Mirtsopoulos v Lacerenza - [2000] WADC 300

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MIRTSOPOULOS -v- LACERENZA [2000] WADC 300

CORAM: CHARTERS DCJ

HEARD: 30, 31 OCTOBER 2000

DELIVERED : 21 NOVEMBER 2000

FILE NO/S: CIV 4943 of 1998

BETWEEN: DIANNE FAYE MIRTSOPOULOS
Plaintiff
AND
STEFANO LACERENZA
Defendant

Catchwords:

Damages - Turns on its own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act

Result:

Award of $22,175

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Marks & Sands

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

Nil

Case(s) also cited:

Nil

CHARTERS DCJ: The plaintiff is a 28 year old former housekeeper and hairdresser who claims damages following injury suffered in a motor vehicle accident on 8 September 1997.
The plaintiff was driving her mother's motor vehicle along Morley Drive when a vehicle came through a stop sign and collided with the vehicle she was driving. Her vehicle was written off and whilst initially she felt shocked, the next day she was very sore and stiff in the neck and shoulder area. She suffered headaches and saw her general practitioner, Dr Rozsa.
The particulars pleaded of her injuries and symptoms include soft tissue and ligamentous injury to the cervical spine, pain, muscle spasms and restricted mobility to the neck, pain to the shoulders and arms, numbness to the left arm, tingling sensation and numbness to the fingers of the hands, injury to the thoracic and lumbar spine and disturbed sleep.
She claims general damages, future economic loss and the cost of future medical and chiropractic treatment.
The defendant admits liability for the accident and resulting injury but puts the plaintiff to prove of her damages.

Relevant history and findings of fact

The plaintiff left school after completing Year 9 and completed a hairdressing apprenticeship and beauty therapy training in 1989. She was then employed as a senior hair stylist and beauty therapist from 1990 to 1991; then she was employed from 1991 to 1992 as senior stylist, beauty therapist and receptionist. She completed a makeup artistry training in 1992 and was employed as a makeup artist, beauty therapist and hairdresser and then in 1992 to 1993 as a hair stylist and beauty therapist.
During 1993 to 1995 the plaintiff was in the United Kingdom employed as a manageress and senior hair stylist and upon her return to Western Australia in 1995 or 1996 she was again employed as a manageress and senior hair stylist.
In 1996 the plaintiff was employed as a room attendant at Cable Beach Club in Broome and in 1996 or 1997, but before the 8 September 1997, the plaintiff completed a 10 week course as a hotel receptionist. At the date of the accident she was employed as a housekeeper - a room attendant and laundry worker - at Cottesloe Beach Hotel. My finding that the plaintiff completed the hotel receptionist course before the accident is based upon what she told Mr John Saunders, a general surgeon and specialist in rehabilitation medicine, in March 1998. Mr Saunders was emphatic that this was what she told him and the plaintiff's evidence that she may have completed this course after the accident is not accepted.
Dr Rozsa saw the plaintiff on 9 September 1997 and found that she had suffered a moderately severe spinal injury involving her cervical and lumbar spine as well as the upper thoracic region in the accident. She had pain in her neck which became progressively worse over the next few weeks and her movements were reduced to a quarter to a third of normal range. She developed pain across both shoulders and down to her arms with tingling in the fingers of both right and left hands.
After some four to five weeks the plaintiff's condition improved and by 21 October 1997 she was making quite a good recovery with physiotherapy. By January 1998 the plaintiff was able to manage light housework at home and had a full range of pain free movements in her neck and back. She then suffered a viral infection which aggravated the neck pain and her headaches returned. By February 1998 she had lost about 50 per cent of her range of movement in all directions.
By 1 May 1998 the plaintiff's neck condition had recovered to the extent that she had a full range of movement and was able again to attempt to return to work. Dr Rozsa predicted that she would have periodic exacerbations of her neck, shoulder and back stiffness especially after working as a hairdresser, but he felt that she would be able to cope with full‑time work and that the exacerbations would become less frequent and less severe. He described her improvement rate as fairly rapid and she required little, if any, treatment.
In September 1998 Dr Rozsa referred the plaintiff to Dr Whiteside, a specialist in pain management, who treated the plaintiff with injection therapy for what he diagnosed as myofascial strain - strain to the muscles and ligaments. The treatment continued over some months but did not significantly improve her condition.
By February 1999 Dr Rozsa reported that the plaintiff had a good range of movement of her back and neck, although there still remained some tenderness along her spine. There had been overall improvement, she coped well at work with combined retailing and hairdressing and continued to increase her levels of activity outside the work place. The plaintiff had been advised to engage in therapy in a swimming pool which she did not follow through but she did follow the advice that she exercise herself at a gymnasium and this programme of exercise appears to have helped her condition.
The plaintiff saw a naturopath, who has not given evidence, who referred the plaintiff to a chiropractor, Mr Grant. The medical evidence generally suggests that manipulation will produce no long term benefit and such treatment in the future is not warranted.
In July 1998 the plaintiff commenced employment as a hairdresser and retail assistant with Shampoo Shop at Garden City Shopping Centre Booragoon.
Upon her being interviewed for this role the plaintiff disclosed the injury suffered from the motor vehicle accident and it is plain that she expressed some reservation that she would be able to work full‑time as a hairdresser. She was therefore employed primarily with the administrative work in the retail side of the shop. About 5 to 10 per cent of her work time was spent as a hairdresser but she made it plain to her employer that she did not want to continue work as a hairdresser. In a day in August 1999 when a customer came in she asked her employer "How long am I going to have to do this? I don't want to do it any more". She made it plain that she did not want to work as a hairdresser but at no stage during her employment with Shampoo Shop did she make any complaint of discomfort or disability.
The plaintiff was one of the best retailers employed at the shop and was known as a vegetarian and one who looked after her body by exercising everyday. She was an excellent worker, preferring retail work to hairdressing.
Upon the plaintiff refusing to do any hairdressing work the employer decided to employ her full‑time in the retail position and her rate of pay was adjusted in mid‑September 1999 by a reduction of about $30 a week net.
The plaintiff was unhappy with the reduction and eventually left that employment in November 1999.
She worked for Shampoo Shop from July 1998 until November 1999 without making any complaint that she could not work as a hairdresser on account of any disability. She appeared to cope well with the work.
Moreover, the medical evidence is compelling that the plaintiff is fit for work in a retail establishment and is able to undertake some hairdressing work. She was not incapacitated for the work she was doing at Shampoo Shop and I find that she did not decline hairdressing work on account of her physical condition.
The plaintiff had, before the accident, shown a real interest in working as a receptionist in the hotel industry and she is not incapacitated for this kind of work.
The injuries suffered by the plaintiff were of a soft tissue character to the lumbar and cervical spine. That to the lumbar spine has substantially resolved and there is some small residual disability to the cervical spine. There is no neurological impingement and the plaintiff is physically fit for most activities. She exercises regularly as she has been instructed to do and she has improved her level of fitness and muscle strength.
There is no need for invasive of manipulative treatment.
When the plaintiff saw Mr John Saunders in March 1998 she told him that she was then symptom free but occasionally had twinges in her back and neck when she did her housework. She also told Mr Saunders that she had worked as a hairdresser but had given that up and that in her history of employment she had been employed for no longer than six months in any one position. She was then fully mobile and Mr Saunders did not consider that she would have any permanent disability as a result of the injuries suffered in the accident.
She did, however, present with further occurrences of pain which at times were quite severe but Mr Saunders regarded her condition as very minor.
Mr Saunders saw no reason why the plaintiff could not be employed as a hairdresser, either full‑time or part‑time - by this I understand him to mean that she was capable of that work unless for any reason she has a recurrence of her symptoms.
I accept that evidence.
I now turn to the heads of damage.

