Moynes v Heilbronn
[2015] QDC 143
•5 June 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Moynes v Heilbronn & another [2015] QDC 143
PARTIES:
SIOBHAN ROSALEEN MOYNES
(Plaintiff)And
MATTHEW HEILBRONN
(First Defendant)And
ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850)
(Second Defendant)FILE NO/S:
1985/11
PROCEEDING:
Claim
DELIVERED ON:
5 June 2015
DELIVERED AT:
Brisbane
HEARING DATE:
11 – 13 May 2015
JUDGE:
Bowskill QC DCJ
ORDER:
1. Judgment for the plaintiff against the defendants in the amount of $57,942.88.
2. Any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 14 days.
CATCHWORDS:
DAMAGES – PERSONAL INJURIES – QUANTUM – Where dispute as to extent and consequences of whiplash injury suffered in motor vehicle accident – Whether subsequent symptoms, including headaches, causally related to the accident – Dispute as to various heads of damages, including past loss of earnings and future loss of earning capacity
Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2003 (Qld)Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Onassis Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Withyman v State of New South Wales [2013] NSWCA 10COUNSEL:
R Nicholls for the Plaintiff
G O’Driscoll for the Defendants
SOLICITORS:
Quinlan Miller and Treston for the Plaintiff
McInnes Wilson Lawyers for the Defendants
The plaintiff was injured in a motor vehicle accident on 27 August 2007 when the first defendant’s car collided with the rear of her car, as she was waiting at an intersection to turn. By these proceedings, she claims damages for the injury she suffered as a result. Liability is admitted. Quantum is not.
In so far as the quantum of damages is concerned, it is admitted the injury suffered by the plaintiff, as a result of the collision, was a musculoligamentous strain injury involving the supporting structures of the cervical spine (that is, whiplash).
What is in issue is the extent and consequences of that injury, in particular the extent to which it has caused, or will cause the plaintiff to suffer economic loss.
The plaintiff’s case
The plaintiff pleads that the injury caused her to suffer:
(a)pain in the occipito-cervical area of her head and neck; and
(b)severe regular headaches about twice per month which last about 48 hours.[1]
[1]See [9] of the Further Further Amended Statement of Claim, filed 12 May 2015 (statement of claim).
The plaintiff claims that, by reason of her injuries, she has and will suffer damages comprising:[2]
(a)general damages, for pain, suffering and loss of the amenities of life in an amount of $5,000 (calculated on the basis of an Injury Scale Value of 5, for the purposes of schedule 4 of the Civil Liability Regulation 2003, in reliance upon a permanent impairment assessment by Dr Gillett of 3%);
(b)past economic loss in the amount of $112,969.55, on the basis that, following the accident, she was unable to return to the full level of her pre-accident employment (together with interest and past superannuation);
(c)future economic loss in the amount of $144,967.16, on the basis that she will suffer an ongoing loss of income by reason of being unable to continue to work the same number of hours/days as she did before the accident; or alternatively a global amount of $100,000 (together with future superannuation);
(d)the cost of the provision of care, assistance and services in the future (1.5 hrs per week at the rate of $30 per hour), in the amount of $33,507;
(e)past out of pocket expenses in the amount of $12,210.98;
(f)future medical expenses (pain relief medication), estimated at $1,000; and
(g)Fox v Wood damages in the sum of $3,262.
[2]See [10] of the statement of claim; and the summary which appears in [88] of the plaintiff’s submissions.
The defence
By their defence, the defendants put in issue the extent of the injury suffered by the plaintiff, and the consequences of it, among other things:
(a)admitting that the plaintiff “suffered a minor musculoligamentous strain injury involving the supporting structures of the cervical spine in terms of time and effect for a temporary and limited period only following the collision, which has not given rise to any permanent impairment”;[3]
[3]See [6(b)] of the further amended defence of the first and second defendants filed 16 October 2014 (defence). Emphasis added.
(b)admitting that the plaintiff “suffered some pain in the occipito-cervical area of her head and neck in the past for a limited and temporary period only following the collision, which has not given rise to any permanent impairment”;[4]
[4]See [6(c)] of the defence. Emphasis added.
(c)admitting the plaintiff has suffered “some economic loss in the past”, but not to the extent claimed by the plaintiff, on bases including that:
(i)the claim is contrary to the medical evidence;
(ii)the plaintiff has a pre-existing medical condition;
(iii)the plaintiff’s injuries were minor and have resolved;
(iv)the plaintiff has had no employment incapacity, other than for a limited and temporary period only immediately after the accident;[5]
[5] See [6(dA)] of the defence.
(d)denying that:
(i)the injury caused the plaintiff to suffer severe regular headaches about twice per month lasting about 48 hours;
(ii)the plaintiff has a permanent impairment of 3%, on the basis that it is out of proportion to her actual injuries and contrary to medical evidence;
(iii)the plaintiff will suffer impairment of her earning capacity in the future, for essentially the same reasons as set out in sub-paragraph (c) above;
(iv)the plaintiff is entitled to recover damages for future care and assistance.[6]
[6] See [6(j)] of the defence.
The defendants’ reasons for their denials are articulated on page 10 of the defence as follows:
“(D)The Plaintiff has a pre-existing migraine condition which pre-dates the accident (“pre-existing condition”);
(E)If the Plaintiff does have any ongoing symptoms related to her cervical spine, head pain or severe regular headaches (all of which are denied) then these symptoms are:
(1)Attributable to the natural progression of the pre-existing condition;
(2)As a result of the Plaintiff’s pre-existing condition rendering the Plaintiff susceptible to further spontaneous bouts of pain/symptoms independent of any injury caused as a result of the accident;
(3)Due to an intervening event in the Plaintiff’s life giving rise to symptoms affecting the performance of her activities of daily living and employment;
(G)It is contrary to the medical assessment of the capabilities of the Plaintiff.”
In her reply, the plaintiff admits that she suffered migraines prior to the accident, but pleads that her pre-existing migraine condition is unrelated to the symptoms suffered following the accident, and that the headaches suffered subsequent to the accident are different to the migraines (as particularised in the reply).[7]
[7]See [13] of the Amended Reply to the Further Amended Defence of the First and Second Defendants, filed 31 October 2014 (reply).
In summary, the competing positions of the plaintiff and the defendants, on the quantum of damages, are as follows:
Head of Damage Plaintiff Defendants General damages $ 5,000.00 $ 4,000.00 Past economic loss, plus interest $120,759.03[8] $20,000.00 Past superannuation at 9% $ 10,167.26 $ 1,800.00 Future economic loss $144,967.16
(alt $100,000)
Nil Future superannuation at 9% $ 13,771.88 Nil Future care $ 33,507.00 Nil Future expenses $ 1,000.00 Nil Past special damages $ 12,210.98 $12,031.24[9] Fox v Wood $ 3,262.00 $ 3,262.00[10] [8]The amount of loss claimed by the plaintiff is $112,969.55 (see [10(b)] of the statement of claim). Interest totalling $7,789.48 is claimed (see [66] and [67] of the plaintiff’s submissions).
