Mullan v Cork - [1999] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MULLAN -v- CORK [1999] WADC 98

CORAM: MACKNAY DCJ

HEARD: 25, 26 OCTOBER 1999

DELIVERED : 28 OCTOBER 1999

FILE NO/S: CIV 2477 of 1998

BETWEEN: AGNES NUALA MULLAN
Plaintiff
AND
EDNA MAY CORK
Defendant

Catchwords:

Damages - Assessment - Personal injury - 35 year old female psychiatric nurse at time of accident - Soft tissue injury to upper spine - Plaintiff entitled to damages in sum of $10,810 including non-pecuniary loss $9,210

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 WA, s3C

Result:

Claim allowed

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: K N Allan

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

Kandic v Kandic, unreported; DCt of WA; Library No D5208; 20 December 1996
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Wylde v Aristondo'arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

MACKNAY DCJ:
Introduction

The plaintiff was born on 21 December 1963 in Ireland.
On 26 March 1997 the plaintiff sustained soft tissue injuries to the upper back when her motor vehicle was struck from the right by another motor vehicle then being driven by the defendant.
Liability is admitted by the defendant and the matter is one for an assessment of damages only.
Pre‑accident history
The plaintiff trained as a psychiatric nurse in Ireland but, apparently with many of her peers, was unable to obtain work in a hospital in that field and as a consequence did geriatric nursing there.
The plaintiff came to Australia about three years ago and obtained work as a psychiatric nurse at Fremantle Hospital, her duties being in the secure ward operated there for highly dependent patients.
Although the date of the plaintiff's original qualification as a psychiatric nurse was not provided, she said her experience extended over 13/14 years.
The plaintiff has been in a de facto relationship with Keiran Doyle for 10 years.
Accident
On 26 March 1997 the plaintiff left Fremantle Hospital in her motor vehicle with the intention of driving home. That vehicle was a 1987 model Toyota Corolla.
As she commenced her journey another motor vehicle, being that apparently driven by the defendant, came through a give way sign and struck the plaintiff's vehicle on the righthand side, causing damage to the righthand front and righthand side of the plaintiff's vehicle.
As a consequence the plaintiff's vehicle, which she had purchased for about $4,000, was a write-off.
The plaintiff said that immediately following the accident her main symptom was of shock and that she felt "really shocked". As her husband was not available the plaintiff said that she was obliged to obtain a taxi home. On arrival there she had pain on the left side around the trapezius muscle, the left shoulder and also the neck.
On the following day the plaintiff said that she attended Dr Lewis at the Belridge Medical Centre (the medical centre) and was examined by that doctor and advised to take medication.
The plaintiff then took the following week off, but said that had already been arranged as she and her husband had visitors from overseas. During that period, however, she said that she mainly rested.
The plaintiff's symptoms at that point were, she said, pain in the left neck area, shoulder and down the trapezius.
Dr Lewis is not apparently available but in a report of September 1999 set out her understanding of the note that she made on the plaintiff's attendance on her on 27 March 1997. Dr Lewis said that she relevantly recorded that the plaintiff complained of pain on the left side of her back, and on examination of the back the plaintiff was found to be tender on palpation to the left of the dorsal mid‑spine. She was then advised to take simple analgesics as necessary and to return for further review.
The plaintiff did subsequently return to the medical centre, but did not see Dr Lewis again.
Post‑accident history
The plaintiff said that a few weeks after the accident she began to experience headaches which gradually became worse, particularly in August 1987 when her neck symptoms were more severe. These were different, the plaintiff said, to migraine headaches which she sometimes had experienced prior to the accident.
At the end of her leave the plaintiff had returned to the Fremantle Hospital secure ward, but said that she was able to avoid physical work by calling for assistance.
Heavy physical work only arose in the secure ward when patients had to be restrained, the plaintiff said, and after the accident it had not been necessary for her to so restrain any patient, although she had been involved by giving medication to a patient under restraint.
In 1997 Dr Pang of the medical centre referred the plaintiff to physiotherapy and she has periodically undergone that treatment since.
Although the symptoms were initially on the left side the plaintiff said that she later experienced symptoms on the right side of the neck and shoulder, brought on she thought as a result of use of that side of the body to avoid use of the left side, including use during housework. She had required physiotherapy for her symptoms on the right as well, the plaintiff said.
At some point the plaintiff terminated her employment at Fremantle Hospital and commenced employment as a psychiatric nurse at Joondalup Hospital.
The reason for that change in employment was proximity, the plaintiff said, Joondalup Hospital being only about 15 minutes drive from her house.
At Joondalup Hospital the plaintiff has not worked in a secure ward and her duties include counselling and taking groups, the work being less physical than at Fremantle Hospital, she said.
The plaintiff has also chosen to work nightshift every second month, as the work is easier then, she said.
She has had a few days off, when her neck symptoms have become more severe, including times when physiotherapy treatment has made her neck worse the following day, the plaintiff said.
In mid‑1998 the plaintiff sustained a hand injury at work when a patient kicked a door whilst the plaintiff was opening it. As a result she was not able to use her right hand for a period and that also exacerbated the right shoulder so that she required physiotherapy for that, the plaintiff said.
Massage to the neck and shoulders, performed by a work colleague gratis until a month ago when that colleague departed, has also been a benefit, the plaintiff said. It would cost about $25 for that massage to be done professionally, the plaintiff said.
Since the accident the plaintiff said that she had taken analgesics, and also anti‑inflammatory medication by way of Voltaren, that being taken periodically since 1997, including for a period of two weeks prior to trial.