General damages

The plaintiff suffered a moderately severe whiplash type injury to her neck and to a lesser extent her lumbar spine. This was initially quite painful and I have no doubt it was distressing. After some months the symptoms subsided but she has from time to time had exacerbations of pain. The symptoms are improving and it may indeed be the case that in time they will disappear completely. There is the prospect, however, that there will be some residual symptoms.
I regard the plaintiff's injuries as about 10 per cent of the most extreme case and consequently I award the plaintiff $22,500. From this award must be deducted amount B, $11,000, resulting in a net award to the plaintiff under this head of $11,500.

Past loss of earnings

I find the plaintiff has suffered no past loss of earnings.

Future economic loss

The plaintiff currently has no economic loss arising from the accident. The plaintiff is capable of employment such as that at the Shampoo Shop, in the retailing industry with some hairdressing activity, working in the hotel industry as a receptionist and in many other forms of employment.
I accept that the plaintiff ought not to be accepted as fit for full‑time hairdressing work as this posture may result in exacerbations of her symptoms. I find, however, that it is unlikely that the plaintiff would choose this form of employment over work as a receptionist in a hotel or as a retail salesperson.
Nevertheless it may be the case in the future that from time to time the plaintiff has exacerbations of neck pain, perhaps brought on by a viral infection as has happened in the past, which would incapacitate the plaintiff temporarily for work. For this she must be compensated. The damages must be of a reasonably modest sum to reflect my view that it is unlikely that there will be such incapacity or that it will be of a long duration. Under this head I would award the plaintiff a global sum of $10,000.

Future treatment

I decline to award the plaintiff damages for future chiropractic treatment or for treatment of the kind administered by Dr Whiteside. Chiropractic treatment has no long term benefit and Dr Whiteside's treatment was not successful and would not be desirable in the future.
From time to time the plaintiff may require mild analgesics and she may occasionally require to see her general practitioner.
Under this head I award the plaintiff $500.

Past treatment

The defendant has paid for chiropractic treatment to the plaintiff and accordingly I make no award for that.
There is a small amount outstanding to Dr Whiteside and since the plaintiff was referred to Dr Whiteside by her general practitioner, I regard that as a reasonable expense and accordingly award her the outstanding cost of that treatment, namely $175.

Summary of awards

General damages  $11,500.00
Future economic loss  $10,000.00
Past treatment  $     175.00
Future treatment  $     500.00
$22,175.00

Conclusion

I award the plaintiff $22,175.