[9]This figure was said to be agreed. The difference between the final figures claimed by the plaintiff, and the defendant, reflect an additional $179.64 for interest on part of this amount (para [79] of the plaintiff’s submissions).
[10] T 3-6.20.
Having regard to the issues in dispute, it is necessary to refer in some detail to the medical and other evidence.
Circumstances pre-accident (August 2007)
The plaintiff was born on 10 June 1961. She was therefore aged 46 at the date of the accident (and is now aged almost 54). She is, and was in 2007, married with three children.
As at August 2007, her children were aged 11, 14 and 18.[11] Her children are now aged 19, almost 22 and 26. They all still live with her and her husband, including her eldest daughter’s partner and their new baby.[12]
[11] T 1-23.2.
[12] T 1-19.7-.13.
At the time the accident occurred, the plaintiff was working full time, in effectively 3 jobs spread over a five day week.[13]
[13] T 1-19 to 1-22.
One of her employers was Brisbane Catholic Education, for whom she worked as a library assistant at two schools, St Columbus School in Wilston and Holy Rosary School in Windsor. She worked Monday to Thursday at St Columbus, and Friday at Holy Rosary (from about 8.30am to 3.00pm). At St Columbus the plaintiff worked with the librarian, a Mrs Kate Anderson (who gave evidence at the trial). At Holy Rosary she worked alone.
In the afternoons, the plaintiff had another job, employed by Centacare Child Care Services, at the after school care for Our Lady of the Assumption school. Her role was administrative, doing the financial accounts, and sometimes helping out with supervision of children. She worked here from about 3.30pm to 6.30pm (a 3 hour shift). It was not clear from her evidence, but I infer that the plaintiff did this Monday to Thursday, because the employment records from Centacare show that she was employed for 12 hours per week.[14]
[14] Exhibit 1, p 317. See also [51] of the plaintiff’s submissions.
In addition to that busy work life, the plaintiff was almost entirely responsible for the household tasks, including cleaning the house; doing the laundry; making beds; cooking and washing dishes; doing the grocery shopping. Her husband and children did not undertake or assist with any of these household tasks, save for minor assistance with the shopping and an occasional meal.[15]
[15] T 1-23.12-.24 (plaintiff); T 2-16 (plaintiff’s husband).
Prior to the accident, her hobbies included reading and working in the garden. She also enjoyed going to the cinema.[16]
[16] T 1-24.
In terms of relevant medical history, the plaintiff gave evidence of suffering from migraines prior to the accident. She said these migraines “were mostly to the front of my head – left-hand side in one particular eye – my left eye. They become quite a sharp pain in my eye and come over the top of my head. I sometimes would get visual disturbances with that, and to an extent that I would be vomiting sometimes with them”.[17] She would sometimes get dizzy as well.
[17] T 1-25.16-.20.
The plaintiff said that, before the accident, she would have sometimes six to eight migraines a year, of varying severity.[18] She said she would not see her GP every time she had a migraine, only if she couldn’t control the pain (maybe twice a year).[19] That was her evidence at the start of her examination in chief. Later on, she was asked about having a hysterectomy in 2004, and whether that had any impact on the migraines. She said it reduced them to “about four a year”.[20]
[18] T 1-25.31-.39.
[19] T 1-26.4-.17.
[20] T 1-42.41.
The plaintiff’s husband also gave evidence that the migraines slowed down after she had an operation in 2004, to maybe one a quarter.[21]
[21] T 2-17.5.
The notes from the Ashgrove Clinic, where the plaintiff regularly saw her GP, commence in January 2000, with the plaintiff seeing Dr Yates about a migraine, and being prescribed imigran and maxolon tablets.[22] There are various entries related to that condition, including:
(a)29 May 2001 – “[f]airly frequent perimenstrual migraine”, no medication prescribed;[23]
(b)17 July 2002 – “[h]eadache a few days with vomiting, similar to usual migraine but worse”, stemetil tablets prescribed;[24]
(c)18 December 2004 – reference to the plaintiff having had a vaginal hysterectomy on 6 December;[25]
(d)20 December 2004 – “[i]ntractable vomiting & headache today, probably migraine only, no new signs…”, injections of maxolon and tramal given;[26]
(e)21 September 2006 – “2/7 headache & vomiting”, injections of maxolon and tramal given.[27]
[22] Exhibit 1, p 15.
[23] Exhibit 1, p 14.
[24] Exhibit 1, p 14.
[25] Exhibit 1, p 11.
[26] Exhibit 1, p 11.
[27] Exhibit 1, p 11.
Circumstances post-accident
The accident occurred on the afternoon of 27 August 2007, as the plaintiff was driving from one place of employment (Catholic Education) to the other (Centacare).[28]
[28] T 1-30.21.
In her evidence at trial, the plaintiff said that when the accident happened, she felt “[e]xtreme pain in the back of my head and a lot of pressure in the back of my head. And it extended down my shoulder”. When she was asked for how long after the accident she continued to feel that extreme pain, she said “I feel it every week”,[29] although she later said that it got a little better in 2011, when she reduced her hours.[30]
[29] T 1-27.4-.11.
[30] T 1-27.15.
She gave evidence that this pain resulted in headaches, which she described as “[a] lot of pressure, again, in the back of my head, to the extent that it went down my arm and just never stopped – didn’t seem to stop unless I took pain killers”. She said they were “completely different” from the migraines she suffered from, because “it was just constantly there. And it was at the back of my head and not the front of my head”, and she had no visual disturbance; although she did sometimes feel nauseous and dizzy.[31] Her evidence was that, since the accident, she has had a migraine “probably one or two times a year”.[32]
[31] T 1-27.22-.39.
[32] T 1-43.2.
The plaintiff’s husband, when asked to describe what he observed of the impact of the accident on the plaintiff said, “[t]he most noticeable thing was just her anxieties. She seemed to get a lot more anxious. The pain – the pain she was getting mainly was through the back of her neck, the back of her head areas, which seemed a lot more severe, what I could see, and she had a little – areas of – sort of moving, or if she did a little bit of work, down[33] on her arms and things like that”.
[33]T 2-17.20-.25. The word which appears at .25 is “done” rather than “down”, but my recollection, and the sense of the plaintiff’s husband’s evidence, is that he said “down”.
She was taken by ambulance from the scene of the accident to the Royal Brisbane and Women’s Hospital (RBWH). According to the Ambulance records, she complained of “10/10 pain to back of head, neck and thoracic region”.[34]
[34] Exhibit 1, p 129.
She was examined at the RBWH, and it seems “simple analgesics, physical measures and physiotherapy were advised”.[35] X-ray and CT scans performed on 27 August 2007 showed no fractures and were otherwise normal.
[35] Exhibit 1, p 136 (referral from emergency department of RBWH to Allsport Red Hill (physiotherapy)).