The plaintiff said that at present her symptoms were mainly in the neck on the left, although over the last couple of days she had experienced such down the back as well, perhaps brought on by stress.
The plaintiff said that the periodic physiotherapy she underwent kept her symptoms localised.
Although she thought she had undertaken three sets of physiotherapy treatment this year, the first two being twice weekly treatment for a month, and the last being for a period of about two and a half weeks up to trial, when shown accounts for three treatments only up to 1 June 1999 the plaintiff said that it was possible she had only had that amount of treatment up to that date.
As a result of her injuries the plaintiff said that housework took her twice as long as previously and also stressed her.
Although prior to the accident she had been a member of a health club and had attended three times per week after the accident she had not been able to use any weight based equipment and had cancelled her membership.
Mr Doyle had found it necessary to provide hot packs and hot water bottles for her when she experienced right-sided symptoms, the plaintiff said.
In the future the plaintiff thought that she would require physiotherapy from time to time with massage in between, as she considered that massage once per week had appeared to keep her symptoms at bay.
In relation to her symptoms the plaintiff also said that she experienced occasional spasms when she turned or whilst reversing her car.
In relation to future work the plaintiff said that she was undertaking a diploma in an alternative treatment regime, aromatherapy, and intended to introduce that into her workplace. She hoped that she would be able to do something herself in relation to that "down the line".
Medical evidence
The plaintiff's referral to physiotherapy by Dr Pang was on 8 August 1997, that being the first occasion on which that doctor saw the plaintiff. According to subsequent reports Dr Pang recorded on that occasion that the plaintiff had very tense and tender muscles from the upper neck down to the upper back. In addition to advice that the plaintiff undergo physiotherapy, Dr Pang had prescribed anti‑inflammatory medication.
In evidence Dr Pang said that he assumed the plaintiff's pain on that occasion had involved her whole neck and back and not merely the left.
Dr Pang saw the plaintiff for a second and final time on 24 October 1997. That related to the pain in the right shoulder, the plaintiff initially being seen in relation to that by Dr Preetham on 1 October.
Dr Pang recorded, and said in evidence that it had been his view, that the plaintiff's right shoulder pain had arisen from overuse of that side of the body due to her left‑sided symptoms. He also recorded that the plaintiff's left shoulder and neck pain had improved with physiotherapy, and subsequently reported that the pain in her left upper back and neck had been minimal on that review.
In relation to the right shoulder there was mild tenderness over the joint, without evidence of impingement, and anti‑inflammatory medication and gentle swimming were prescribed.
In his last report of July 1999 Dr Pang stated that, based on his findings at the time of the second review, the plaintiff's condition should improve with time provided the injury was not aggravated. The plaintiff would require analgesic for pain, and possibly physiotherapy or some other modality of treatment should the condition persist or worsen. Although the plaintiff ought avoid heavy lifting, she should be able to continue in full‑time employment as a psychiatric nurse.
As to prognosis, in evidence Dr Pang said that an injury like that of the plaintiff's did tend to improve with time, the extent of the latter being dependent on the severity of the original injury. That the injury should persist for about two and one half years was not unreasonable, in Dr Pang's further view, and he said that he had seen such hang on for five/six years.
Dr Preetham, also of the medical centre, reported that on 1 October 1997 the plaintiff complained of pain in the right shoulder with limitation of movement. The left shoulder was improved at that stage and the right shoulder pain was attributed to overuse consequent on a restriction in the ability to use the left upper limb as a result of the injury sustained in the motor vehicle accident.
The plaintiff had been treated with physiotherapy and anti‑inflammatory medication and her symptoms improved significantly, Dr Preetham noted, and when reviewed on 9 February 1998 the plaintiff was significantly better, with a positive attitude towards recovery. At that stage the plaintiff's functional limitation was noted as "lifting at work, swimming and unable to continue with her gym programme".
In a second report, of August 1998, Dr Preetham reported the plaintiff's right hand injury at work in June 1998 had apparently caused an exacerbation of the right shoulder pain.
At that stage Dr Preetham expected that the plaintiff's symptoms would settle with time, with possible exacerbations of her symptoms off and on which would become less frequent in time. Those could be managed with medication and if necessary short courses of physiotherapy. It was not necessary to impose any restrictions on the plaintiff with reference to her work or her hours of work as a psychiatric nurse, and the doctor said that she did not expect the plaintiff's injuries to interfere with her work.
In February 1999 Dr Preetham reported that the plaintiff said the symptoms in her neck were better and any exacerbations less frequent. However, the plaintiff's headaches had increased in frequency. An x‑ray of the cervical spine taken in February 1999 was unremarkable.
On 15 October 1999 Dr Preetham again reviewed the plaintiff, and reported that the plaintiff had complained of an exacerbation of neck pain, mainly involving the left side, for the previous week, that being helped by physiotherapy. The plaintiff was coping well with work and was at full duties. Attendance on a masseur had helped her symptoms significantly. Dr Preetham's stated view was that the plaintiff would continue to improve, but may suffer episodes of exacerbation which could quite easily be managed with simple analgesia and physiotherapy if required.
In relation to the massage, Dr Preetham said in evidence that she had seen patients improve with massage, but would recommend that the plaintiff undertake a home physical activity regime and not receive massage on a weekly basis, but rather reserve that for exacerbations.
