti‑inflammatory medication.
In January 1996 a general practitioner, Dr Ukalovich, saw the plaintiff and recorded that the plaintiff was still experiencing occipital headaches and neck pain but her overall condition had improved. Physiotherapy treatment appeared to be helping her. She presented, however, with reduced range of neck movement with rotation to the right side. All other neck movements were normal. There was tenderness to the upper paracervical musculature and to the right trapezius musculature. She was diagnosed as having suffered a soft tissue injury to the neck.
On 22 March 1996 Dr Ukalovich recommended cessation of regular physiotherapy treatment and considered that the "mainstay of treatment will be basically a personal exercise programme".
On 23 August 1996 the plaintiff complained of worsening of neck pain with a "sensation of her neck cracking" and occipital headaches. This she attributed to work on the computer keyboard 90 per cent of her working time. He recorded a fairly good range of neck movements although flexion was restricted. Dr Ukalovich referred the plaintiff back for physiotherapy treatment as this appeared to be the only form of treatment which gave her relief.
Symptoms continued to trouble the plaintiff into 1997. After a day's work at the computer terminal she noticed increased neck pain and she felt neck movement restriction when driving her car. Physiotherapy treatment, anti‑inflammatory medication and analgesics were continued.
By April 1998 Dr Ukalovich considered that physiotherapy treatment could be ceased.
The plaintiff was able to continue with her usual work as a clerk. By 6 May 1998 (the date of the second accident) the plaintiff was fit for her usual work as a clerk but was unable to become involved in employment which required heavy lifting.
On 6 May 1998 the plaintiff was travelling home from work when the second defendant pulled out in front of her and struck her car. She banged her knee on the dashboard of her car at impact. The knee was bruised but this subsided within a week or so.
As a consequence of the second accident Dr Ukalovich assessed the plaintiff as being partially unfit for work until 28 May 1998. Upon examination he found the plaintiff to be tender at the right paracervical muscles, the right trapezius muscles and at the C2, 3, 4, 5 and 6 vertebrae. She showed a reduced range of movement. There was tenderness to the inside of her right kneecap but this appears to have no part in the plaintiff's current claim to be incapacitated for work.
The second accident exacerbated the original soft tissue injury to the neck.
By the end of July 1998 the plaintiff was fit for her usual duties as a clerk.
The plaintiff continued then to suffer headaches and has found that the movement of raising her arms above her head, hanging out the washing, dusting and other extension of shoulder and neck movements caused discomfort.
She has discomfort sleeping at night.
The plaintiff has had occasional days off work due to her injuries and has claimed these as sick days. Her employment, however, has not been broken and she remains fit for work as a clerk.
Presently the plaintiff has slight tenderness to the right trapezius and paracervical musculature and slightly reduced neck rotation to the right side. She will have some residual neck and shoulder pain on a long term basis.
Whilst the plaintiff has experienced some benefit from physiotherapy treatment I am not satisfied that such treatment should be undertaken far into the future. Mr Anastas, in March 1998, advised cessation of such treatment.
Accepting Mr Harper's prognosis that the plaintiff may require intermittent massage or physiotherapy over the next six to nine months her outlay for this treatment will be of the order of $270.
The plaintiff is fit to continue her work as a clerk but her movements are restricted such that she should avoid heavy lifting, reaching above her head and prolonged keyboard duties. There may be improvement in the future regarding these restrictions but this is not yet evident.
Both injuries were mild and the plaintiff has a mild residual disability of the cervical spine.
There has been some improvement since the second accident but she has not quite returned to the condition in which she was before the second accident.
In general terms I am impressed with the plaintiff's motivation. She returned to work with the St John of God Hospital as soon as she could and accepted without question a change to her clerical work. This work she enjoys. She does not appear to have exaggerated her symptoms to the various medical practitioners. It is notable that on occasions she has given the impression that she had almost fully recovered from her symptoms and has said that her residual symptoms are slowly improving.
She told Mr Hooker, an orthopaedic surgeon, in November 1998 that she had recovered almost to the state in which she was at the time of the second accident.
On the other hand, I accept her evidence that she suffers from neck spasms continuously. She takes frequent breaks from her computer terminal to relieve the pain and stiffness in her neck and shoulders and needs to get up and walk around. I accept her evidence that she has difficulty straining to perform a number of household duties including vacuuming, ironing, hanging up clothes, dusting, gardening, washing the car and handwashing clothes.
Before the accident the plaintiff was involved in some sporting activities and some of these, such as competitive basketball, netball and Tai Kwon Do she cannot manage. She can, however, play social netball and she can involve herself in normal dancing. Croatian folkloric dancing is rather more vigorous and I accept her evidence that she cannot involve herself in that activity.
No past economic loss is claimed by the plaintiff and she rightly points out that she suffers no economic loss by reference to her present income as a clerk.
The plaintiff's concern is that her prospects of employment in the future are diminished, should she have to change employment, for she now cannot involve herself in heavy patient care duties.
I accept that in all probability the plaintiff will not be able to involve herself in heavy patient care duties in the future. To that extent the injuries may be productive of future economic loss.
The prospect, however, that the plaintiff will suffer any future economic loss is fairly remote. The plaintiff's condition is unlikely to deteriorate: if anything it will improve.

Damages

I turn then to the specific heads of damage.

First accident

Loss of amenities - general damages

The injury was relatively mild and continued to be mild to May 1998. Nevertheless in all probability there was a mild permanent residual disability in the neck and shoulders from which the plaintiff could expect to experience some discomfort and headaches.
She was disabled as a consequence of that injury from engaging in vigorous sporting activity and she was incapacitated for work which required heavy lifting of patients. Such work would have had the potential to increase her symptoms. She is, though, entirely happy with work as a clerk.
The plaintiff's measure of damages could not exceed 10 per cent of a most extreme case and making allowance for the deductible sum of $10,500 (amount B) I award the plaintiff $11,400.

Future potential economic loss

It is unlikely that the plaintiff will suffer any future economic loss but there is, as I have observed, the remote prospect that there may be such a loss. The amount to be awarded to the plaintiff must be a small nominal sum and I assess this at $5,000.

Second accident

Loss of amenities - general damages

The plaintiff's condition has become marginally worse since the first accident. She has suffered increased headaches and discomfort and she may be less able to involve herself in heavy physical activities. I emphasise that her condition has not deteriorated markedly and may well improve.
An award of the order of 5 per cent of a most extreme case is warranted under this head and I award the plaintiff $450 after allowing for the amount B.

Future economic loss

The plaintiff's potential for future economic loss is not increased as a consequence of the injuries suffered in the second accident and I make no award under this head.

Future treatment

Based on the view of Mr Harper that some physiotherapy treatment might be warranted over the next six to nine months and allowing the plaintiff a sum for anti‑inflammatory medication and a few visits to a general practitioner I award the plaintiff a global sum of $1,000.

Special damages

I allow the plaintiff the cost of physiotherapy treatment ($654.10) represented by exhibit D. She found this helpful.

Summary of awards

First accident
General damages $11,400.00
Future economic loss $ 5,000.00

Second accident
General damages  $     400.00
Future treatment  $ 1,000.00
Special damages - physiotherapy         $     654.10
$18,454.10

I award the plaintiff $18,454.10.