After that, the plaintiff saw her GP, Dr Paul Yates, at the Ashgrove Clinic. Dr Yates’ notes, as recorded in the electronic files held by Ashgrove Clinic, reveal that he saw the plaintiff on 3, 7 and 14 September 2007, noting that her neck was “slow to settle”. Dr Yates also recorded, on 14 September, that the plaintiff had “some emotional reaction to it” (ie the accident).[36]
[36] Exhibit 1, p 10.
Having been referred by a doctor at the RBWH, the plaintiff attended Allsports Physiotherapy at Red Hill for physiotherapy, from shortly after the accident. Relevantly, on 14 September 2007, the physiotherapist wrote to Dr Yates in the following terms:
“[The plaintiff] is steadily improving objectively with her cervical ranges, reduction in headaches in her frontal region. She continues to experience headaches at the base of her neck / skull. However, [the plaintiff’s] neck disability questionnaire is worsening with her form completion this week reporting marked worsening in her functional abilities. I am concerned with her emotional and psych well-being following the MVA and would kindly request you explore this a little further with her.”[37]
[37] Exhibit 1, p 142.
On 21 September 2007 (about 3 weeks post accident), Dr Yates recorded “Some R arm radicular pain still”. On 24 September this was said to be “worsening”.[38] As a result, the plaintiff was referred for a CT scan of her cervical spine, which showed “[n]ormal cervical alignment with marked loss of cervical lordosis, possibly as a result of spasm. No bony or disc abnormality is demonstrated in the cervical spine and specifically, there is no evidence of C5/6 lesion” (the pain in the right arm having been said to be suggestive of C5/6 radicular pain).[39]
[38] Exhibit 1, p 10.
[39] Exhibit 1, p 139.
When the plaintiff saw Dr Yates on 5 October 2007, his notes record that she was “[n]ot too bad but some migrainous headache… [CT result noted]. Some R arm and shoulder pain at times, probably associated with spasm, feeling better emotionally, driving normally. Wants graduated return to work.”[40]
[40] Exhibit 1, p 10.
On 12 October 2007, the plaintiff saw a different doctor at the Ashgrove Clinic, Dr Donald Lang. The notes of that attendance record, inter alia, “[p]ain not going away. Right elbow/forearm feels swollen by end of the day… Pain post right shoulder radiates to elbow. Lat elbow to thumb… Neck movement has improved.” The plaintiff was referred for an x-ray and ultrasound of her right shoulder,[41] both of which were normal.[42]
[41] Exhibit 1, p 9.
[42] Exhibit 1, pp 140 and 141.
At this time also, the plaintiff saw Mike Childs, occupational therapist, who assisted her with developing a return to work program, in conjunction with her employer (Catholic Education, St Columba’s primary school).[43]
[43] Exhibit 1, p 234.
The plaintiff had about six weeks off work after the accident, before starting a gradual return to work program (which involved starting with shorter hours, and increasing gradually). She said that she felt “exhausted” during this program, and was suffering pain at the back of her head and down her right shoulder and arm, as well as headaches.[44]
[44] T 1-29.21-.45.
The plaintiff saw Dr Yates again on 9 November 2007, on which occasion his notes record “[s]till some neck pain and R arm pain, probably raducular [sic] but not too severe & scans NAD, so expect gradual improvement”.[45]
[45] Exhibit 1, p 9.
The following day, on 10 November 2007, the plaintiff saw Dr Helen Longbottom at the Ashgrove Clinic. Her notes record “comes with a migraines and pain down the R arm; has been vomiting this morning O/E alert no focal signs PD migraine Plan; tramal 100 mgm imi and stemitel 12.5 mgm imi stat”.[46]
[46] Exhibit 1, p 9.
The day after that, on 11 November 2007, the plaintiff was feeling so unwell that her husband took her to the RBWH, where she was admitted and spent the next 5 days, and was discharged on 16 November 2007. In her evidence, she said that she “continuously had headaches that particular week. It got to the extent that I – I just wasn’t coping with them. I was getting very nauseous and the pain was getting quite extreme at the back of my head”.[47]
[47] T 1-30.5.
The plaintiff’s husband said he had not observed her in that condition prior to the accident.[48] When asked how he observed her to be different, he said “I noticed, you know, the anxiety of her and the actual struggle of coping with the pain”.[49]
[48] T 2-18.45.
[49] T 2-19.3.
The discharge letter written by the RBWH emergency department (Narelle Aram) to Dr Yates[50] records the following:
“[the plaintiff] presented to the Emergency Department at Royal Brisbane and Women’s Hospital on the 11 NOV 2007 at 07:57. The presenting problem was ONGOING HEADACHE AND NAUSEA.
The diagnosis was HEADACHE.
Thankyou for reviewing [the plaintiff]. She presented to the RBWD ED with a 3/7 Hx of occipital --˃ global headache, associated with vomiting. This is on a background of a history of migraines, and an RTC in Aug 2007 (with neck pain).
Ob’s normal. Examination unremarkable.
CT head normal. LP normal xanthochromia re ? SAH. See attached bloods for results.
[The plaintiff] has a migraine. She has been discharged on NSAID + panadeine forte.”
[50]Exhibit 1, p 177. The letter is dated November 12, 2007, which would seem to be a typographical error, since the plaintiff was not discharged until 16 November.
A discharge summary prepared by Dr Tanya Robb, neurology resident medical officer,[51] records that the plaintiff had:
“… a five day history of generalised headache, increasing in severity and not responding to simple analgesia. CT head and CSF analysis were unremarkable. It was felt that the headache was atypical, but possibly due to occipital neuralgia, with a vascular component, which was exacerbated by dehydration by vomiting. It is possible that the whip-lash injury in August 07, may also have contributed.
[The plaintiff] was treated with rest in neutral neck position, and gentle physiotherapy, with no manipulation. Her headache improved significantly throughout the admission. We are discharging her to the care of her GP with simple analgesia and have recommended that she continue Physiotherapy (with decreased mobilisation of joints).”
[51] Exhibit 1, p 178.
Because one of the issues at the trial concerned the comparison between the migraines suffered by the plaintiff, and the headaches she said she suffered post-accident, it is relevant to note that patient records for the plaintiff’s admission to the RBWH record a variety of descriptions of the headache she was then suffering:
(a)a nurse recorded on 11 November at 9.10am that the plaintiff “states vomiting continues with pain front of head and occipital region”;[52]
(b)a later examination, by whom I am not sure (10.30) records (presumably on the basis of what the plaintiff said), of the headache, “occipital --˃ global headache” and “constant pounding and radiating from back to front”;[53]
(c)a nursing note made later that night records that the plaintiff “states pain is still niggling but has moved more to back of head”;[54]
(d)a note made the next morning, 12 November, states “occipital headache continues” and later that day “continues to complain of frontal headache”;[55]
(e)notes made by a neurology registrar on 12 November describe the headache as “intractable global headache” and later as “occipital --˃ frontal pain”;[56]
(f)notes made on 13 November, by the same registrar, describe a 5 day history of “generalised headache”;[57]
(g)notes made by the physiotherapist on 15 November 2007 describe the headache as being in the “occipital region radiating forwards to forehead”[58] and records a history of headaches “more into eye than current distribution”, separately from a past history of migraines.[59]
[52] Exhibit 1, p 179.