As to the future, Dr Preetham said that the frequency of the exacerbations suffered by the plaintiff had decreased, but such had not ceased altogether. She hoped that the plaintiff would become symptom free, but it was hard to say whether that would occur, and necessary to simply wait and see.
The plaintiff also called her physiotherapist, Ms Allison Manners, who said that she first saw the plaintiff on 13 August 1997, and has treated her since that time.
It appeared from an account to the plaintiff from Ms Manners that the initial treatment from August 1997, and which went on to late October 1997, required 17 visits.
The plaintiff then required 13 treatments in January and February 1998, and a further 19 treatments between late May and the end of the year.
In 1999 the plaintiff attended Ms Manners on three occasions to the end of March, on a further four occasions in May and June, and on four occasions during October, the last being on 21 October 1999.
Ms Manners said that she initially treated the plaintiff in the area of her lower cervical spine and upper thoracic spine, with the latter area extending into the shoulder blade, the treatment being to both sides of the body but with a bias to the left. In the course of administration of her physical therapy Ms Manners said that she detected stiffness on the left including in the trapezius muscle.
In 1998 the plaintiff was then treated for right shoulder pain, as well as being given bilateral treatment, Ms Manners said.
In 1999 the plaintiff's treatment had not been in relation to any localised right‑sided pain but had involved treatment on the right and left, Ms Manners said, with specific treatment to the cervical spine and the thoracic spine on the left.
The cost of a single treatment was now $38, but was due to rise to $40 at the end of the year, she said.
The plaintiff has also seen a rheumatologist, Dr Jack Edelman, initially at the request of her solicitors in September 1997, then in August 1998, and finally in July 1999. Dr Edelman was not apparently available as a witness and reports issued by him consequent on each review were instead put forward.
In September 1997 Dr Edelman reported that the plaintiff complained of discomfort mainly in the left side of the neck which radiated down the cervical musculature and out along the trapezius muscles. It was said there was a constant awareness of muscle discomfort in that area, with occasional tightness in the mid‑thoracic area, and difficulty in turning the head to the left especially when reversing a car. The plaintiff said she also found it difficult to get back to some aerobic activity.
Examination had revealed only minor tenderness to palpation in the upper left cervical area, with some decreased rotation both to the left and right; other movements were reasonable as were shoulder movements, Dr Edelman stated.
In the doctor's view the plaintiff still had symptoms attributable to her accident and needed to continue physiotherapy and her own home exercise programme. He thought that as time went on the plaintiff would improve and was sure that she could remain at work as a psychiatric nurse without any interruption.
Following his review in August 1998 Dr Edelman reported that the plaintiff's neck seemed to have improved, with the discomfort tending to be present about once a week. The major discomfort was, however, centred around the plaintiff's right shoulder, he said, and that awoke her at night as well as providing discomfort during the day. The examination had produced similar results to the prior occasion.
At that time Dr Edelman considered that the plaintiff would retain her symptoms in the immediate future, but he expected that as time went on she should still improve. Although fit to remain at work as a psychiatric nurse the plaintiff would have to watch how she lifted and would need to avoid any heavy patient lifting, he said.
Then, in July 1999 Dr Edelman reported that the plaintiff said that she still attended physiotherapy and also found massage on a weekly basis helped quite a lot. It appeared that her symptomatology waxed and waned. The plaintiff also said that her shoulders were better but her neck still troubled her, the discomfort being mainly on the left side of the cervical spine with radiation down along the shoulder musculature. Sudden movement could produce spasm and worsening of the discomfort. The plaintiff also said that she found activity around her house such as housework increased the severity of the neck discomfort so that she was obliged to do the housework quite slowly.
The plaintiff's condition on examination was similar to that previously found, and Dr Edelman said that the plaintiff still had ongoing symptoms and remained "rather static" from his previous report. The plaintiff seemed to gain benefit from physiotherapy and massage and he said that "I guess" that needed to continue. He said that he would still expect that as time went by there should be "slow gradual improvement". There was no problem with the plaintiff remaining at work as a psychiatric nurse.
Assessment of damage
In Kandic v Kandic, unreported; DCt of WA; Library No D5208; 20 December 1996 I set out my understanding of the way in which it was necessary to carry out an assessment of non‑pecuniary loss pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 WA (the Act), and I would follow that approach here.
There is nothing in the reasons for decision of Franklyn J (with whom Malcolm CJ and Kennedy J agreed) in Wylde v Aristondo'arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, to which I was referred by counsel for the defendant, which would suggest that any other method of assessment ought be adopted.
My initial task therefore is to ascertain, pursuant to s3C(2), and in relation to the amount of any damages to be awarded for non‑pecuniary loss, the appropriate "proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded".
Section 3C(3) of the Act provides that the maximum award for non‑pecuniary loss is "Amount A", but that "may be awarded only in a most extreme case".
Amount A is at present $219,000.
Plaintiff's claim
The plaintiff gave her evidence in a satisfactory manner. No real challenge was made to her credit and I have no difficulty in accepting her evidence as truthful.
The plaintiff experienced, I would find, as a result of the accident, significant symptoms in her cervical spine and thoracic spine, particularly on the left, with extension into the shoulder, and as a consequence, and through overuse of the right side, for a period symptoms of a similar magnitude in the neck and shoulder on the right side.