[53] Exhibit 1, p 181.
[54] Exhibit 1, p 186.
[55] Exhibit 1, p 187.
[56] Exhibit 1, p 188
[57] Exhibit 1, p 191.
[58] Exhibit 1, p 193
[59] Exhibit 1, p 194.
On the same day that she was discharged from RBWH (16 November 2007), the plaintiff again saw Dr Yates. I infer that this visit was for the purpose of obtaining a workers’ compensation certificate from Dr Yates (rather than for treatment), given that the plaintiff had just that day been discharged from the hospital. Dr Yates’ notes on this occasion record “[h]as been in RBH 6/7 following previous consultation with ongoing headache & vomiting, full Ix [investigation[60]] clear including CT & LP[61]; final diagnosis migraine/neuralgic headache. Now on minor analgesics, Ibuprofen & Omeprazone”.[62]
[60] Dr Yates’ oral evidence at T 2-25 to 2-26.
[61] CT of her head, and lumbar puncture – Dr Yates’ oral evidence at 2-26.5.
[62] Exhibit 1, p 9.
In his oral evidence, Dr Yates explained that the “final diagnosis” in his notes was on the basis of the discharge summary from the hospital.[63] He did in fact issue a workers’ compensation certificate, certifying the plaintiff as unable to work from 10 November to 24 November 2007.[64] On this certificate the “diagnosis” was “neuralgic headache secondary to STI[65] cervical spine”. He was cross-examined about why he excluded “migraine” from the diagnosis; instead including this as a “pre-existing factor relevant to the diagnosis”. His evidence was, in essence, that on his understanding of the hospital’s discharge summary, the headache was “atypical”, meaning that it was not entirely typical of any single diagnosis, having some migrainous features, some tension headache features, and some suggestion of neuralgia (inflammation or irritation of a nerve), the latter suggesting connection with the cervical spine.[66]
[63] T 2-26.20.
[64] Exhibit 1, p 95.
[65] Soft tissue injury.
[66] T 2-34.1-.34.
When the plaintiff saw Dr Yates again on 23 November 2007, he recorded that she was “a little better, still pain base of neck, some dizziness, possibly low pressure effect secondary to LP [lumbar puncture]. Doesn’t want to go back to school as only 2/52 to go & afraid of aggravating it”.[67] He issued a workers’ compensation certificate, certifying that she was unable to work from then until 7 December, describing the diagnosis as “STI cervical spine with reactive headache”.[68]
[67] Exhibit 1, p 8.
[68] Exhibit 1, p 96.
The plaintiff saw Dr Yates again on 7 December 2007, when he recorded that she is “[n]ot too bad but some ongoing neck pains & associated headaches, radicular pain R arms have resolved”.
The plaintiff was seen by Dr Banney, Neurologist, during her admission to the RBWH. She also saw him for a follow up on 20 December 2007, following which Dr Banney wrote the following letter to Dr Yates:[69]
“I am writing to let you know that I saw this lady in the Neurology Outpatients on 20 December 2007. She is still complaining of pain felt in the back of the neck but mainly over the right trapezius region. This pain may be absent if she rests in certain positions but is brought on by movement, particularly of the neck, mainly neck extension. She also complains of dizziness at times and some nausea particularly when she is sitting with her head vertical. She does not now seem to suffer from specific headache.
On examination, there was some tenderness over the upper part of the right trapezius, just lateral to the spine. Pain also occurred in this area on movement. The fundi seemed normal. She had no evidence of BPV.
Opinion: This lady is considerably better than she was when I originally saw her. I think her ongoing symptoms relate mainly to musculo-ligamentous injury in the neck and trapezius region. There is also a small possibility that she could have a post-lumbar puncture headache associated with nausea.
I have asked her to try to rest completely over the Christmas period and to use standard analgesics combined with heat and massage. I am hopeful that her symptoms will settle with appropriate rest. I have not suggested any physiotherapy at the moment.”[70]
[69]Exhibit 1, p 198 (the letter is dated 25 January 2008, but states that it was dictated on 20 December 2007).
[70] Emphasis added.
Dr Banney did not give evidence at the hearing. Sadly, he has passed away. The plaintiff sought to place an interpretation on this letter which supported the plaintiff’s case of a connection between her headaches, and the injury she suffered in the accident. I do not consider that can be taken from this letter. The “ongoing symptoms” which the doctor is referring to in the third paragraph must be the symptoms the plaintiff is said to be “still complaining of” in the first paragraph (which is not headaches).
The plaintiff returned to Dr Yates on 4 January 2008, and his notes record “[s]till some positional neck pain & occasional migrainous headache. Feeling well, keen to work on rehab”.[71] On this occasion, Dr Yates again provided a workers’ compensation certificate, certifying the plaintiff as unable to work until 25 January 2008, with the diagnosis described as “STI cervical spine with R [right] radicular pain”.[72] On this certificate it is noted that the plaintiff is to be referred to the Wesley Pain Management Clinic. That referral was in fact made by Dr Yates, on 4 January 2008.[73]
[71] Exhibit 1, p 8.
[72]Exhibit 1, p 99. I note that the reference to “R radicular pain” is inconsistent with Dr Yates’ earlier note made on 7 December 2007, that the “radicular pain R arms have resolved”.
[73] Exhibit 1, p 100.
In terms of his use of the phrase “migrainous headache”, Dr Yates’ oral evidence was that he is referring to a headache that has some migrainous features, being somewhere on the continuum between a classical migraine headache and a classical tension headache.[74]
[74] T 2-29.34 to 2.30.2.
On 21 January 2008, the plaintiff was examined by Dr Alison Reid, Neurologist, at the request of WorkCover. In Dr Reid’s report prepared on that date,[75] under the heading “current situation”, she recorded:
“[The plaintiff] states that currently she is waking up three days a week with a headache. She rates the pain as a 6 on a visual analogue scale (0 = no pain, 10= worse possible pain).
She says the pain starts at the back of her head and radiates up over the vertex with associated nausea and lasts all morning.
[The plaintiff’s] right upper limb pain has settled.”[76]
[75] Report of Dr Reid dated 21 January 2008 (exhibit 5).
[76] Exhibit 5, p 2.
Of her own examination of the plaintiff, Dr Reid recorded:
“The contours of the neck and shoulder girdles are normal. There is no winging of either scapula. Cervical musculature was soft. There was no skull base tenderness.
With encouragement I found that she has a full range of neck and shoulder joint movements.
The optics discs are clear. The cranial nerves intact.”
Dr Reid was of the view that the five months that had then passed since the accident was “more than adequate time for her condition to have settled and ceased, and for her to have reached maximum medical improvement”, and that she believed the plaintiff “should be more than capable of returning to normal duties and hours at the beginning of the academic school year” (that is, 2008).[77]
[77] Exhibit 5, p 5.
I will return to Dr Reid’s opinion below.
After seeing Dr Reid, the plaintiff also went to see Dr Yates on 21 January 2008. Dr Yates’ notes record “[h]as seen neurologist today, booked for pain management clinic 2/52 from 18th Feb. Headaches a bit better but still present. Some doubt about going back to work next week. I would prefer to await report”[78] (which I infer is the report from Dr Reid).
[78]Exhibit 1, p 8.
A week later on 29 January 2008, Dr Yates recorded “[m]ore headache today, some nausea, some neckache”. On 2 February 2008, Dr Yates recorded “OK at present but headache last week”. On this date, he issued a workers’ compensation certificate, certifying the plaintiff as fit to return to normal duties from 5 February 2008.[79] On the same date, Dr Yates also wrote to Catholic Education, one of the plaintiff’s employers, noting that:
“[the plaintiff’s] Workcover entitlement has terminated & she will return to work 5/2/08, so far as she is able. However the recommendation to attend pain management course at Wesley Hospital remains, for 2 weeks on or before 18th February, & I would recommend that she be given leave to attend this in both her interests & yours as her employer.”[80]
[79] Exhibit 1, p 105.
[80] Exhibit 1, p 104.
The plaintiff went back to see Dr Yates 11 days later, on 13 February 2008, on which occasion Dr Yates recorded “[b]ack at Cath Ed, exhausted by end of work 3pm, unable to do other job at Centacare at present”.[81]
[81] Exhibit 1, p 7.
This prompted Dr Yates to write a letter to Centacare, dated 13 February 2008, stating:
“[The plaintiff] is currently suffering from neck pains & headaches subsequent to motor vehicle accident and pre-existing migraine
& neck pains.[82] She is fit for her work at Catholic Education but currently unable to complete her duties at Centacare. This will be reassessed after attendance at a pain management course 18th February to 29th February.”[83][82]Dr Yates’ oral evidence (at T 2-33.22-.24) was that he did not have any record of pre-existing neck pains as such, “so it’s possibly not particularly well-worded”.
[83] Exhibit 1, p 108. Strike out added.
It is apparent that the plaintiff did not at any stage return to her job with Centacare after the accident. Her employment with Centacare was formally terminated on 17 March 2008, seemingly in circumstances where the plaintiff had not responded to correspondence from Centacare enquiring as to her intentions regarding returning to work.[84]
[84] Exhibit 1, p 310.
The plaintiff attended the Wesley Hospital between 18 and 29 February 2008 and participated in a “back rehabilitation and pain management program” (referred to as the Wesley pain clinic).
In her evidence, the plaintiff said she found this beneficial, and that there was improvement in her pain levels after attending the Wesley pain clinic. Her husband also said he “felt she was in a better place” afterwards.[85] As part of the process, an exercise program was developed for the plaintiff, which she could continue with at home. She described this as “like my Bible”,[86] because she would refer to it when she needed to remind herself of the exercises she had to do.
[85] T 2-19.18.
[86] T 1-32.39.
At the end of the program, a “comprehensive report” was prepared by Dr Yaksich and Ms McGrory.[87] By way of “background information”, the report states:
“Onset of neck pain and headaches following a motor vehicle accident in august 2007. Returned to work on a graded return to work program after six weeks. Has ongoing headaches of varying severity. Admitted to RBH for one week with severe migraine. No lasting benefit from physiotherapy and acupuncture. Participation in The Wesley Back Rehabilitation Program recommended.”
[87] Exhibit 1, p 220.
A comparison of various things, on admission and discharge, is set out in the report (including pain levels, functional capacity assessment, safe lifting loads and psychological tests).[88] The report concludes with the following “recommendations”:
“Recommendations:
· Maintain physical conditioning program (refer Physiotherapy and Exercise Physiologist’s reports)
· Four further physiotherapy sessions to work on active trigger points (refer Physiotherapist’s report)
· Review of workstation by Mike Childs; return to work as a Librarian then additional work at Centacare one month later (refer Occupational Therapist’s report).
[88]No evidence was led addressing these comparisons, but on my analysis of the records from the Wesley relating to the plaintiff’s attendance at this program, it is apparent that these represent a summary of the various admission / discharge assessments undertaken by the occupational therapist, physiotherapist and psychologist.
The physiotherapist’s report[89] records that “[o]n discharge [the plaintiff] reported that she has made significant improvement. She reported she has experienced a significant reduction in the headaches she has been experiencing and stated that the pain in her neck is no longer constant. She should continue to make good improvement continuing with her current rehabilitation program.” A summary table, comparing various things “on admission” and “on discharge” includes reference to:
(a)on admission, “[c]onstant pain in upper cervical spine with pain referring into right upper trap / shoulder region 3-6/10” and “intermittent shooting headache 3 times per week”; and
(b)on discharge, “intermittent pain in upper cervical spine 3/10” and “minimal headaches”.
[89] Exhibit 1, p 221.
The occupational therapy report[90] recorded, relevantly, in relation to domestic activities of daily living:
“[The plaintiff] lives in a highset house with approximately 15 stairs. [She] states she is able to manage light household tasks such as meal preparation and washing dishes. She has difficulty with heavier tasks including vacuuming, mopping, sweeping and cleaning the bathroom, but manages with pacing. She is able to manage small amounts of gardening and her family help with grocery shopping. [She] drives a manual car.”
[90] Exhibit 1, p 222.
She was assessed as “may be capable of work of a sedentary nature”. In terms of the “pain disability index”, which is described as the individual’s self-rated level of disability (in terms of the degree to which chronic pain disrupts seven aspects of life), she was given a mean[91] score of 1.9 (on a scale of 0 to 10) on admission and 2.3 on discharge – the occupational therapist explaining that the increase indicates the plaintiff “feels slightly worse with daily living tasks since attending the program”.
[91]That is the scores for each of the 7 aspects of life are added up, and then divided by 7, to come up with a mean score.
The records from the Wesley, which are in evidence, include the questionnaires completed by the plaintiff which form the basis of this analysis. The plaintiff was cross-examined about one of these, being the “pain disability index” she completed on admission (18 February 2008).[92] Relevantly, the following two paragraphs appear at the top of the form:
“The rating scales below are designed to measure the degree to which several aspects of your life are presently disrupted by chronic pain. In other words, we would like to know how much your pain is preventing you from doing what you would normally do, or from doing it as well as you normally would. Respond to each category by indicating the overall impact of pain in your life, not just when the pain is at its worst.
For each of the seven categories of life activity listed, please circle the number of the sale which describes the level of disability you typically experience. A score of 0 means no disability at all, and a score of 10 signifies that all of the activities in which you would normally be involved have been totally disrupted or prevented by your pain.”[93]
[92] Exhibit 1, p 232.
[93] Emphasis in the original.
The seven categories, and the rating given by the plaintiff for each, are family home responsibilities (2), recreation (3), social activity (3), occupation (2), sexual behaviour (2), self care (0) and life-support activity (1) (resulting in a mean score of 1.9)
On discharge, the only changes were an increase from 2 to 3 for “occupation” and an increase from 0 to 2 for “self care” (which resulted in an increased mean score of 2.3).[94]
[94] Exhibit 1, p 238.