The plaintiff also experienced headaches for a period, those being of a different kind to headaches experienced before the accident.
For her problems the plaintiff has required ongoing medical assistance and a substantial amount of physiotherapy, together with medication.
The plaintiff's ability to do her work was impaired for a period.
The plaintiff's ability to do her housework has been impaired to the extent that such now requires double the time, and is accompanied by the onset of stress.
The plaintiff is still symptomatic and also experiences periodic exacerbation of her condition, such that she finds physiotherapy and anti‑inflammatory medication is required to relieve her symptoms. The impact on her life of the injury has been, and remains, real.
I also accept the evidence of Dr Preetham and Dr Pang that the plaintiff's symptoms have been due to the accident, and also the prognosis of Dr Preetham to the effect that it cannot yet be said that the plaintiff will become symptom free in the future. In relation to that, and in the light of the treatment, particularly physiotherapy treatment required by the plaintiff over the last year, there would seem a reasonably likelihood that the plaintiff will have ongoing periods of exacerbation for some time yet, that such will require intervention, and that the plaintiff's condition might not resolve itself.
It is of course the case in relation to damage and the future that no attempt is made to make findings of fact on balance of probability but rather the task of a court is to assess damage by reference to the various possibilities: see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
There is nothing in the Act which would indicate that approach ought not be adopted when the appropriate proportion of the maximum amount is determined pursuant to s3C(2).
Finally, I note that it is now two years and seven months since the date of the accident.
Heads of damage
In relation to loss of economic capacity, insofar as that relates to the future, counsel for the plaintiff conceded that it would be very difficult for an award to be made under that head, in the light of the evidence. That was in my view a proper concession, as there is no evidence as to the likely practical effect of any inability on the part of the plaintiff to engage in work as a psychiatric nurse which involved ongoing heavy lifting.
The heads of damage in respect of which allowances were sought, together with my findings, are as follows:

Non‑pecuniary loss

In the light of the evidence and my findings as set out above I consider the appropriate proportion would be 9 per cent of the maximum amount. The amount to be awarded is then $19,710 less $10,500, the latter amount to be deducted pursuant to s3C(5) of the Act, the allowance then being $9,210.
Future medical expenses
I agree with counsel for the defendant that, given the uncertainty, the attempt at a precise calculation would produce an illusory result. Doing the best I can I allow $1,500.
Special damages
I was informed that the only item relevant was an agreed allowance of $100 for past travelling expenses and I allow that.
In summary:
Non‑pecuniary loss  $ 9,210.00
Future medical expenses  $ 1,500.00
Special damages  $     100.00
$10,810.00