In contrast to those scores, when giving evidence at the trial, the plaintiff said she would describe her pain levels before attending as “10 out of 10”, and after attending “probably a six out of 10”.[95]
[95] T 1-33.7-.10.
In cross-examination, the plaintiff was taken to the 18 February 2008 questionnaire. After being referred to the introductory paragraphs (set out above), she agreed that she understood the import of the questionnaire was to record as accurately as she could how her pain was affecting her, and what they (the Wesley) could do for her to reduce that pain.[96] But then when asked about particular items (for example, circling 2 for family home responsibilities, and it being put to her that was because “you were having minimal effect upon your capacity to undertake your family responsibilities at that time”, she said she disagreed, because what she circled was the position “on that particular day that I went in”.[97]
[96] T 2-3.30 to 2-4.6.
[97] T 2-4.8-.27.
I do not accept the plaintiff’s evidence about that. It seemed to me to be a more recent justification, in light of the inconsistency between her evidence at trial, and the documented contemporaneous record from February 2008. The introductory paragraphs of the questionnaire are clear. The purpose of attending the pain management clinic was to get assistance with managing pain levels. There would be no point in the plaintiff limiting her answers to how she felt on “that particular day”, rather than providing a broader reflection of the impact of her symptoms on the various aspects of life which were asked about.
It was put to the plaintiff in cross-examination that what she circled on this document was consistent with what she told Dr Gillett later in 2008, and Dr Saines in 2010 (referred to below). She accepted that it was.[98] I find that earlier, recorded information to be more reliable than what the plaintiff relayed at the trial, that being some seven years after the events.
[98] T 2-5.23.
The plaintiff was also asked about the record made by the occupational therapist, that the plaintiff “manages with pacing” (see para [64] above), and said “Well, that was probably on that particular day”.[99] It seems to me the same conclusion can be reached about this response also.
[99] T 1-47.42.
The occupational therapy report included the following recommendations:[100]
“It is most important [the plaintiff] continue with a physical conditioning program to increase her functional tolerances for work and other activities of daily living.
It is also recommended that Mike Childs (performed previous Worksite Visit) do a subsequent visit with approval from Catholic Education to assess an appropriate chair for [the plaintiff’s] work at St Columbus… [She] may also require a footrest. It is recommended that [she] use a document holder… [The plaintiff] has also identified that she may require a suitable ergonomic chair at her second place of work as a Librarian at The Holy Rosary School.
It is also recommended that [the plaintiff] rotate activities and positions as much as possible. [She] feels she will be able to do her six hour days/five days a week at the Libraries with Catholic Education. When [she] is involved in playground duties she should not be involved in lifting or personal handling of children with disabilities.
[The plaintiff] should be able to return to her additional work at Centacare one month after returning to her Librarian duties with Catholic Education.”
[100] Exhibit 1, p 224.
The plaintiff was also assessed by a psychologist as part of the Wesley pain management program. This process also involved the plaintiff completing a questionnaire, described as a “multidimensional pain inventory”.[101] In the psychology report,[102] the plaintiff’s “profile of scores” on that questionnaire was analysed as follows:
[101] Exhibit 1, pp 250-257.
[102] Exhibit 1, p 225 (psychology report).
Pain Severity A low level of pain Interference Pain did not interfere significantly with activities involved in daily life Life Control Had a high amount of control and influence over daily life Affective Distress Was slightly agitated, anxious or irritable as a result of pain Support Not able to gain significant support from those around them Negative Responses Did not feel understood and supported by significant other Solicitous Responses Moderately encouraged by significant others to adopt a passive approach to pain Distracting Responses Moderate level of encouragement from significant other to participate in activities to draw attention away from pain Household chores Very high level of general housekeeping activities Outdoor work High level of involvement in outdoor maintenance activities Activities Away from Home High level of involvement in enjoyable outings Social Activities High level of involvement in social activities General Activity Level A very high amount of general duty, across a range of different situations
The plaintiff was not asked about this questionnaire in her evidence. However, counsel for the plaintiff made reference to it in her submissions, in response to the submissions on behalf of the defendant about the “pain disability index” questionnaire (referred to above). It seems to me that in interpreting what these questionnaires mean, it is important to have regard to the relevant medical professional’s analysis of them (as opposed to attempting to interpret them myself, in terms of comparisons with other questionnaires, and the plaintiff’s recent evidence). This is why I have set out the psychologist’s analysis above, which shows that the plaintiff’s answers, given in February 2008, to the psychology questionnaire revealed, among other things, “a low level of pain” and that “pain did not interfere significantly with activities involved in daily life”.
Once again, there is a clear tension between the evidence that the plaintiff gave at trial (of her pre/post attendance pain levels); and what she reported in February 2008.
Changes were made to the plaintiff’s work environment at St Columbus school (an adjustable chair, a footstool, a trolley to put books on, and an adjustable desk which enabled her to stand or sit down to work). The plaintiff also made some changes to how she did her work, breaking tasks up.[103] She also received assistance from the librarian Kate Anderson, or a groundsman, for heavier tasks. All of those things helped.[104]
[103] T 1-34 to 1-35.
[104] T 1-35.
No similar changes were made at Holy Rosary school.[105] There was no evidence before me to explain whether they were asked for and refused; or simply not asked for.
[105] T 1-36.
The plaintiff gave evidence that by the end of the week she was “absolutely exhausted. And the headaches were just becoming extreme”.[106]
[106] T 1-36.32.
On 7 March 2008, the plaintiff went to see Dr Yates, complaining of “migraine with vomiting”. She was given an intramuscular injection of maxolon and tramal.[107]
[107] Exhibit 1, p 7.
Following this, Dr Yates saw the plaintiff twice more in 2008 (in July and August), for unrelated conditions, and then did not see the plaintiff again until 26 May 2009. There being no mention in the notes Dr Yates made in July and August 2008 of any headaches or neck pain, I infer the plaintiff made no complaint of these things when she saw him for those unrelated conditions.
In the meantime, on 28 October 2008, the plaintiff was examined by Dr Greg Gillett, orthopaedic surgeon, at the request of her solicitors, for the purposes of a medico-legal consultation and report. I will address Dr Gillett’s opinion later, but relevantly in this context note the following, in terms of what the plaintiff reported to Dr Gillett, and what he observed on examination.[108] At the end of the section of his report in which he set out the “history” (of the accident and subsequent treatment), Dr Gillett recorded that:
“[The plaintiff] advises that in fact the pain clinic helped considerably in relation to her overall management of her condition. WorkCover ceased her claim and recommended she go back to work. She did to (sic) back to work and did the pain management clinic and then has remained working subsequent to that. The pain management clinic has been successful enabling her to cope in her functional capacity and improvement.
… She manages herself with exercises and stretches. If she does not do these exercises and stretches and self management techniques, she gets increasing pain and discomfort in the neck and head.
She has remained working since returning to work and is now doing full duties.”[109]
[108] Exhibit 3, report of Dr Gillett dated 28 October 2008.
[109] Exhibit 3, pp 2-3.
Under the heading “current symptoms”, Dr Gillett records:
“She had modified the way she does tasks and she has to be careful with how she does tasks. Part of her rehabilitation for the Wesley programme was ergonomic advice regarding her computer work and general working abilities. In general terms she does the exercises and stretches and accommodates the condition. Sometimes she gets pins and needles to the fingers. She gets pain in the occipito-cervical area to the head. Turning her head and neck is satisfactory. There is some general stiffness in the right side of the neck and quick movement hurts her.
The headaches are different to the previous migraines that she had. The headaches have improved. She now gets them about twice per month and they last about two days. Medication involves Aspalgin, Aspro Clear and some Mersyndol at times. She also uses medication for nausea. She uses heat packs.
The pain management has reduced the headaches and she was not coping with her pain prior to the pain management programme. She gets pain in the right upper limb towards the trapezial region ranging to the elbow and forearm.”[110]
[110] Exhibit 3, p 3. Emphasis added.
In relation to “activities of daily life”, Dr Gillett recorded:
“She manages tasks at her own pace. With heavy tasks she gets assistance form family members. Driving any distance is an issue and she breaks it up. She required a lot of assistance from the family up until February 2008. Again functionally she improved after the Wesley programme.”[111]
[111] Exhibit 3, p 3.
In relation to her “occupation”, Dr Gillett recorded, among other things:
“She can do her work but she has some difficulties moving the compactus and she has difficulties with computer work requiring her to be diligent with her posture, to get up and move around and change position when required. She modifies computer work. She uses the techniques as described in the Wesley programme.”[112]
[112] Exhibit 3, p 4.
In respect of his own examination of the plaintiff on 28 October 2008, Dr Gillett recorded:
“She indicates upper occipito-cervical, upper cervical and mid cervical pain bilaterally. The range of motion of her neck is limited by a few degrees in each direction associated with some discomfort at extremes of motion. There is no guarding, spasm or asymmetry associated with movement of the neck and there is no neurological deficit in the upper limbs. Shoulder girdle examination is normal.”[113]
[113] Exhibit 3, p 4.
In cross-examination, Dr Gillett agreed that his examination was consistent with the injury having a mild effect on the plaintiff,[114] saying “[s]he examined within the realms of a person with residual symptoms of a mild injury”.[115]
[114] T 1-60 to 1-61; and 1-62.19.
[115] T 1-61.10.
It is apparent that it is Dr Gillett’s record of the plaintiff getting headaches twice per month lasting about 2 days (in October 2008) that is the basis for the pleading to this effect in paragraph [9] of the statement of claim.
It appears that in January 2009 the plaintiff was on holiday in Melbourne. The medical records in evidence include a note of a consultation with a Dr Peter Dwyer at the Albert Park Medical Centre on 11 January 2009. Dr Dwyer’s notes record “3/7 migraine and vomiting”. She was given an injection of morphine and maxolon.[116]
[116] Exhibit 1, p 281.
The plaintiff’s visit to Dr Yates on 26 May 2009 was in the context of the plaintiff travelling to Ireland, and seeking prescriptions for medication and advice from Dr Yates for that purpose.[117] There is no mention in the notes of this attendance of any complaint by the plaintiff about headaches or neck pain. Dr Yates provided the plaintiff with a letter, dated 26 May 2009, “To the Doctor Concerned”. As Dr Yates explained, the purpose of the letter was, in the event the plaintiff suffered an acute attack of migraine while overseas, the information in the letter would assist any treating doctor who saw her. The letter was in the following terms:
“Thank you for seeing [the plaintiff], age 47 yrs. She suffers from migraine & occasionally requires treatment by injection for a severe attack. Most recently she has had metoclopramide 10mg & tramadol 100mg as a single injection.”[118]
[117] Exhibit 1, p 7.
[118] Exhibit 1, p 110.
The letter includes an attached “health summary sheet”, which lists “current active problems” as “migraine”, and “past medical history” as “vaginal hysterectomy”.[119]
[119] Exhibit 1, p 111.
Dr Yates was asked about this letter in cross-examination, in particular, why he made no mention of the soft tissue injury to her cervical spine. His evidence was that as far as he was concerned, “the issue with respect to the neck injury was already resolved at that point”.[120] That is unsurprising when one considers that, apart from the migraine for which he saw the plaintiff in March 2008, he had not seen the plaintiff, for any issue in connection with the motor vehicle accident, since 13 February 2008 (some 15 months earlier).[121]
[120] T 2-37.43.
[121] See also Dr Yates at T 2-42.3-.11.
On 14 July 2009, on her return from Ireland, the plaintiff saw Dr Yates in respect of “URTI”.[122] There is no mention in the records of this attendance of any neck pain or headache. In respect of a later record of a visit to Dr Yates, following a visit to Ireland, the lack of mention of any neck pain or headache after the long flight was put to the plaintiff. Her response was that was because she was taking painkillers and “you’re able to get up and walk around”.[123]
[122] Which I infer is upper respiratory tract infection. Exhibit 1, pp 6-7.
[123] T 2-10.36 to 2-11.27.
Two weeks later, on 27 July 2009, the plaintiff saw Dr Yates, who recorded “[n]ausea and occipital headache since last visit. Not like usual migraine, a little sinus congestion.” Dr Yates’ notes further record “Suggests tension headache, try Endep nocte”.[124]
[124] Exhibit 1, p 6.
Seven months later, on 9 February 2010, the plaintiff attended on Dr Yates, complaining of “[o]ccipital headache & vomiting”. Dr Yates’ notes record “[p]resumably migrainous”, and he gave her an intramuscular injection of maxolon and tramadol.[125]
[125] Exhibit 1, p 6.
There are visits in March 2010 for another URTI/cough, and then not again until 8 November 2010, on which occasion Dr Yates records “[p]ersisting pain flexor compartment R forearm last 3/52. Probably related to overuse in gym & gardening session. Not tender in either condyle of elbow, main tenderness is in body of flexor muscle. Apparently muscular overuse”.[126]
[126] Exhibit 1, p 6. Emphasis added.
In May 2010, the plaintiff was examined by Dr Saines, Neurologist, at the request of her solicitor.[127] As in the case of Dr Gillett, I will address Dr Saines’ opinion below, but I set out here what he recorded, both from the plaintiff, and on his own examination of her in May 2010.[128] Under the heading “present condition”, Dr Saines recorded:
“At present [the plaintiff] has no persistent symptomatology. She does develop dull aching pain around the back of the neck about once per week. This settles in a couple of hours with Nurofen, Aspirin or Mersyndol. Rarely does the pain become more severe with associated headache and nausea, (perhaps about four times per year) and she needs to attend her general practice for an analgesic injection. By maintaining her exercise program conscientiously she can control the pain.
She has intermittent tingling sensation of the finger tips on several occasions per week. This occurs when using her hands, particularly writing, gardening or holding a book and occasionally when gripping the steering wheel. This is not linked specifically to exacerbations of neck pain.
She undertakes the activities of daily living. She is married with three children. Her hobbies include reading, cooking and gardening.”[129]
[127] Dr Saines was ultimately called by the defendants to give evidence, not the plaintiff.
[128] As set out in his reports dated 21 May 2010 (exhibit 7) and 24 December 2012 (exhibit 8).
[129] Exhibit 7, p 2. Emphasis added.
In cross-examination, the plaintiff accepted that when she spoke to Dr Saines she was doing her best to be truthful, and agreed that she told Dr Saines all of the things set out above.[130] In re-examination, she was asked about her understanding of the term “settled” (where it appears in Dr Saines’ report, where he said her neck pain settles in a couple of hours with medication). She said “it certainly takes the edge off it… the pain in my neck”.[131]
[130] T 1-70 to 1-72.
[131] T 2-13.29-.31.
In relation to the plaintiff’s “past condition”, Dr Saines recorded:
“There is a past history of migraine since her early twenties. She describes this as a frontal headache mainly on the left side associated with visual disturbance, dizziness and vomiting. Currently this may recur about four times per year. It seems different to the headache which followed the accident.”[132]
[132] Exhibit 7, p 2.
He also recorded:
“The condition was managed conservatively and she has benefited significantly from a pain management program and an ongoing exercise program which she undertakes herself now. She rarely requires analgesia if she is conscientious with her exercises. The severe headaches are relatively infrequent and they are suggestive of migraine which she has suffered in the past although the characteristics are slightly different. These headaches are not the result of a direct brain injury and may be triggered by cervical pain and a muscle contraction.”[133]
[133] Exhibit 7, at p 3 (under the heading “opinion”). Emphasis added.
In terms of what he meant by “suggestive of migraine” in this paragraph, Dr Saines’ oral evidence was that “… migraine is an intermittent severe headache. That’s the main characteristic of migraine and then, of course, in association with that people can develop nausea and other symptomatology which have a, you know, a migraine flavour. So it was my opinion that the more severe bouts of headache had a migraine pattern.”[134]
[134] T 2-75.16-.20.
In relation to the words “although the characteristics are slightly different”, he said:
“Well, I think there was a distribution. I’d have to go back and look at this a little bit more, but I think the distribution was a little bit different. And she felt that there was some variation from what she experienced previously, but we – you know, I guess from experience migraine can be variable in its distribution and its quality. And I would believe that the intermittent pattern is the dominant feature which made me believe that those more severe headaches which occurred – I think I said – I think I wrote down here perhaps about four times a year – were of a migrainous type”.[135]
[135] T 2-75.26-.33. Emphasis added.
On his own examination of the plaintiff, Dr Saines recorded:
“On examination there was a full range of cervical movements with no neck deformity or muscle spasm. There were no abnormal neurological findings. Tinels sign was positive at both wrists more so on the right side and Phalen’s test was positive on the right side.”[136]
[136] Exhibit 7, p 3.
The two amounts above add up to $33,290.10, which I will round up to $33,500 as the award for past economic loss.
Interest will be awarded on the amount of $21,652 (being the total of $33,500 less the workers’ compensation payments of $11,848) at the rate of 1.165% for the period from the date of the accident to judgment (a period of approximately 7 years and 9 months), which is $1,954.90.
An amount for past superannuation will be awarded, at the agreed rate of 9%, which is $3,015.00.
Future economic loss
The plaintiff’s claim for future economic claim was calculated, in the first instance, on the basis of a precise amount calculated by reference to the average net weekly amounts she was earning in her Centacare job (four afternoons a week) and her job at Holy Rosary School (on Fridays). This was said to equate to an ascertainable amount of future economic loss of $144,967.16 (once discounted for various contingencies).[241] However, an alternative claim for a global sum of $100,000 was also made, under s 55 of the CLA, on the following basis:
“[The plaintiff] is presently 53 years of age. She has suffered actual loss of earnings as a consequence of the injury sustained. In relation to her ongoing employment with Brisbane Catholic Education her tasks have been modified to enable her to continue her employment. She has required specialised equipment and the provision of assistance by co-workers in order for her to carry out her tasks. If her employment at Brisbane Catholic Education were not to continue, there is no way she could avoid disclosing her injury on (sic) any potential new employer. Consequently [the plaintiff] is vulnerable in the open labour market given her age, employment history and the nature of her injury”.
[241] Paragraphs 69-73 of the plaintiff’s submissions.
For the reasons I have outlined above, I do not accept that the plaintiff’s decision to reduce her workload in May 2011 can be said to be causally related to the injury she sustained in the accident.
But I need also to consider whether there is any basis for an award of damages for loss of future earnings, on a global basis.
Relevantly, by s 55(2) of the CLA, the court may only award damages if it is satisfied that the person will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
In order to recover an award for economic loss it must be demonstrated that the injured person’s negligence-caused impairment has resulted in loss in monetary terms.[242] The principle was confirmed in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ:
“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in additional to general damages for pain, suffering and loss of enjoyment of life. It is that ‘the diminution of … earning capacity is or may be productive of financial loss.’”[243]
[242]See Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [48] and [51] per White JA (although her Honour was in the minority as to the result in that case, the general principles summarised by her Honour were not called into question by the majority’s reasoning).
[243] Emphasis added.
On the basis of the findings I have made above, I am not satisfied the plaintiff has proved that her earning capacity has been diminished by reason of the negligence-caused injury. Accordingly, I do not allow any amount for future economic loss.
Future care
The plaintiff’s claim is put on the basis that she needs assistances with the heavier household tasks, such as vacuuming, mopping etc. Although at present her husband assists with these tasks, and to a lesser extent some of her adult children, if they were not there to assist, she says she would need to pay someone.
It is apparent that, in the plaintiff’s household, there is now greater balance in terms of responsibility for household tasks. They are shared at least as between the plaintiff and her husband, with some assistance from some of their children, now adults, who also live with them. The plaintiff is now free to do some other things, like going to the gym on a Saturday, while family members assist with the house cleaning. All of that is a good thing. It was no doubt prompted by the plaintiff’s accident in the first place, when she clearly could not have carried the burden of the housekeeping she previously did. Hopefully it will continue. But in any event, on the basis of the findings I have made above, I am not satisfied that, even if such expenses would be incurred in the future, that can be said to be on the basis of her accident-caused injury.
Future expenses (special damages)
The plaintiff claims a global amount for the cost of future pain relief medication ($1,000). The defendant submits that no amount should be allowed for this.
It follows from the findings I have made above, that no amount can be awarded for future medication.
Summary of damages to be awarded
In summary, for the reasons set out above, damages are assessed as follows:
General Damages $ 4,000.00 Past economic loss $33,500.00 Interest on past economic loss $ 1,954.90 Past superannuation $ 3,015.00 Past special damages (agreed) $12,210.98 Fox v Wood (agreed) $ 3,262.00 Total $57,942.88
There will be judgment for the plaintiff in the amount of $57,942.88. I will hear the parties as to costs, and to that end propose to direct that any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 14 days.
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